FCA Settlement Clarifies False Claims Liability for Consultants
Billing consultant implicated in healthcare provider’s wrongdoing.
Can I be prosecuted for fraud because of my involvement in submitting a false claim?
This is a common question from medical coding and billing personnel, especially when they have concerns regarding the codes and modifiers they are directed to bill relative to provided healthcare services and supplies. While the short answer to this question is “yes,” there are a number of factors that influence the government’s decision regarding who to prosecute. The following will demonstrate where liability may arise for healthcare business professionals who are involved in coding, claims preparation, denial management, or other services associated with the preparation, submission, and payment of claims for healthcare services and supplies.
A Precedent Is Set
Healthcare business professionals are aware (at least to some extent) that the False Claims Act (31 USC §§3729-3733), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the Program Fraud Civil Remedies Act (31 U.S.C. §§ 3801- 3812), and other common law theories of payment by mistake and unjust enrichment can be applied, not just to the physician or healthcare entity seeking payment, but to any individual that knowingly “causes” the submission of a false claim to a federal healthcare program or program funded, directly or indirectly, with federal healthcare program dollars.
A recent case, which was resolved by settlement, illustrates that while uncommon, healthcare business professionals can be implicated relative to the submission of false claims. The Department of Justice recently brought a case against Arriva Medical, LLC and its Florida-based billing consultant Ted Albin of Grapevine Professional Services, Inc. (doing business as Grapevine Billing and Consulting). The United States intervened in qui tam litigation filed against Arriva, and in doing so, added Albin as a defendant in its amended civil False Claims Act complaint. Albin agreed to pay $50,000 to resolve the allegations that he, through Grapevine, violated the False Claims Act.
In its complaint, the United States alleged that from 2008 to 2017, Albin and Grapevine provided consulting services to Arriva, a now-defunct diabetic testing supplier. The United States alleged that Albin and Grapevine effectively served as the head of reimbursement at Arriva — overseeing Arriva’s reimbursement department, developing Arriva’s policies regarding collection of out-of-pocket expenses, and the submission of claims to Medicare on behalf of Arriva for diabetic testing supplies. The United States alleged that as consultants for Arriva, Albin and Grapevine knowingly caused the submission of false claims to Medicare.
The claims were allegedly false because they were tainted by alleged kickbacks to the Medicare beneficiaries in the form of either free or no-cost glucometers, or the routine waiver of patient out-of-pocket expenses associated with the diabetic testing supplies provided. The United States further alleged that Albin and Grapevine knowingly submitted false claims for glucometers provided to beneficiaries who were not eligible to receive them because they had received a covered glucometer within the prior five-year period.
While we could address the specific issues cited in support of the allegations, that is not what is important or particularly educational about this case. Acting Assistant Attorney General Brian M. Boynton for the Justice Department’s Civil Division summed up the significance of this case for healthcare business professionals by stating that “Consultants must abide by federal requirements when providing Medicare billing advice,” signaling that in addition to pursuing False Claims Act allegations against the healthcare providers and suppliers who submit false claims, this case potentially signals an effort to also investigate the coding, billing, and reimbursement consultants involved in the decision-making process that lead to the submission of false claims.
For those serving as external consultants (including billing service providers) providing guidance regarding code selection, claim preparation, denial management, or patient billing, liability can be mitigated by taking the following steps:
- When providing advice regarding code selection, be certain you have researched payer-specific coding and reimbursement policies. Where ambiguity exists, be sure to either obtain clarification or recommend that your client seek clarification before they make a final decision regarding how to code.
- Avoid development of policies that involve the provision, billing, and reimbursement of healthcare services and supplies without competent legal review. While it is appropriate for you to research and forward relevant payer-specific guidance to a client, be cautious when asked to interpret and make recommendations regarding the meaning of such guidance, and avoid drafting policies with the intent that the client will implement them as drafted. Where draft policies are proposed, do not recommend implementation unless and until the client obtains legal review, especially where there is any possibility of Stark Law or Anti-Kickback Statute liability. If you are not sure whether what is being proposed implicates these laws, get help or walk away.
- Avoid being placed in the position of decision-maker. In the Albin case, Albin was alleged to have personally decided on behalf of his client (Arriva) when to write off co-payment obligations and/or to write off balances for denied claims. These decisions were motivated by a desire to retain the patient as a customer of diabetic supplies, thereby triggering, according to the United States, kickback liability. As a consultant, it may have been appropriate to assist Arriva with the development of an objective hardship policy, but that is not what happened here. It was clear that the United States did not think it was appropriate for Albin to routinely direct Arriva staff to write off out-of-pocket expenses.
Consultants Take Heed
This case has significant importance for third-party billing services and consultants and demonstrates why service as a consultant requires advanced knowledge of not only coding and billing rules but compliance concepts as well. Additionally, consultants need advanced research and writing skills to be able to correctly identify the appropriate payer-specific rules. Consultants must be able to clearly and accurately articulate what they’ve found so their clients can make an informed choice about how to operate their practice or service in compliance with relevant rules and guidance.
When concerns arise about what a client is asking you to do, raise them. Remember, a good consultant is focused on helping the client stay compliant in all aspects of the revenue cycle. When consultants get more focused on getting the claim paid or ways to increase revenue for the practice, false claim or other liability will arise not only for the client, but potentially for the consultant, as well.