Berger & Montague's Whistleblower, Qui Tam
& False Claims Act Group represents Whistleblowers alleging
fraud against the government in the healthcare, pharmaceutical and
medical device industries.
State and federal governments pay hundreds of billions of
dollars each year for pharmaceutical drugs, medical devices,
hospital care, outpatient services, physician visits, and nursing
home care. In making payments for these services, the
Government relies on companies and individuals to abide by the law
and to submit accurate reimbursement requests. Unfortunately,
experience has shown that some companies and individuals violate
this "honor system" and submit false or fraudulent requests for
payment. Indeed, whistleblower lawsuits in the healthcare,
pharmaceutical and medical device industries have resulted in
tens of billions of dollars in recoveries. Below are some examples
of the types of fraud against the government that occur
in the healthcare, pharmaceutical and medical device
industries.
False claims involving hospitals and physicians
include, for example:
- Billing for Services Not Rendered -- This is
obvious fraud: billing the Government for a service that
was not provided to the patient.
- Billing for Unnecessary Services -- This scheme
involves providing a service and billing for that service, even
though the patient did not need that type or quantity of
care. For example, a patient only needs a basic eye exam which
costs $75, but the physician orders a CAT scan and related testing
which costs hundreds of dollars more.
- Kickbacks -- Kickbacks are items of value (money,
gifts, trips, meals, etc.) provided by one party
(often the hospital) in exchange for referrals or business from the
other party (usually the physician). For example, a hospital
reimburses a neurologist at twice the "going rate" for his services
in exchange for the neurologist referring all of his patients to
the hospital.
- Stark Violations -- There are complex rules
regarding the ownership interests that doctors and hospitals have
and the making of referrals. It is generally illegal for a
doctor to make a referral to a business which he owns or in which
he has a vested interest. For example, unless a "Safe Harbor"
applies, a doctor may not refer one of his patients to a physical
therapy business that the doctor also owns.
- Upcoding -- All medical procedures and diagnoses
have an assigned "code" which determines how much the physician or
hospital is going to get paid by the government. If a doctor
or hospital knowingly bills for a higher "code" -- and thus is paid
more by the government than the government intended to pay for the
service provided -- fraud has been committed. For example, a
patient is seen for a short time in the Emergency Room, but the
hospital issues a bill for a complex medical visit.
- Fraudulent Cost Reporting -- Hospitals are
reimbursed based in part on how much it costs to run the medical
facility. Cost reporting fraud occurs when a hospital
knowingly inflates its cost report so that it receives extra money
from the government, or where the hospital mischaracterizes the
nature of those costs by reporting that a false percentage of its
medical care was provided to Medicaid or Medicare patients.
- False Certifications -- Many government
reimbursement systems require doctors and/or hospitals to "certify"
that the healthcare services for which reimbursement is sought were
provided in a lawful manner, e.g., in compliance with
state and/or federal law. If a hospital certifies that it
provided radiology services to a patient in compliance with the
law, and it is later revealed that provision of the service was
involved payment of a kickback, fraud has occurred.
- "Unbundling" or "Fragmented" Billing -- Some
medical events that commonly occur at or near the same time,
such as the various medical procedures involved in the birth of a
child, are billed under one code. Fraud occurs when a
physician or hospital knowingly seeks to maximize profit by
"unbundling" or "fragmenting" that code and instead bills for each
procedure individually.
False claims involving pharmaceutical
companies include, for example:
- "Off-Label" Marketing or Promotion -- This occurs
when a company, in an effort to increase sales, markets its drug
for uses not approved by the FDA. There are various methods
that pharmaceutical companies have used to commit this fraud,
including the distribution of medical articles describing off-label
uses, creating speaker bureaus of physicians that tout off-label
uses, utilizing "advisory boards" to promote off-label messages
while providing kickbacks to physicians, and hosting "Continuing
Medical Education" seminars which involve off-label messages and
information. Many of these allegedly legitimate business
practices involve the unlawful provision of items of value (money,
gifts, trips, meals, etc.) to induce increased sales,
i.e., many of these practices can constitute an
illegal "kickback" to the physician.
- "Best Price" Fraud -- Under United States law
governing the Medicaid program, pharmaceutical manufacturers are
required to give the government the lowest or "best" price paid for
a drug by a commercial customer. An example of Best Price
fraud is when a drug manufacturer provides an unrestricted
educational grant, for instance, of $100,000, to a hospital
that purchases its drug, but in fact, the hospital does not conduct
any research, and the drug manufacturer does not factor the "grant"
money into its best price calculations for that drug.
- "Nominal Price" Fraud -- This occurs when a
company provides a drug at a steeply discounted rate (less than 10%
of the average manufacturer's price), but ties the price to certain
conditions, such as market share or formulary position and yet
excludes that discounted rate from the Best Price reported to the
government.
False claims involving medical device companies include, for
example:
- "Off-Label" Marketing or Promotion -- The FDA
regulates the use of medical devices in a variety of ways,
including their approved uses which often are very narrow in
scope. Medical device companies, many of which are relatively
new companies without established compliance programs, may be
tempted to market their products for off-label uses. Off-label
marketing is often combined with kickbacks, i.e., the
unlawful provision of items of value (money, gifts, trips, meals,
etc.) to induce increased sales of the device.
- Defective Medical Devices -- If a medical device
is defective yet the company, knowing about the defect, nonetheless
bills and is reimbursed for same, the government has been
defrauded.
Berger & Montague's Whistleblower, Qui Tam & False
Claims Act Group is familiar with the types of complex
government fraud schemes like those described above and has
the experience and resources necessary to investigate and pursue
virtually any type of fraud against the government arising in
the healthcare, pharmaceutical and medical device industries.
No Fees Without Recovery
Berger & Montague's Whistleblower, Qui Tam & False
Claims Act Group litigates cases on a contingent fee
basis, so whistleblowers do not pay attorneys' fees or court
costs unless there is a recovery.
Contact Us To Learn More
We invite you to learn more about our Whistleblowers, Qui Tam
& False Claims Act Practice Group. For more information or to
schedule a confidential discussion about a potential case, please
fill out the Quick Contact on the right. You can also call us at
(215) 875-4653.