In this episode of 1st Talk Compliance, Kevin Chmura is joined by Rachel Rose, JD, MBA, as they discuss the False Claims Act in detail. The FCA, one of five federal laws built to combat fraud, waste, and abuse, is the government’s primary fraud fighting tool, with the healthcare industry paying the largest contributor in recoveries for over a decade. Learn not only about how to avoid running afoul of this law, but also some details of cases in which it was violated, and the repercussions those who did so faced. In addition, find out how a proper compliance program can protect your practice in various ways, including staying up to date on cybersecurity training. Kevin Chmura Rachel, welcome to the podcast. Thanks for joining us. Rachel V. Rose Thank you, Kevin, for having me back for another round of a very major healthcare compliance topic. Kevin Chmura It very much is, yeah. This one generates some revenue for the government. So this is one that I think especially in today’s environment, people should be paying a lot of attention to. So as I said in the intro, we’re here to talk about the False Claims Act. It’s one of the most important fraud, waste and abuse laws that applies to physicians and health care practitioners of all kinds. The healthcare industry has consistently been one of the, if not the highest contributor to funds received under the False Claims Act. And it’s essential to be familiar with the law and maintain compliance programs to mitigate that risk. Rachel, I know you spend a fair amount of time in your practice in and around the False Claims Act defending and representing customers and providers. So you’re perfect to cover this topic for us. Wondering, though, if you could give us a brief synopsis of the False Claims Act and why is it unique? Rachel V. Rose Absolutely. So as you mentioned, my practice focuses a lot on the False Claims Act, and I am fortunate to do a lot of compliance work not only around the False Claims Act, but HHS. OIG has identified five important federal fraud, waste and abuse laws. The False Claims Act, the Anti-Kickback Statute, the Stark Law, the Exclusion Authorities, and the Civil Monetary Penalties. And Kevin, as you mentioned, the False Claims Act is really the federal government’s primary fraud fighting tool. And in 2024, there were more than $2.9 billion in recoveries and, moreso healthcare represented over two thirds of that amount. That healthcare trend, as you mentioned, being the largest contributor, has gone on for at least the last decade. And what the False Claims Act does that makes it unique are really, I would say, five main things. But first, the False Claims Act goes back to 1863, and it is also known as the Lincoln Law. Its primary purpose, even back during the Civil War, was to root out fraud that was being perpetrated on the government. So how would that be done? Congress thought about it and said, well, the government could do it on its own if they caught wind of something, or they could insert a provision which gave an individual known as a relator, also known as a whistleblower, the potential to bring fraud to the government’s attention and receive a portion of the recovery. It’s very important to note that a relator and I represented several relators successfully, sometimes with co-counsel, sometimes with not, so I get to see the False Claims Act from the whistleblower standpoint as well. But this notion of being able to represent a whistleblower is the first distinguishing factor. And that’s because most other civil cases, a person can represent themselves on a pro say basis, meaning they don’t need a lawyer. There was a provision in the False Claims Act which in fact requires an individual to be represented by a lawyer. So unless the relator is a lawyer, then the individual needs to obtain counsel in order to file a False Claims Act case. That’s the first thing. Secondly, only the government can choose to open a criminal investigation. So even though certain laws like the federal Anti-Kickback Statute can have criminal penalties or civil penalties associated with them, only the federal government, or if a state has a similar type of law, the state can actually move and bring a parallel criminal investigation in potential proceeding. So that notion that only the government can bring in a criminal case is not unique to the False Claims Act. But what is unique is that a private party can bring a type of case, and that’s how the government learns of something to then potentially open a parallel criminal action. The process for the relator’s counsel is also very different. Normally, if I want to file a lawsuit in federal district court, I have to make sure that either a federal question is involved under 1331, or I need to meet the amount in controversy and diversity of the party’s requirement under 1332. While first, the False Claims Act is a federal statute, so it falls under 1331. So that’s ...
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