American Criminal Law Review Volume: 49 Issue: 2 Dated: Spring 2012 Pages: 863-928
In reviewing Federal statutes designed to combat fraud against publicly funded Medicare and Medicaid, this article addresses the statutes' elements, legal defenses, penalties, and safe harbor provisions.
The U.S. Congress's response to the increase in Medicare and Medicaid fraud and abuse has been to strengthen existing statutes. This has resulted in a statutory and regulatory scheme that creates civil and criminal sanctions for any person or legal entity that provides health care goods or services in a fraudulent or abusive manner. The Medicaid False Claims Statute criminalizes false statements or representations in any application for a claim of benefits or payment, or the disposal of assets under a Federal health-care program. The Medicaid Anti-Kickback Statute prohibits knowingly and willfully paying or receiving any remuneration directly or indirectly, overtly or covertly, in cash or in kind, in exchange for prescribing, purchasing, or recommending any service, treatment, or item for which payment will be made by Medicare, Medicaid, or any other federally funded health-care program. Congress enacted the Omnibus Budget Reconciliation Act of 1989 (Stark I) in order to counteract the burgeoning costs of health care resulting from physician self-referrals. Stark I prohibit physicians from referring Medicare patients to clinical laboratories in which the physician has a financial interest, absent a safe-harbor provision. The Health Insurance Portability and Accountability Act of 1996 (HIPPA) became the first Federal statute to regulate private health care, and it has increased the Government's power to prosecute health-care fraud. General Federal statutes that have been used to prosecute health-care fraud include the False Claims Act, the False Statement Act, the Social Security Act, and other criminal fraud statutes. Criminal violations under these statutes can result in fines and/or imprisonment. 477 notes
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