equipment (DME) supplier is not justified by the argument that you would have prescribed that drug or ordered that wheelchair even without a kickback.
FALSE CLAIMS ACT
AMA CODE OF MEDICAL ETHICS’ OPINIONS ON PHYSICIANS’ FINANCIAL INTERESTS
The civil FCA protects the Government from being overcharged or sold shoddy goods or services. It is illegal to submit claims for payment to Medicare or Medicaid that you know or should know are false or fraudulent. Filing false claims may result in fines of up to three times the programs’ loss plus $11,000 per claim filed. Under the civil FCA, each instance of an item or a service billed to Medicare or Medicaid counts as a claim, so fines can add up quickly. The fact that a claim results from a kickback or is made in violation of the Stark law also may render it false or fraudulent, creating liability under the civil FCA as well as the AKS or Stark law. Under the civil FCA, no specific intent to defraud is required. The civil FCA defines “knowing” to include not only actual knowledge but also instances in which the person acted in deliberate ignorance or reckless disregard of the truth or falsity of the information. Further, the civil FCA contains a whistleblower provision that allows a private individual to file a lawsuit on behalf of the United States and entitles that whistleblower to a percentage of any recoveries. Whistleblowers could be current or ex-business partners, hospital or office staff, patients, or competitors. There also is a criminal FCA (18 U.S.C. § 287). Criminal penalties for submitting false claims include imprisonment and criminal fines. Physicians have gone to prison for submitting false health care claims.
Opinion 8.0321 - Physicians’ Self-Referral
Business arrangements among physicians in the health care marketplace have the potential to benefit patients by enhancing quality of care and access to health care services. However, these arrangements can also be ethically challenging when they create opportunities for self-referral in which patients’ medical interests can be in tension with physicians’financial interests. Such arrangements can undermine a robust commitment to professionalism in medicine as well as trust in the profession. In general, physicians should not refer patients to a health care facility that is outside their office practice and at which they do not directly provide care or services when they have a financial interest in that facility. Physicians who enter into legally permissible contractual relationships—including acquisition of ownership or investment interests in health facilities, products, or equipment; or contracts for service in group practices— are expected to uphold their responsibilities to patients first. When physicians enter into arrangements that provide opportunities for self-referral they must:
1. Ensure that referrals are based on objective, medically relevant criteria.
AFFORDABLE CARE ACT
2. Ensure that the arrangement:
(a) is structured to enhance access to appropriate, high quality health care services or products; and
The Affordable Care Act (ACA) is a comprehensive reform law, enacted in 2010, that increases health insurance coverage for the uninsured and implements reforms to the health insurance market. Under the Affordable Care Act, patients who may have been uninsured due to preexisting conditions or limited finances can secure affordable health plans through the health insurance marketplace in their state.
(b) within the constraints of applicable law:
• does not require physician-owners/investors to make referrals to the entity or otherwise generate revenues as a condition of participation;
The ACA:
• Expands health insurance coverage to 32 million more Americans by 2019.
• does not prohibit physician-owners/investors from participating in or referring patients to competing facilities or services; and
• Provides Medicare bonus payments for primary care physicians and general surgeons, as well as increased Medicaid primary care payments. • Increases geographic adjustments to Medicare physician payments in portions of 42 states and territories. • Provides small business tax credits, for which many physician practices are eligible to apply, to assist in the purchase of health insurance for employees. • Replaces some of the worst excesses and abuses of the health insurance industry with strong consumer protections and administrative simplification provisions. • Prevents denials of care and coverage, including those for pre-existing conditions. • Makes health insurance more affordable for families and small businesses through the creation of state health insurance exchanges and the provision of sliding-scale premium tax credits and cost-sharing subsidies.
• adheres to fair business practices vis-à-vis the medical professional community—for example, by ensuring that the arrangement does not prohibit investment by nonreferring physicians.
3. Take steps to mitigate conflicts of interest, including:
(a) ensuring that financial benefit is not dependent on the physician-owner/investor’s volume of referrals for services or sales of products;
(b) establishing mechanisms for utilization review to monitor referral practices; and
(c) identifying or if possible making alternate arrangements for care of the patient when conflicts cannot be appropriately managed/mitigated.
4. Disclose their financial interest in the facility, product, or equipment to patients; inform them of available alternatives for referral; and assure them that their ongoing care is not conditioned on accepting the recommended referral.
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La State Med Soc NEW PHYSICIAN’S GUIDE 33
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