To hold a healthcare provider liable under the False Claims Act, the government must prove that the defendant “knowingly” submitted false claims to government healthcare programs. Importantly, though, the “knowingly” threshold is lowered in the FCA context, only requiring a preponderance of the evidence to prove that the defendant acted in “deliberate ignorance” of the fraud or “reckless[ly] disregarded” the fraud.

When it comes to healthcare fraud cases, a healthcare provider can be held liable under the FCA when it ignores the results of internal audits, which show evidence of overpayments due to upcoding or other fraud.  For example, to bill Medicare for hospice care, the hospice provider must ensure that the patient is terminally ill before the individual can be admitted. Hospice providers will ensure employee compliance with this requirement by conducting internal audits and “mock surveys” of employees.

A recently filed complaint-in-intervention, alleged that Creekside Hospice fraudulently enrolled patients in hospice care and altered medical records to keep them there, to secure increased Medicare and Medicaid reimbursements. According to the complaint, the provider knew of the problem years ago after it conducted internal audits and mock surveys.

More information for whistleblowers is located at the Nolan Auerbach & White website.