Fraud Enforcement and Recovery Act of 2009

Obama Signs Fraud Enforcement and Recovery Act of 2009 – NY Medicaid IG Says Major Significance for Health Care Providers  Brief From New York Medicaid Inspector General James G. Sheehan:  On May 20, President Obama signed the Fraud Enforcement and Recovery Act of 2009 (FERA).  The FERA is focused primarily on mortgage, banking, and federal stimulus fraud.   However, Section 4 of FERA has major significance for health care providers and managed care plans, and all Medicaid providers. This section, “Clarifications to the False Claims Act To Reflect the Original Intent of the Law:” Redefines “claim” to include  claims submitted “to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf, or to advance a Government program or interest.” This language makes explicit the ability of Government and whistleblowers to pursue subcontractors and contractors with grantees for the claims they submit to contractors and grantees.  This could have a significant effect on health care providers who contract with Medicaid  or Medicare managed care plans, who will now have liability to the United States under the Act. Redefines “obligation” to include “an established duty, whether or not fixed,” arising from a variety of relationships, and specifically includes obligations “arising from statute or regulation, or from the retention of any overpayment.”   This change allows the Government and whistleblowers to pursue knowing violations of regulatory statutes with penalty provisions, such as nursing home quality standards, or Clean Water Act reporting,  as False Claims Act cases, and to pursue false documents which are “material to an obligation to pay or to transmit money . . . to the Government” regardless of whether a false claim has been submitted.   For example, a physician who creates backdated medical records to support a  claim already submitted could be liable under this provision.         Expands the anti-retaliation provisions from only employees to include “contractors and agents” who “act to stop 1 or more violations.”  This provision could protect contracted physicians in a government-funded managed care plan, for example, who took action to stop false reporting or illegal denial of services by the plan. The new language is likely to have a significant impact on the range and number of new False Claims Act cases.  Different provisions have different effective dates. The entire statute can be accessed by going to http://www.govtrack.us/congress/bill.xpd?bill=s111-386  HCCA has scheduled a web conference to address False Claims Act amendments contained in Fraud Enforcement and Recovery Act of 2009, on June 22, 2009, 12 Noon Central time. Check HCCA Website beginning Tuesday, May 26, 2009 for registration information – www.hcca-info.org ***top*** DoJ and HHS Announce HEAT - New Interagency Health Care Fraud Prevention & Enforcement Action TeamOn May 20, 2009 Attorney General Holder and Health and Human Services (HHS) Secretary Kathleen Sebelius announced the creation of a new interagency effort, the Health Care Fraud Prevention and Enforcement Action Team (HEAT), to combat Medicare fraud. Holder and Sebelius also announced the expansion of Strike Force team operations to Detroit and Houston. Medicare Fraud Strike Forces, currently in operation in South Florida and Los Angeles, fight Medicare fraud on a targeted local level. For more: http://www.usdoj.gov/opa/pr/2009/May/09-ag-491.html May 21, 2009 Washington Post reported “Senior Obama administration officials launched a high-level task force yesterday to use technology to help detect and prevent health-care fraud, which robs the nation's coffers of billions of dollars each year.” For more: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/20/AR2009052001782.html