Imagine the following scenario: a patient with Medicare sprains her ankle and sees a doctor for one 15 minute appointment. The doctor then bills Medicare as if he had seen the patient for five 15 minute appointments over the course of a month. The doctor figures that Medicare will never notice, and this is an easy way to get extra money. This article addresses this scenario and explains why the doctor would be subject to liability under the False Claims Act (“FCA”).
Medicare and False Claims Act Basics
Medicare is a national healthcare program administered by the federal government that provides healthcare coverage to Americans over the age of 65 and younger Americans suffering from certain disabilities. Unfortunately, Medicare fraud is extremely common, and the FCA is one of the powerful tools used to combat and deter Medicare fraud.
Under the FCA, it is illegal for anyone to submit “a false or fraudulent claim” for Medicare reimbursement. Additionally, the FCA allows individuals with knowledge of Medicare fraud to sue on the Government’s behalf to recover the fraudulently obtained funds. As an incentive for bringing the claims, the FCA also allows individuals to keep a portion of the recovery.
There are various types of Medicare fraud that can form the basis for FCA claims, and this article addresses one type of Medicare fraud: when a doctor or other medical provider bills Medicare for services that are not actually provided.
Medicare Billing Procedure
When a medical provider treats a Medicare beneficiary, the provider must submit a bill to Medicare in order to get paid. Generally speaking, providers submit an electronic claim form to Medicare that uses procedure codes, known as HCPCS or CPT codes, to tell Medicare what services were provided to the Medicare beneficiary. Providers must certify that the information provided to Medicare in connection with reimbursement claims is true, accurate, and complete.
Medicare then reviews the claim based on the information submitted by the provider, and if Medicare determines that a claim is covered, it reimburses the provider. In doing so, Medicare must rely on the information submitted by the provider, including that the services the provider says were performed were actually performed.
Given the enormous size of Medicare, it simply does not have the resources to scrutinize every claim submitted by a provider. Thus, it is critically important that providers submit accurate information when making reimbursement claims.
False Claims Act Liability for Billing Medicare for Services Not Rendered
Claims submitted for Medicare reimbursement by providers can violate the FCA in various ways. The most straightforward type of false claim is when a provider bills Medicare for services that the provider did not actually provide to a Medicare beneficiary.
Using the example from above, if a doctor sees a patient for a single office visit but bills Medicare as if the doctor had seen the patient for five office visits, then the doctor is attempting to get paid for four office visits that never occurred. These claims are obviously false because the doctor is representing to Medicare that he performed services (the four extra office visits) that he never performed.
As Medicare explains to medical providers,
“[w]hen you submit a claim for services performed for a Medicare patient, you are filing a bill with the Federal Government and certifying you earned the payment requested and complied with the billing requirements.”
A provider clearly does not earn payment for services that he or she never provided, and thus, if a provider attempts to do so, the provider is subject to liability under the FCA.
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 31 U.S.C. § 3729(a)(1).
 31 U.S.C. §§ 3729, 3730.
 HCPCS stands for the Healthcare Common Procedure Coding System. CPT stands for Current Procedural Terminology.
 See generally CMS, Medicare Billing: 837P and Form CMS-1500, available at https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/837P-CMS-1500.pdf.
 CMS Form 1500, available at https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/Downloads/CMS1500.pdf.
 CMS, Avoiding Medicare Fraud & Abuse: A Roadmap for Physicians (Aug. 2016) available at https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/Avoiding_Medicare_FandA_Physicians_FactSheet_905645.pdf (“The Federal Government relies on physicians to submit accurate claims when requesting payment for Medicare-covered health care items and services.”).
 Id. (“Examples of improper claims include . . . [b]illing for services that you did not actually render.”); see also Dep’t of Justice, U.S. Files Lawsuit Against Husband-And-Wife Owners of Suburban Health Care Company for Allegedly Defrauding Medicare out of Millions of Dollars (Oct. 17, 2017) available at https://www.justice.gov/usao-ndil/pr/us-files-lawsuit-against-husband-and-wife-owners-suburban-health-care-company-allegedly (discussing a recent settlement agreement in an FCA case that partially involve this type of allegation).