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Medical Necessity Conflicts Can Lead to a Medicare Abuse Investigation

White Collar Criminal Defense By Harvey Binnall PLLC - 2018/05/24 at 08:46am

Healthcare professionals and organizations often struggle with adhering to the rather complicated, multi-pronged regulatory schemes that — together — establish Medicare fraud and abuse liability under the law.  Medicare abuse (in particular) has been a unique challenge for various healthcare professionals and entities, as the government is increasingly taking advantage of the “subjective” nature of Medicare abuse determinations and imposing civil and criminal penalties at their discretion.

What is Medicare Abuse, Exactly?

Medicare abuse is any practice — systemic or irregular — that imposes unnecessary and unjustified costs on the Medicare Program.  Though Medicare abuse is generally less severe of an offense than Medicare fraud (which involves intentional deception, misrepresentation, and knowledge of such fraud), liability may still expose the defendant to severe penalties, whether criminal, civil, or administrative in nature.

Examples of Medicare abuse include, but are not necessarily limited, to:

  • Upcoding claims
  • Excessive charges for certain claims
  • Billing at different rates
  • Scheduling treatment to maximize reimbursement
  • Billing for unnecessary services
  • And more

Medical Necessity Determinations are a Significant Source of Conflict

Issues involving medical necessity lie at the core of many Medicare abuse actions.

Under the Medicare statute, reimbursement is only allowed for services that are “reasonable and necessary” for the diagnosis or treatment of illness or injury.  If healthcare services rendered are not “reasonable and necessary,” then Medicare coverage will not apply.  Thus, a submitted (unreasonable or unnecessary) Medicare claim may be wrongly interpreted as a false claim qualifying as Medicare abuse.  This creates an environment ripe for disputation.

The government’s position in many cases has been to investigate (and potentially impose penalties on) healthcare providers for submitting Medicare claims that the government does not agree were “reasonable and necessary” given the circumstances.

Fortunately, a mere difference of opinion on whether provided services were “reasonable and necessary” is not sufficient to fuel a Medicare abuse claim.  Medicare abuse will only stand if the facts show that the healthcare provider could not have reasonably believed that the services provided were “reasonable and necessary.”  In other words, the determination must rest on objective facts.

If the difference of opinion is warranted by the objective evidence — for example, if an alternative treatment regimen was ordered as the medical history of the patient indicated that a standard treatment regimen might expose them to a heightened risk of injury — then even if the government does not come to the same conclusion (i.e., that the claim at-issue is “reasonable and necessary”), the assertion of Medicare abuse liability will not stand.

Contact an Experienced Alexandria Medicare Fraud Lawyer for Comprehensive Assistance

Harvey & Binnall, PLLC is an award-winning, boutique litigation firm located in Alexandria, VA, with a particular focus on white collar criminal defense and constitutional law issues, among various other practice areas.  Our attorneys have experience defending healthcare clients in jurisdictions throughout Virginia, Maryland, and Washington DC, and in a broad range of disputes, including those that involve potential Medicare fraud and abuse.

We provide comprehensive, end-to-end legal assistance — to that end, we work closely with clients, serving as their link to state and federal enforcement agencies during the investigation process.  If initial negotiations break down, we are prepared to aggressively represent the interests of our client in litigation.

Call (703) 888-1943 or submit an online claim form to get connected to an experienced Alexandria Medicare fraud lawyer here at Harvey & Binnall, PLLC.