Legal Assistance for Pharmacies
What Are Examples of Health Care Fraud in Pharmacies?Health care fraud can be described a making a false or fraudulent statement in connection with the receipt of payment or benefit provided by a health care program. Generally, health care fraud statutes applies to an attempt to defraud both private insurance and government programs.
Example – Automatic-RefillsSetting up a patient with automatic refills may be problematic. Pharmacists often do set up patients with automatic refills, fill these prescriptions, and then submitted a claim of reimbursement for that prescription. The problem arises when the automatic refill was not requested by the patient and you did not inform the patient that you were setting up the automatic refill. The patient does not come back and the prescription is never picked up. Nevertheless, the pharmacist gets reimbursed for the prescription. This would be considered an attempt to unlawfully carry out a fraud on a government benefits program such as this can result in Actions like these may be considered fraudulent and may subject you to hefty fines, loss of your professional license, and imprisonment.
Health Care Fraud Can be Committed by:
- Physical therapists
- Nearly anyone in the medical and health care profession.
Statutes That Regulate Health Care Fraud
While there is a general health care fraud statute, the federal government has created multiple statutes that will cover various acts of fraud on health care. Additionally, the government has created both criminal and civil statutes which could mean both criminal prosecution and civil lawsuits.
Health Care Fraud 18 U.S.C. Section 1347
The regulation under 18 U.S.C. Section 1347 is the most basic form of health care fraud by prohibiting you from making a false or fraudulent claim in order to receive a benefit from a health care benefit program.
In 2014 a pharmacist pleaded guilty to health care fraud and other charges. One of the many acts that she admitted to was submitting insurance and federal benefits claims for a certain type of medical cream that most insurance companies and the federal health care program did not cover.
The pharmacist admitted knowledge about the cream not being accepted but submitted for benefits anyway by labeling the cream as another product. The pharmacist was then paid for the use of the cream.
The claim by the doctor that the cream was a different type than it actually was considered a false statement. That statement was provided to receive a benefit, which the pharmacist did receive.
Anti-Kickback 42 U.S.C. 1320a-7b(b)
The anti-kickback statute, 42 U.S.C. Section 1320a-7b(b), prohibits you from entering into an agreement with someone closely related and conducting business or making fraudulent referrals in exchange for money.
In 2014 a federal jury convicted a pharmacist for prescription kickbacks. During the trial for that case, the jury heard how the pharmacist would pay doctors money for prescribing expensive medications even when they were not needed for any kind of treatment but were still covered by insurance programs, including federal health care and private health care.
The act that is wrong in this situation is that the agreement between the pharmacist and the doctor is unnecessarily fraudulent. These patients do not need these prescriptions, yet they are still paying for them. The insurance companies pay for prescriptions as well. As such, the pharmacist is making money.
The doctor is also getting paid for writing these prescriptions, making those actions illegal as well.
False Statements In Health Care Matters 18 U.S.C. Section 1035
18 U.S.C. Section 1035 prohibits you from making false statements for health care benefits, more specifically, in order to receive a benefit.
One of the biggest ways to be accused of violating this statute as a pharmacist is to falsify the number of prescriptions filled and sold. For example, in 2016 a Wisconsin pharmacist was charged with submitting false and fraudulent claims.
The facts against the pharmacist alleged that he claimed to have filled prescriptions and submitted reimbursement claims for those prescriptions. In addition, the pharmacist was alleged to have falsified prescription order of drugs from pharmaceuticals to make it look like he was refilling his supply.
Health Care Fraud Investigations
Generally, most entities who deal with health care are aware of the possibility of fraud. Because of this many of them have set up investigative measures that they take on a day to day basis in the form of audits or in the event that a person is suspected of committing fraudulent acts a thorough investigation may be necessary. These investigations can take place in different ways.
Generally, most businesses, especially those relating to health care conduct audits on the work of their employees. The company you work for may review your stats in accordance with:
- Your number of prescriptions filled or refilled
- Your types of prescriptions
- Your accuracy of completed documentation
- Your accuracy in compliance with regulations
If there are inconsistencies in your records, this could cause them to do a more thorough investigation and likely result in the reporting you to the government.
Government investigations can happen for various reasons. You could be reported by a patient, by employers, or the government could have been conducting a daily activity of monitoring for health care fraud. As you might assume, many different government agencies take part in a health care investigation.
These investigations can include the Department of Health and Human Services, the FBI, and it will likely involve the Criminal Division of the Department of Justice. But these investigations do not stop with the federal agencies, they could also include state agencies and private whistleblowers.
The agency that constantly monitors for health care fraud is the Medicare Fraud Strike Force. This task force that was created in 2007 has its own staff and also uses the resources of other federal and state government agencies to combat health care fraud. One of the daily tasks of staff in the task force is to sift and comb through data to detect health care fraud.
While you could be sued civilly by the federal government, you could also be sued civilly by a private citizen. In the instance that you are sued privately, it is likely that private investigators will be looking into a case against you. However, it is likely that they will not have to do all of the work since some of it was already completed by the government agencies.
Steps To Take If You Are Being Investigated
Around 2007, the federal government created the Medicare Fraud Task Force to specifically combat combat health care fraud.
If you find that you are being investigated. The first thing that you should do is call a federal criminal defense attorney. You can set up an appointment to discuss the actions that could have led to your investigation.
In the meantime, you should evaluate your actions. In this evaluation, you should look to see what you might have done that would have led to an investigation for health care fraud. If you are able to find an activity that you feel may have been improper, do not continue doing whatever it was.
During the investigation, it is possible that the investigators will try to contact you. If you are contacted, it is likely that the government is interested in interviewing or getting documents from you. In any event, you should contact a criminal defense attorney immediately. One of the biggest reasons is that you should seek advice prior to making any statements.
Even if you think that making a statement is going to help your case, it could actually make it worse in the long run. The same goes for providing documents. You do not have to provide documents to the government unless they have a subpoena.
Contacting an attorney will not only allow you to get advice about making a statement, but an attorney will also be able to provide a quick assessment of your case and give some recommendations from a legal perspective. Additionally, if you contact a criminal defense at an early stage, they can get into touch with an investigator to begin negotiations.
If it is alleged that you are part of a bigger conspiracy and scheme, this could be beneficial to you as it could be in your best interest to mitigate the facts against you.
The Legal Process
Civil litigation is different from a criminal trial because of the different procedures that are required. The case is initiated by the plaintiff who files a complaint. In order to defend yourself from the allegations, you will be required to file an answer. During this time the court will hold hearings to set deadlines on the case.
From the time deadlines are set until trial parties will work on preparing the case. This will include issuing subpoenas for:
- Submitting interrogatories
Generally, in answering questions and complying with subpoenas, you will work with your attorney to meet the required due diligence. In the meantime, you will work with your attorney to develop a case for your defense, to either reach a settlement prior to trial or succeed at trial.
A criminal trial is different than a civil trial in a sense that the discovery and evidence almost always be complete by the date of the indictment. This is important to remember as you may find that prior to indictment, investigators will contact you for a statement. To give them one is always a decision you should make after getting the advice of a criminal defense attorney.
The problem with giving a statement is that the things that you say may not help your case. In fact, they can to harm your case. Those statements can be used against you at a later trial. This means that while you do not have to testify at trial, the statements can testify for you. Speaking with an attorney before making them gives you the chance to see how that can affect you.
Once all of the evidence is complete, the prosecuting attorney will determine charges, and the case will be set for Grand Jury to determine that there is probable cause to believe that you committed the charges in the indictment. Grand jury is a secret process.
Generally, the charges are explained to the jury, and a witness then testifies as to the facts that would support the charges. If the jury finds there is probable cause, you will be indicted. Upon indictment, the court will set a hearing to determine trial dates. From then until trial, you will work with your criminal defense attorney to prepare for the case.
Specific Cases Of Health Card Fraud In Pharmacies
Billing For Services Not Rendered
You may be accused of this health care fraud crime as a pharmacist if you placed an automatic refill on a prescription and then submitted a claim to a health care program for reimbursement and at the same time you did not inform the patient of the refill, so they did not pick it up. The basis for the charges is two-fold.
First, you are claiming that you have provided services, but really you have not because it is alleged that your intentions are not to provide those prescriptions to the patient. Second, this will still result in you being reimbursed for the prescription being filled. This example is the same as the Wisconsin case that was explained above.
In this type of case, the investigation could be because the patient noticed something on their insurance statement. It could also be that in an audit, the government noticed you always submit automatic refills. These cases will be investigated by the U.S. Department of Health and Human Services (HHS).
The investigation will likely move on to the FBI and the Department of Justice, depending on the severity of your actions.
A defense for this type of case could be that you submitted the auto refills because you thought it was in the best interest of the patient. The reason for the reimbursement could be because you completed your task in the refill, and you were expecting the patient to pick up the prescription, but they did not.
The outcomes of these types of cases can vary, which is why it is important to have a criminal defense attorney. The attorney can help you come up with a defense by looking at the facts of your case. Generally, the penalties for this type of case, if this is the only charge, will be a fine or a term of prison or both.
Billing For A Non-covered Service As A Covered Service
The facts that could lead to this type of charge for a pharmacist would be similar to those mentioned above where the pharmacist submitted claims for using a non-covered medical cream and titled it as a medical cream that was covered. Generally, an investigating agency will be looking for what you actually did versus what you claimed to have done.
However, having a criminal defense attorney will also be able to look at your case to determine any holes in the facts against you. Looking at the facts of your case will help to develop a defense for your case such as changes in policies that you were not aware of.
Generally, the outcome, if found guilty of this specific charge, will be five years of prison or a fine or both. The facts of your case will give the judge an idea of the type of penalty that should be ordered.
Kickbacks and Bribery
Kickbacks and bribery are likely the most common reason for pharmacists getting accused and charged with health care fraud. Generally, you will be alleged to have been involved in kickbacks if you have entered into an agreement with another medical practitioner who prescribes certain medications in return for money.
For example, different medications cost different amounts of money, the higher the cost, the more the pharmacist claims in a reimbursement. Because of the higher reimbursement, you make more money, and you provide the prescribing doctor more money as well.
Generally, this charge comes with a higher fine than other health care fraud crimes. While the possible term of prison is five years, the possible fine is up to $25,000. However, the development of a defense could make a difference in your case. Working with a criminal defense attorney to thoroughly comb through your facts can change the severity level.
Effects of Health Care Fraud On A PharmacistI f you are charged with health care fraud criminally, it is likely that you will be involved in a civil suit as well. Because of this, these cases can come with many different types of penalties that you were not aware of. Essentially there are three types of civil matters that can come with criminal health care fraud:
- Civil Monetary Penalties Law – related directly to the Anti-Kickback statute 42 U.S.C. 1320a-7b(b) to apply civil penalties to a criminal case,
- Physician Self-Referral / Stark Law – 42 U.S.C. 1395nn
- False Claims Act – 31 U.S.C 3729-3733
- Job loss
- Professional network loss