Melissa Jampol Quoted in "Shifting Medicare Model Could Set Fraud Traps for Providers"

Health-care providers could face new False Claims Act hurdles as the Medicare agency continues to move toward reimbursement based on quality care rather than quantity.

It’s an emerging question whether courts will treat failures to comply with requirements for value-based care programs as fraud. The FCA typically is used to go after health-care providers who billed government funded health programs for treatments that were not provided or were upcoded in the current fee-for-service system that pays for quantity of care.

Now, health-care providers will need to make sure they’re complying with all the requirements of participation in value-based programs, as health-care moves steadily toward value-based reimbursement. Not doing so could leave them open to fraud litigation. …

The arrangements can provide several kinds of fuel for False Claims Act cases. “You do see the interaction of three different areas,” Melissa Jampol, a former assistant U.S. attorney who now represents health-care clients undergoing fraud investigations, told Bloomberg Law.

Jampol said value-based arrangements can trigger potential violations of the Anti-Kickback Statute, which prohibits providers from paying for referrals, such as bonuses for a meeting; or the Stark Law, which prevents doctors from making referrals for certain services to places where they have financial relationships. Both kinds of violations can be called false claims and have been pursued as such.

Data analytics play a big part in building fraud cases under DOJ’s current health care fraud initiatives and, as a result, because value-based arrangement often generate significant amounts of data, any incorrect data could potentially be the basis of FCA liability, as the relator alleged in this matter.

“I think this is an area where we’re going to see more enforcement action,” Jampol, now with Epstein Becker & Green in New York and Newark, N.J., told Bloomberg Law.