How Industry Seeks to Weaken Anti-Fraud Laws Under the Pandemic

Law360: Now Is Not the Time To Roll Back Anti-Fraud Laws

The False Claims Act is the government’s number one civil enforcement tool for fighting fraud and recovering the billions of dollars lost each year to unscrupulous actors looking to bilk the taxpayers.

At a time when the government is infusing the health care industry with billions in new funds, strong anti-fraud laws are the only way to ensure that patients and taxpayers are protected.

In a recent Law360 guest article, some members of the defense bar argued that liability be disclaimed for violations of the Anti-Kickback Statute and the Stark Law, and resultant violations of the FCA, during the COVID- 19 crisis.[1] In fact, in an emergency such as this, it is more important than ever to protect funds that are flowing into the health care industry.

While most providers are law-abiding, those looking to game the system are chomping at the bit, hoping the government will look the other way so that they can take advantage of the system. We should not be so short-sighted as to let this happen.

Any attempts to gut the protections afforded by the AKS and the Stark Law, and to prevent the government from holding bad actors liable under the FCA, create a serious risk of fraudulent diversion of taxpayer funds intended for the support of the health care industry during this time of crisis.

The Centers for Medicare and Medicaid Services, or CMS, issued blanket waivers to the Stark Law on March 30.[2] The waivers protect physicians and entities from Stark liability with respect to eleven specific types of financial relationships, including remuneration from an entity to a physician that is above or below fair market value, and payments from physicians to entities at less than fair market value for services, space, and equipment.

While some concessions are necessary during a crisis, these waivers go too far toward allowing financial relationships that can lead to fraud and abuse.

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