Which Healthcare Law Can Lead to Criminal Liability?
The healthcare industry is subject to a range of laws and regulations aimed at ensuring the provision of quality care and protecting patients from harm. While most healthcare laws are designed to promote professional standards and patient safety, some can lead to criminal liability for healthcare providers, administrators, and even healthcare facilities themselves. In this article, we will focus on the healthcare laws that can lead to criminal liability and the consequences of violations.
The False Claims Act (FCA)
The False Claims Act (FCA) is a federal law that regulates the submission of false or fraudulent claims to the federal government. The FCA is one of the oldest and most powerful laws intended to combat fraud against the government. Any healthcare provider or individual who submits or causes to be submitted, a false or fraudulent claim to the government can face criminal liability.
Criminal penalties under the FCA include:
- Fines of up to $25,000 per offense
- Imprisonment of up to $100,000 or triple the amount of the violation, whichever is greater
The Anti-Kickback Statute (AKS)
The Anti-Kickback Statute (AKS) was enacted in 1972 to prevent healthcare providers and individuals from soliciting or receiving kickbacks, referrals, or other forms of compensation in exchange for steering patients to specific healthcare facilities or services. It is illegal to offer or receive any form of consideration in exchange for referring Medicare or Medicaid patients to others.
Criminal penalties under the AKS include:
- Fines of up to $20,000 per offense
- Imprisonment of up to 1 year
- Exclusion from federal healthcare programs (Medicare, Medicaid)
The Health Insurance Portability and Accountability Act (HIPAA)
HIPAA is a federal law that aims to protect individually identifiable health information (Personal Health Information or PHI) and sets standards for secure electronic transactions. Those who intentionally or recklessly disclose or use PHI are subject to criminal liability.
*Criminal penalties under HIPAA include:**
- Fines of $100 to $50,000 per offense
- Imprisonment of up to 1 year
- Exclusion from federal healthcare programs (Medicare, Medicaid)
The Health Care Fraud Prevent and Enforcement Act (CFE)
The health Care Fraud Prevent and Enforcement Act (CFE) is a federal law passed in 2009. It increases the amount of money that can be recovered in False Claims cases and enhances the criminal provisions of the FCA, AKS, and other healthcare laws.
Trends in Healthcare Fraud Enforcement Under the CFE:
- Increased focus on drug diversion and opioid-related offenses
- Increased use of data analytics and technology in fraud investigations
- Shift from a focus on qui tam suits to a greater emphasis on government-initiated cases
Table of Healthcare Laws and Criminal Liabilities
| Healthcare Law | Criminal Penalties | Consequences |
|---|---|---|
| False Claims Act | Fines of up to $25,000/ offense, imprisonment of up to $100,000 (or triple the amount) | Fines, imprisonment, exclusion from federal healthcare programs |
| Anti-Kickback Statute | Fines of up to $20,000, imprisonment of up to 1 year, exclusion from federal healthcare programs | Fines, imprisonment, exclusion from federal healthcare programs |
| Health Insurance Portability and Accountability Act | Fines of $100-50,000, imprisonment of up to 1 year, exclusion from federal healthcare programs | Fines, imprisonment, exclusion from federal healthcare programs |
Mitigating Criminal Liability Risk
While the consequences of violating healthcare laws can be severe, there are several steps that healthcare providers can take to mitigate the risk of criminal liability:
Conduct thorough risk assessments and internal audits
Identify potential vulnerabilities and correct them before they become costly and time-consuming to repair.
Implement robust internal controls and compliance programs
Establish policies and procedures designed to prevent and detect potential violations.
Train personnel on compliance and fraud identification
Educate employees, contractors, and vendors about the laws and regulations impacting the healthcare industry.
Report suspected fraud and engage in whistleblower protection
Remain vigilant and report instances of suspected fraud to relevant authorities.
Conclusion
Healthcare laws are a critical component of ensuring the provision of quality care and the protection of patients from harm. While most healthcare providers are committed to compliance with these laws, the criminal penalties for violations can have severe consequences. By staying informed about the laws, implementing robust internal controls and compliance programs, and reporting potential violations, healthcare providers can minimize the risk of criminal liability and maintain the integrity of the healthcare system.
References:
• False Claims Act (42 U.S.C. 1320a-7b(a))
• Anti-Kickback Statute (42 U.S.C. 1320a-7b(b))
• Health Insurance Portability and Accountability Act (45 CFR 160.103)
