Chapter 4. Common FCA Issues

This chapter addresses common types of false claims as well as best practices to avoid False Claims Act (FCA) liability. Topics include: (1) upcoding, which has been a major focus of the enforcement efforts of the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG); (2) medical necessity theories of FCA liability, which typically fall under the “false certification” theory wherein a defendant faces liability for falsely asserting that it has complied with a statute or regulatory requirement by submitting a claim; (3) the “worthless services” theory of FCA liability, which is a relatively new theory that federal courts are increasingly reviewing; and (4) FCA liability related to outpatient observations vs inpatient admissions. This chapter does not address overpayments that must be reported and returned under the Patient Protection and Affordable Care Act’s (ACA) 60-day rule. The 60-day rule is discussed in detail in Chapter 6, “The Medicare and Medicaid Overpayment 60-Day Report and Return Statute.”

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