Statutes

Question 1

False Claims Act

Answer 1

This act is used for when an entity:
-presents or causes to be presented a false or fraudulent claim for payment of approval by the United States.
-Improperly retains an overpayment
-Knowingly make, uses, or causes to be used a false record or statement in order to get a false claim paid or approved by the United States.
-Knowingly makes, uses or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to the govt.
-Conspires to defraud the govt.
® KNOWINGLY:
◊ WITH ACTUAL KNOWLESGE OR TRUTH OR FALSITY
◊ IN DELIBERATE IGNORANCE OF TRUTH OR FALSITY
◊ IN RECKLESS DISREGARD OF THE TRUTH OR FALSITY (RECKLESS IS DOING SOMETHING DESPITE KNOWING THEIR MIGHT BE A RISK IT IS FRAUDULENT. YOU SHOULD ASSUME THERE IS A RISK IN HEALTHCARE AND IT IS ON YOU TO PROVE THAT YOU TOOK STEPS TO AVOID RECKLESS DISREGARD)
-NO SPECIFIC PROOF OF INTENT TO DEFRAUD IS REQUIRED

Question 2

Qui Tam Litigation

Answer 2

This litigations process is:

* Case is filed as Plaintiff ex real because plaintiff is suing on behalf of the US
* Pays a bounty to the Relator for bringing fraud to the attention of the prosecutor
* Relator can be any person, including individuals and companies. May be the employee or ex employee, may be the person who was once involved in the fraud himself. The Relator is only rewarded for bringing new fraud to its attention, so "Second qui tam" doesn't count. 
* The complaint is filed under seal, the US then has 60 days(can be extended) to decide whether to intervene. Until the case is unsealed, then the defendant has no idea there is a case against them. Government may elect to intervene in some or all allegations. Govt can file an amended complaint, seal is lifted, govt attorneys prosecute action
* Government intervenes in 22% of cases
* US is real party in interest. The US may intervene in or move to dismiss action, they may settle over Relator's objection. 
* If the US declines to intervene then the Relator has the right to conduct action, the court lifts the seal and litigation begins, and parties must serve all pleadings on USA throughout litigation, and the US may intervene at any time up until trial as well as veto any settlement for "good cause."

Question 3

31 U.S.C

Answer 3

First to File rule; Second qui tam on same facts is barred

Question 4

U.S.S.G 5k1.1

United States Sentencing Guidelines

Answer 4

“Upon motion of the govt stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. “

Question 5

18 USC 2

Title 18 United States Code 2

Answer 5

Whoever commits an offense against the US or AIDS and abets is punishable as a principle(just as if you did it yourself).
○ This therefore applies all federal crimes to:
§ Solicitation of crimes
§ Inducement of crimes
Assisting in crimes

Question 6

Title 18 of the United States Code

Answer 6

Criminal and penal code of the federal government

Question 7

18 USC 3

Answer 7

Whoever knowing that an offense against the US has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial, or punishment is an accessory after the fact.

Question 8

18 USC 371

Answer 8

If two or more persons conspire either to commit a offense against the US or defraud the US or any agency thereof in any manner or for any purpose and and one or more of such persons do any act to effect the object of the conspiracy, each shall be guilty of an offense against the US.

Question 9

18 USC 1341

Answer 9

Fraud

You came up with a crime to defraud something.
Mail fraud: Big deal because you are dealing with the federal govt when you involve the mail service. FedEx and ups and those other places still count because it is still interstate commerce making it federal.
§ Anything can be mailed! It can be the payment, part of the scheme, or even objects ancillary to the scheme.
○ Wire Fraud: Same as mail fraud but is for: transmits or causes to be transmitted by wire or radio in interstate commerce. Examples of this in healthcare fraud are too numerous because all those claims are submitted online.
○ Mail fraud can be intra-state but wire fraud must be inter-state but the internet is inter-state. So fraud by Internet screws you and makes you the federal governments bitch still.
○ Fraud must be on a material matter, so agency testimony is usually required. What materiality means is still up for questions though.
○ Fraud must involve money or property
Co-schemers are treated like co-conspirators

Question 10

18 USC 1001

Answer 10

False Statements

Whoever in any matter within the jurisdiction of the three govt branches, knowingly and willing fully: falsifies , conceals or covers up a material fact, makes any materially false statement is able to be charged.
○ What is within the jurisdiction of a federal agency? Basically any thing you say to a federal agent. Doesn’t matter if you know they are a federal agent or not.
§ False statements do not need to be made directly to the agency.
§ Your employer may have obligations to share certain docs with the govt.
§ If you lie in those docs, even if you don’t know the employer will share them, that can subject you to 18 USC 1001.
§ Conviction is possible even if agency never got the statement. The agency does not need to rely on your statement.
§ Does not need to involve money or property
Even denying a crime can be a violation of 1001. There’s no exception for an exculpatory no.

Question 11

Scienter and what each circuit court and federal government says about it

Answer 11

1,4,5,8,9th,10th circuits all held that the govt only had to prove that the defendant deliberately made the statement knowing it to be false
3rd and maybe 2nd circuit required that the govt prove that the defendant knew the general unlawfulness of the conduct at issue
Federal court agrees with 3rd circuit after 2014 Supreme Court case

Question 12

18 USC 1028A

Answer 12

Aggravated Identity Theft- reads in part: Anyone who knowingly transfers, possesses or uses without lawful authority a means of identification of another personal shall in addition to the punishment for such felony have two years added on.

Question 13

Malim In Se

Answer 13

Wrong or evil in and of itself

Question 14

Malum Prohibitum

Answer 14

Unlawful act only by virtue of statute (societal law) but not in and of itself.

Question 15

18 USC 1035

Answer 15

essentially section 1001 but specifically for health care. Has to involve a health care benefit program. Supreme. Court doesn’t agree necessarily with the solicitor general on this but there is no case for them to make judgement on regarding this right now. The overlap allows many crimes to be prosecuted with either statute and frequently are. Remember this is criminal,not civil. Federal govt through criminal forfeiture can recover proceeds of fraud even if the govt is not the victim.
Section 1035: not limited to false statements to federal govt.

Question 16

18 USC 347

Answer 16

this is the same as the mail and wire fraud but is for health care and is for delivering of or payment for health care benefits and services.
If you have health care fraud, you only fail to have a mail or wire fraud if the mails and wires were never used, which is just about never.

Question 17

18 USC 1349

Answer 17

Conspiracy to commit health care fraud.

Question 18

title 42 USC 1320

Answer 18

Anti-kickback Act: whoever willing offers or pays any enumeration directly or indirectly, overtly or covertly, shall be guilty of a felony.
The defendant made a payment to induce a person to purchase, lease order or arrange for a service or item for which payment may be paid by Medicare. This is malem prohibitum.

Question 19

Stark Law

Answer 19

prohibits physicians from referring,educate patients to an entity in which the physicians or an immediate family member of the physician has a direct or indirect financial relationship. This is collequially referred to as the self referral law. This law applies only to designated health services. You really can only refer to your cousin safely. Financial relationship can include stock options, under arrangement contract between hospital and a physician owned entity, and indirect relationships is just complicated. Basically if there is any kind of a chain that connects you to the cash, you are screwed. A compensation arrangement is any arrangement involving enumeration, between a physician and an entity.

Question 20

42 Cfr 1001.952.

Code of Federal Regulations

Answer 20

Safe Harbor Law

• Certain kinds of invest,met income such as routine, generally dispersed dividends. This is subject to many additional limitations.
•  Rental of office space or other space in a written arms length transaction that provides only reasonable necessary space.
•  Lease of equipment for more than a year at fair market value in a written, arms length transaction. 
• Personal services contracts for more than a year and do not vary with referrals. 
• Sale of practice.
• Referral services that are generally available,serve suscribers equally, do not dictate care, and meet 5 disclosure obligations. 
• Warranties that are usual warranties.  Payments to bonafide employees.