The False Claims Act is Not a Compliance Tool
That's especially true since Renal Care sought guidance from regulators regarding Medicare regulations that could be interpreted in different ways—in other words, that are ambiguous.
These decisions are a relief to a wide range of healthcare providers who are promoting a culture of compliance, but who fall short, nonetheless. After all, CMS is still free to suspend or exclude firms that make these kinds of mistakes, and they don't have to clutter up the court system to do so.
It's common sense, and it makes you realize that when you're dealing with an entrenched bureaucracy, common sense isn't so common.
Howard says the rulings and precedent can be boiled down to the difference between two phrases: "condition of payment" and "condition of participation."
"By submitting a claim, you have to be in compliance with a myriad of regulations. If the violation surrounds a condition of payment, that can give rise to FCA," he says. "But if it's a condition of participation, that is not going to rise to FCA liability."
That doesn't mean you can afford to be lax in Medicare billing or oversight. Suspension and exclusion are still options, and, as Howard points out, "those are not insignificant penalties."
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