Criminal Aspects of the Affordable Care Act: A Rise In Medicare Fraud and Anti-Trust - Barth Daly
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Criminal Aspects of the Affordable Care Act: A Rise In Medicare Fraud and Anti-Trust

Implementation of the ACA is going to keep attorneys busy for years.  Many local law firms have already ramped up for the large up-tick in work expected following implementation.  While civil attorneys will see increased caseloads in their traditional field, in many instances they may also need to advise clients of potential criminal consequences.

Compliance with the ACA will be a growing problem..  Federal health investigators have launched 112 new investigations, nearly one-quarter of those deal directly with programs authorized under the ACA.  These investigations have yet to reach Sacramento but they are on our horizon.

The state based health insurance exchanges are an area which, once they are up and running, are going to be a focus for law enforcement.  The idea behind the exchanges is that individuals and small businesses can choose among an array of health insurance options.  Anytime there is a competitive marketplace, particularly a new competitive market place, businesses need to be careful about Sherman Act/Anti-Trust Violations.

Broadly stated, any conduct which has the effect of restraining trade, can violate the Sherman Anti-Trust Act.  Because of the vague language in the Sherman Anti-Trust Act certain partnership agreements among health care businesses might be viewed as illegal.  Two health care companies that agree to focus on different areas of the state so as not to compete against each other might violate the act.  Prosecutors and defense lawyers have been debating this issue in many of the recent bid-rigging prosecutions that resulted from conduct at foreclosure auctions.   It could be years before the appellate courts finish addressing what conduct violates the Sherman Anti-Trust Act.  In the meantime this same issue is likely to arise in ACA implementation investigations.

California and other states are in the process of developing the IT infrastructure to implement the ACA.  This will result in multiple companies bidding on a myriad of government contracts.  This in turn presents more potential for fraud.  Anytime people start talking about procurement, criminal defense lawyers start thinking about procurement fraud.  Procurement fraud occurs anytime a person or a company dishonestly obtains an advantage, avoids an obligation or causes a loss to public property during the procurement process.  The classic example is a kickback but there are any number of other ways this might occur.

Medicare Fraud has been a national law enforcement priority for many years.  With the passage of the Affordable Care Act the opportunity for fraud by doctors, hospitals and other service providers has expanded exponentially.  Bogus billing for services not performed or not needed, inflated bills, and the use of shills to bring in business, are all common parts of Medicare fraud schemes.

Experienced white collar defense attorney Kresta Daly can advise lawyers and their clients about the potential pitfalls in dealing with these new laws.  If you have a client who thinks they may have broken a law, or thinks they are being investigated, the best time to contact white collar defense attorney Kresta Daly is before government investigators arrive.

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