OIG's new civil penalties mimic False Claims Act
OIG's new civil penalties mimic False Claims Act
In a proposed rule published March 25, the HHS Office of the Inspector General has finally codified the significantly tougher civil monetary penalties (CMPs) called for in the Health Insurance Portability and Accountability Act (HIPAA) of 1996.
Under the new rules, the OIG could impose administrative penalties of up to $10,000 per case against individuals and entities who defraud HHS programs and beneficiaries. That's five times the amount called for under the old statute contained in the 1981 Social Security Act. Meanwhile, assessments in lieu of damages could increase from double to triple the amount claimed.
These new figures are intended to mirror those of the federal False Claims Act. Under OIG's proposed rule:
s CMPs can be assessed for incorrect coding, medically unnecessary services, and persons offering remuneration to induce a program beneficiary to order from a particular provider or supplier receiving Medicare or state health care funds.
s A new CMP will be established for the false certification of eligibility for Medicare covered home health services. If a physician knows that care is not necessary, he or she may be subject to a CMP of the greater of $5,000 or three times the amount of the Medicare payments made for the home health services.
s CMP coverage will expand to include violations involving all federal health care programs, including CHAMPUS, veterans, and the Public Health Service programs.
s The maximum penalty amount per false claim increases from $2,000 to $10,000.
s The authorized assessment amount increases from double to triple the amount claimed.
The OIG has also amended the "knowledge standard" governing the agency's burden of proof in leveling CMPs. The Social Security Act and OIG's accompanying regulations imposed a "knows or should know" standard of proof for the CMP provisions regarding false claims.
This standard stated that providers must use "reasonable diligence" to ensure that Medicare claims were true and accurate. HIPAA clarified the standard by defining "should know" to mean reckless disregard or deliberate ignorance of the truth. No specific intent to defraud was required.
Under OIG's new rule, the agency proposes to add language defining the term "knowingly" to "clarify congressional intent to apply the [False Claims Act] standard of knowledge to the presentment of a claim under the CMP law."
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