By Kim Stanger

Healthcare attorneys and their clients are generally aware of and take appropriate steps to avoid the severe penalties that may follow fraud and abuse of government payor programs such as Medicare and Medicaid. They may be less attuned to their potential liability in private payor situations and, consequently, more cavalier when considering mistakes, misconduct, and potential repayments to private payors, including patients, residents, insurers, or other third parties. Red flag situations may include, e.g., waiving copays or deductibles; providing patient or resident discounts or other inducements to receive services, especially for out-of-network patients; kickbacks or similar arrangements to induce referrals; billing and coding errors; false claims; billing for medically unnecessary services; billing for services that were provided by unlicensed or uncredentialed providers or misrepresenting the provider of services; failing to comply with coordination of benefits or secondary payor rules; double payments; claims that lack sufficient documentation; or claims for substandard care. Whether due to business concerns or regulatory mandates, private payors seem to be increasingly active in monitoring and responding to potential provider fraud or abuse. This memo will summarize some of the statutory, contractual, and common law bases for private payor enforcement. Read more