Whether you agree with it or not, 2010’s Affordable Care Act (ACA) was a game-changer when it comes to health insurance. What you might not know is that the ACA also strengthened some rules with regard to the False Claims Act (FCA), also known as the “whistleblower law.” At the same time, unfortunately, the ACA has also opened up more opportunities for people to commit fraud.
ACA Changes to the False Claims Act Affecting Whistleblowers
One positive change for whistleblowers is that certain provisions of the Affordable Care Act make it easier to bring a case by significantly limiting what is known as the “public disclosure bar.” In essence, the public disclosure bar used to require that the court dismiss a claim brought under the FCA if it turned out that the case’s allegations were based on public information not brought to the case by the relator (the person who brings a qui tam suit under the FCA). Although the courts remain divided over whether a public disclosure should still place a jurisdictional limit on cases, claims are no longer required to be automatically dismissed because of the disclosure. This is partly due to a revision as to what constitutes “publically disclosed,” which lowers the bar for relators.
Other changes that the Affordable Care Act made to the FCA that affect whistleblowers involve the anti-kickback statute (AKS) and overpayments:
- Violating the AKS can be a foundation for bringing a false claims suit under the FCA.
- It is no longer required that a person have actual knowledge or a specific intent in order to be considered a violator of the AKS.
- Failing to report and return overpayments to the government creates a per se violation, meaning no intent to defraud needs to be proven. The ACA has set a 60-day deadline to report and return overpayments, with some exceptions.
Examples of Actionable Fraud under the ACA
The insurance companies that sell policies in the health care marketplace receive billions of federal tax dollars. Where there is money, there is always the potential for fraud. If you work in the health care insurance industry or other related businesses, you may be interested in the following fraud scenarios. It’s possible a whistleblower could bring a case under the following conditions:
- You discover that an insurance company is denying payment for legitimate claims, and the person submitting them purchased health insurance using federal tax credits. The ACA prohibits a number of actions by insurance companies, including limiting annual benefits, denying paying benefits due to a pre-existing condition, denying insurance coverage based on pre-existing conditions, or not paying claims for what are known as “basic health services.” What makes these offenses whistleblower cases is the receiving of federal money.
- You discover that an insurance company or related provider has breached provisions of the anti-kickback statute or is in violation of the ACA overpayment rules.
- If you are an insider, you might discover that your employer has manipulated the ACA’s Premium Stabilization Programs. These risk management programs, known as the “three Rs” (Reinsurance, Risk Corridors, and Risk Adjustment), are meant to protect those who buy insurance through the ACA’s exchanges by stabilizing the prices of insurance premiums. The first two of the three Rs are temporary. All three programs involve the transfer of federal money to insurance companies. In some cases, false information could be submitted to gain illegal access to these federal funds.
If you have evidence of any kind of health insurance exchange fraud involving federal money, the new whistleblower changes instituted by the ACA could help you bring a case. Because the ACA is relatively recent (it was passed and became law in 2010), we are only just beginning to see what impact it will have on False Claims Act whistleblower cases as they begin to appear in our courts.
Listening hard. Working harder.
If you have knowledge concerning fraud against the government, including health care exchange fraud involving the Affordable Care Act, an experienced whistleblower attorney like the ones at the Louthian Law Firm can assess your case and help you file the necessary disclosure statement. In some instances, the government will intervene (take part in your lawsuit).
One of the most important reasons to contact a qualified whistleblower attorney is that you are much more likely to meet with success if your claim is clear, concise and substantive. The Louthian Law Firm can help you structure your claim in such a way that the government will be more likely to intervene in your case, possibly increasing the chances that you will recover reward money. Even if the government doesn’t decide to intervene, it might still be advisable to pursue your case without government involvement, with our strong support through every step of the process.