Posted by: Robert Markette
September 27, 2006

With the HHABN turmoil quiet for now, there is not much for me to comment on, thus my posts have been a little less frequent. However, I was reading a case involving the false claims act today and thought I would mention it as a reminder and because it makes an interesting point.

The case is U.S. v. Bondar, it is a false claims act prosecution out of Wisconsin. The defendants in the case are three home health workers who submitted time sheets claiming to have provided services on dates that either the worker or the family member was out of town. This is the good old false time card routine.

All three workers were prosecuted criminally and pled guilty. Not surprisingly, the Government then turned around and sued them under the false claims act for the $5,000 per claim and treble damages it was entitled to under the Act.

Because liability was already determined (by the guilty plea), the only question was the amount of damages the defendants would have to pay. This amount, in turn, hinged upon the number of false claims each defendant submitted. The defendants argued that they only made a false claim when their employer submitted a claim to Medicaid for reimbursement. This would result in only one false claim per week no matter how many fraudulent time sheets were submitted that week.

The government, in response, argued that the false claims were the fraudulent time sheets, not the invoices submitted by the home care agency. The court agreed with the government and ruled that each time a home care employee submits a false time sheet, they are making a false claim. This resulted in one employee being liable for 27 false claims, another for 29 false claims, and another for 18 false claims. In other words, each false time sheet cost the employee $5,000.00. I am certain that is far more than the employee received in payment for the false time sheet. This amount was on top of the employees criminal convictions.

As a final note, the court ruled that the amount sought by the government ($370,00 total) was not unconstitutionally excessive, because, essentially, the statute entitled the government to this amount as well as treble damages of $324,000. This means that the governments actual damages were less than one-third of the forfeiture amount sought in this case.

If you are a Medicare or Medicaid provider, this case should help you educate your employees. The next time you do any education on fraud and abuse, you should inform your employees that submitting a false time card can result in civil forfeiture of $5,000 per false timesheet, regardless of the number of falsified hours. Makes the whole idea of submitting a fraudulent time sheet seem pointless. (You get maybe eight hours of pay, but if caught can end up owing a respectable fraction of your pay for the year.)

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