False Claims Act Liability for Overtreatment.

CONTEXT

Overtreatment is costly, but is it fraud? In a growing number of False Claims Act cases, the Department of Justice has sought and received multimillion dollar settlements from providers accused of billing Medicare for unnecessary care. This article evaluates the use of the False Claims Act as a tool for reducing overuse.

METHODS

The author reviewed (1) recent cases where litigants sparred over the applicability of the False Claims Act to overtreatment, and (2) criticisms of the expanding use of the False Claims Act in health care.

FINDINGS

Some judges have dismissed suits on the grounds that expert testimony regarding the necessity of treatment is insufficient for concluding Medicare claims were false or fraudulent. Other judges have let cases proceed, especially in instances where clinicians appear to have overstated the severity of patients' illnesses to justify treatment. Cases that lead to changes in medical practice may result in substantial savings to the Medicare program.

CONCLUSIONS

Courts have struggled with how to apply the False Claims Act to overtreatment. False Claims Act cases that address unnecessary care are potentially less problematic than other types of cases that address technical violations with few implications for costs or quality.