New Sheriffs in Town: Commercial Payers' Increasing Role in Addressing Fraud and Abuse

There is a growing trend of commercial payers invoking “fraud and abuse” theories to deny health care providers’ claims or to recoup claims paid over many years. A few states even have laws that allow commercial payers to file “whistleblower” claims for alleged fraud in claims submissions with the incentive of recovering significant trebled damages, statutory penalties, and attorney’s fees. This article describes the various (and growing) methods of commercial payer fraud and abuse enforcement against health care providers, offers some practical recom­mendations for health care providers to mitigate the risk of potential exposure, and discusses potential affirmative actions that providers can launch against payers. …

While providers understandably and rightfully focus on the delivery of high-quality health care, the fact remains that every provider — irrespective of size — is a potential target of fraud and abuse claims. A culture of compliance not only will aid a provider’s defense of potential fraud accusations by payers, who may now have an additional economic incentive to make such claims, but also arm providers in the event that payers fail to pay providers what they deserve.