False Claims Act and Pharmacy Practice: Pharmacists Beware!

It is alarming how much health care fraud within the pharmacy is being prosecuted by the Office of Inspector General (OIG) and the Department of Justice, which can lead to both criminal and/or civil penalties and OIG exclusion. As pharmacists, we are seen as the most trusted professionals in the nation and are held to a high level of integrity and professionalism at all times. However, when our profession is blemished by pharmacists or pharmacy companies who are found guilty, plead guilty, or settle allegations of health care fraud, this can create a level of distrust that can impact our profession as a whole.

Health care fraud is defined as intentionally deceiving, providing false statements, or misrepresentation to obtain an unauthorized benefit for yourself or another person. An example is purposely billing Medicare or Medicaid for products or services that were never provided or received. Fraudulent activity is knowingly, willfully, and intentionally committed or committed with reckless disregard. The OIG and DOJ currently only prosecute health care fraud that is done against government health care programs like Medicare, Medicaid, Tricare.

There are many instances where the pharmacy professional may be committing health care fraud without knowing because the company has created a workflow that would not clearly illustrate the fraudulent activity the staff may be performing on a daily basis.

In a recent instance involving a retail pharmacy chain, a state Medicaid program, which serves low-income and disabled patients, was billed fraudulently by multiple pharmacy when this chain dispensed drugs for non-approved diagnosis and then knowingly billed the program for those flawed prescriptions. A retail pharmacist and a pharmacy technician informed the government of the issue, which was performed by many pharmacy staff on a daily basis without knowing they were committing health care fraud. None of the pharmacy staff was held accountable because they were not knowingly committing fraud, nor did they receive profit or benefit from the scheme; the pharmacy chain, however, was held responsible and is required to pay $9.86 million to settle and avoid OIG exclusion.

In another instance in 2012, a retail chain agreed to pay $7.9 million to resolve a false prescription billing case that centered on illegal inducements to Medicare and Medicaid patients to transfer their prescriptions to their pharmacies. All pharmacy staff who promoted the transfer program took part in the illegal scheme, however since they were not knowingly committing fraud, nor did they receive profit or benefit from the scheme, they were not held responsible. In that instance, the retain chain was held solely responsible and paid $7.9 million to settle the allegations with the government.

Another retail pharmacy chain has also been faced with government penalties to the tune of $4.25 million. In December 2013, the chain charged Medicaid for the drug benefits of dual eligible patients. A dual eligible is defined when a patient has medical coverage provided by both Medicaid and a private health plan. When a dual eligible requires health care, the private insurer is to be the primary payer of care. In this claim, the chain made Medicaid the primary payer, leading to Medicaid paying for the care. When Medicaid would seek reimbursement for those erroneous billed claims, they were canceled.

As a part of the pharmacy community, we should uphold the law and when health care fraud is occurring, report it to the authorities. In addition, a reward may be given to the person who reports. It is always advisable to seek assistance before reporting health care fraud e.g. legal counsel. Be careful not to share information with others prior to reporting because your claim may be dismissed if someone reports before you.