The New UB-04 Form Enhances Potential FCA Liability

Beginning in March, 2007, CMS began a program to replace its UB-92 form. The UB-92 was the form employed, both in paper and electronic formats, for billing the Medicare system by institutional providers such as hospitals, home health agencies, nursing homes, etc. In terms of DOJ/relator False Claims Act (“FCA”) prosecutions based on UB-92 claims, there was a major problem. There was no restrictive certification language contained on the UB-92 form which to any extent corresponded to the stringent certification included in hospital cost reports. For example, there was no Medicare certification attesting that the UB-92 was prepared “in accordance with applicable instructions,” including the Anti-kickback Act and Stark Law. In fact, the Medicare certification (paragraph 7 ), on the reverse side of the form, dealt exclusively with the release of patient information and facilitating payment from other sources. Consequently, FCA defendants could argue with some justification that even if the UB-92 claim had been prepared in contravention of these two laws, merely submitting it would not violate the express certification contained on the form itself. Moreover, unless the information on the form were alleged to be false or inaccurate in any way, the UB-92 arguably was not a violation of the FCA because it was not a false claim.

This oversight by CMS has apparently been addressed in the new UB-04 successor to the UB-92 form. On the reverse side of the form, the following new language appears:

Submission of claim constitutes certification that the billing
information as shown on the face hereof is true, accurate
and complete. That the submitter did not knowingly or
recklessly misrepresent or conceal material facts.

While the language is not as stringent as it could have been, it nonetheless raises some important issues for providers who submit the form. For one thing, its use of “knowingly or recklessly” is clearly language borrowed from the FCA. The certification also includes the requirement for “complete” information. Also, what are the “material facts” that the provider is certifying it did not “disregard, or misrepresent or conceal” when it submitted the form?

Thus far, I am aware of no cases involving the new UB-04 certification language. Nonetheless, those who represent providers are well advised I should think to bring this new language and its potential adverse FCA consequences to the attention of their clients.

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