Applied Behavior Analysis (ABA) therapy has become a widely covered treatment for children diagnosed with autism spectrum disorder, with Medicaid and private insurers spending billions annually on these services. While ABA therapy can provide legitimate benefits when properly administered, recent federal audits have uncovered widespread billing irregularities and compliance failures within the ABA therapy industry, raising questions about whether certain practices violate the False Claims Act.
Federal Audits Reveal Systemic Problems
The Department of Health and Human Services Office of Inspector General (OIG) has conducted multiple audits examining Medicaid payments for ABA services. These investigations identified improper payments for services that failed to meet federal and state requirements, including services billed without adequate documentation, claims submitted for services that didn’t comply with state Medicaid plan requirements, billing for services provided by unqualified personnel, and inadequate supervision of therapy technicians providing direct services.
OIG has recommended that states strengthen oversight, recover improper payments, and implement better controls.
Common False Claims Act Violations in ABA Therapy
Employees working within ABA therapy and other types of therapy or healthcare organizations may observe various practices that raise False Claims Act concerns.
Billing for Services Not Provided
Some providers bill Medicaid or private insurers for therapy sessions that never occurred or that were significantly shorter than claimed. Employees who maintain scheduling records or provide direct services may observe discrepancies between billed hours and actual service delivery.
Unqualified Personnel Providing Services
Medicaid and insurance coverage for therapy services typically requires that services be provided by qualified professionals meeting specific educational and certification requirements, or by paraprofessionals under appropriate supervision. Violations occur when providers bill for services provided by therapy technicians who lack required certifications, allow unlicensed individuals to develop treatment plans, or fail to provide required supervision of paraprofessional staff.
Inadequate Supervision
ABA therapy regulations generally require that Board Certified Behavior Analysts or other qualified professionals directly supervise paraprofessional therapy technicians at specified ratios and frequencies. Billing for properly supervised services while actually providing inadequate supervision constitutes fraud. Whistleblowers may observe behavior analysts supervising far more technicians than regulations allow, billing for supervision that doesn’t occur, or providing only cursory supervision that doesn’t meet clinical or regulatory standards.
Medically Unnecessary Services
Providers must establish medical necessity before delivering therapy services. Employees may witness providers continuing intensive therapy without clinical justification.
Fabricated Documentation
Some providers create false clinical documentation to support claims for services that didn’t occur, weren’t medically necessary, or didn’t meet regulatory requirements. This includes backdating treatment plans, fabricating session notes, or altering records. Administrative staff, billing personnel, and clinicians may all observe document fabrication.
Kickbacks and Illegal Referral Arrangements
The Anti-Kickback Statute prohibits offering or receiving anything of value in exchange for referrals of patients covered by federal healthcare programs. Providers who pay illegal kickbacks to physicians, schools, or other referral sources, or who receive kickbacks for referring patients for other services, violate federal law. Any claims resulting from illegal kickbacks are considered false claims.
The False Claims Act and Qui Tam Provisions
The False Claims Act imposes liability on individuals and companies that defraud government programs, including Medicaid and Medicare. The law’s qui tam provisions allow private citizens with knowledge of fraud to file lawsuits on behalf of the United States government. By law, whistleblowers, also called relators, may be awarded between 15 and 30 percent of what the government successfully recovers.
Filing a qui tam case requires specific procedures. Whistleblowers and their attorneys file complaints under seal, keeping them confidential while the Department of Justice investigates the allegations. This seal period typically lasts months or years as government attorneys examine evidence and decide whether to intervene and take over prosecution of the case.
Qui tam cases often involve extensive document production, expert testimony, and detailed analysis of billing records, clinical documentation, and regulatory compliance. Successfully prosecuting these cases requires attorneys with experience in both healthcare fraud and False Claims Act litigation.
What Keller Grover LLP Can Do for Whistleblowers
Our legal team at Keller Grover LLP has decades of experience representing whistleblowers in False Claims Act cases involving healthcare fraud. Our attorneys can evaluate your case and help you find the best path forward.
If you have information about ABA therapy or other types of healthcare fraud, contact Keller Grover LLP for a free, confidential consultation.