Keep cool

Re­view billing pro­ce­dures, re­spond to worker con­cerns to avoid fraud scru­tiny

Modern Healthcare - - Opinions Commentary -

In May 2009, At­tor­ney Gen­eral Eric Holder and HHS Sec­re­tary Kath­leen Se­be­lius formed the Health Care Fraud Pre­ven­tion and En­force­ment Ac­tion Team to fight Medi­care fraud, which, they said, has be­come a top pri­or­ity for both the Jus­tice Depart­ment and HHS.

Ad­di­tion­ally, the FBI an­nounced in De­cem­ber 2009 that the joint Jus­tice Depart­ment-HHS Medi­care Fraud Strike Force, a mul­tia­gency team of fed­eral, state and lo­cal in­ves­ti­ga­tors as­sem­bled to com­bat fraud through data anal­y­sis tech­niques, would ex­pand into sev­eral metropoli­tan ar­eas across the coun­try.

As a for­mer health­care fraud pros­e­cu­tor, I un­der­stand the chill providers are feel­ing. Re­im­burse­ment has shrunk sig­nif­i­cantly in the past few years, mal­prac­tice premi­ums are in­creas­ing, and pres­sure from fed­eral reg­u­la­tors and law en­force­ment is erod­ing al­ready frayed re­la­tion­ships be­tween providers and pa­tients. In this un­cer­tain cli­mate, providers need to know ex­actly what types of be­hav­ior will trig­ger an in­ves­ti­ga­tion, and how to pro­tect them­selves from un­war­ranted sus­pi­cion.

The health­care in­dus­try, es­pe­cially durable med­i­cal equip­ment com­pa­nies and home­health com­pa­nies, will be un­der the mi­cro­scope. To spot of­fend­ers, the strike force usu­ally be­gins by us­ing Medi­care data anal­y­sis tech­niques that look for “out­lier” be­hav­ior. Out­lier be­hav­ior is char­ac­ter­ized by a pat­tern of billing pro­ce­dures that are grossly in­con­sis­tent with in­dus­try com­peti­tors.

The govern­ment has ac­cess to billing records, and any com­pany that is billing sig­nif­i­cantly more than com­peti­tors for a given item or ser­vice will prob­a­bly face scru­tiny. The Strike Force, how­ever, is not in­tended in any way to sup­press a health­care provider’s abil­ity to per­form needed ser­vices. It re­mains ex­traor­di­nar­ily dif­fi­cult to base a health­care fraud pros­e­cu­tion on al­le­ga­tions that a provider pro­vided med­i­cally un­nec­es­sary ser­vices. And it should be. For ex­am­ple, providers that spe­cial­ize in heart catheter­i­za­tion pro­ce­dures and per­form 10 times more of these pro­ce­dures than their clos­est com­peti­tors should not be at risk of a fed­eral pros­e­cu­tion based on the num­bers alone.

A crim­i­nal case based on a lack of med­i­cal ne­ces­sity re­quires a pros­e­cu­tor to prove not only that the pro­ce­dure was un­nec­es­sary, but also that the provider knew it. Such cases are ex­tremely rare and will al­most never in­clude a provider with well-doc­u­mented med­i­cal records and good backup.

Even out­lier be­hav­ior in tar­geted in­dus­tries will prob­a­bly not be enough to trig­ger a crim­i­nal pros­e­cu­tion. Out­lier be­hav­ior grabs the Strike Force’s at­ten­tion, but prose­cu­tions re­sult only when there’s ob­vi­ous fraud­u­lent ac­tiv­ity. The vast ma­jor­ity of crim­i­nal cases will in­volve out­right kick­backs, bribes to pa­tients en­cour­ag­ing them to visit cer­tain clin­ics, billing for ser­vices not ren­dered and other egre­gious be­hav­ior.

Past Strike Force prose­cu­tions and re­cent cases re­flect this. For ex­am­ple, a re­cent Mi­ami case in­volved a durable med­i­cal equip­ment com­pany that billed Medi­care for items based on pre­scrip­tions that did not ex­ist. An­other one al­legedly sub­mit­ted more than $1 mil­lion in claims for durable med­i­cal equip­ment us­ing forged pre­scrip­tions, forged cer­tifi­cates of med­i­cal ne­ces­sity and the like.

Many fraud cases start with a dis­grun­tled em­ployee who un­suc­cess­fully at­tempted to per­suade the com­pany to stop im­proper prac­tices. In some cases, em­ploy­ees go di­rectly to the govern­ment af­ter be­ing fired, while oth­ers work as in­for­mants from in­side the com­pany. Some for­mer em­ploy­ees even re­turn to the com­pany at the govern­ment’s request so they can gather in­for­ma­tion. Providers sim­ply can­not af­ford to ig­nore em­ployee com­plaints or fail to re­view poli­cies and pro­ce­dures for han­dling em­ployee com­plaints.

Re­gard­less of the type of in­quiry, it is crit­i­cal for a provider to im­me­di­ately and care­fully un­der­stand what hap­pened, and to try and get an­swers quickly. The provider’s most fun­da­men­tal task is to con­vince the govern­ment that the facts at most give rise to civil li­a­bil­ity—not crim­i­nal pros­e­cu­tion— but this re­quires dex­ter­ity and full dis­clo­sure.

As a for­mer task force pros­e­cu­tor, I re­call a case in which a provider al­legedly billed an ex­tra­or­di­nary amount of money for a cer­tain type of visit. As I be­gan to sub­poena and in­ter­view wit­nesses, the at­tor­ney for the provider be­gan his own in­ves­ti­ga­tion. The de­fense at­tor­ney was able to de­velop, and com­mu­ni­cate to me, a rea­son­able ex­pla­na­tion for why the provider’s be­hav­ior was not crim­i­nal. The re­sult was a non­crim­i­nal so­lu­tion that sat­is­fied ev­ery­one in­volved. The provider im­ple­mented more strin­gent con­trol and record-keep­ing mea­sures, the govern­ment re­couped its money, and the health­care sys­tem did not have to lose a com­pe­tent (but poor record-keep­ing) provider.

As the govern­ment turns up the heat on Medi­care fraud, providers must work to en­sure that all poli­cies and pro­ce­dures are above re­proach. Not only should providers eval­u­ate billing poli­cies, but also they should pay close at­ten­tion to em­ployee feed­back and make sure that cred­i­ble in­ter­nal con­cerns are re­solved in an ap­pro­pri­ate way. In the event that a provider comes un­der scru­tiny, it is cru­cial that the provider take the in­quiry very se­ri­ously and ad­dress it im­me­di­ately to avoid ag­gra­vat­ing a bad sit­u­a­tion. In many cases, non­crim­i­nal res­o­lu­tions are en­tirely within the realm of pos­si­bil­ity—but re­quire swift ac­tion. When it comes to Medi­care fraud en­force­ment, fore­warned is fore­armed.

The most fun­da­men­tal task it to con­vince the govern­ment the case is civil.

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