By Mitchell J. Birzon, Esq.,
Birzon, Strang and
Associates
Not a day goes by when the Office of the Inspector General
(OIG) of the US Department of Health and Human Services doesn’t issue a press
release announcing their successful prosecutions of fraud and abuse
investigations regarding Medicare and Medicaid.
Aside from the more commonplace matters involving medical practitioners having
billed for services that were never performed, there are a spate of investigations involving
upcoding and billing separately for services that should have been billed as a
single service (connotatively known as “unbundling”). Much of this activity is spurred by the fact that whistleblowers have
become increasingly efficient “agents” of the government pursuant to The Federal False Claim
Act, 31 USC Sec 3729-3733.
The enactment of The Affordable Care Act (ACA) brought with
it additional funding, significant technology and other resources to more aggressively identify and prosecute healthcare
fraud; both civilly and criminally. For instance, algorithms can readily identify practitioners that seemingly
oversubscribe medication or diagnostic service orders based upon geographical
and other statistical databases maintained by the Centers for Medicare and Medicaid
Services (CMS). Historically government investigations and
prosecutions of healthcare fraud involved only matters where the government
was the actual payor for the services at issue. However, it was anticipated that “test
cases” would be commenced by the Department of Justice against beneficiaries of
private insurer payments under the argument that coverage provided through the
exchanges created pursuant to the ACA included providers subject to the ACA and
its enacted rules and regulations.
At the federal level most fraud investigations are led by the
OIG, the FBI, the DOJ and state Medicaid Fraud Control Units (of which 29 states,
including New York, have created) which often join in the investigatory and
prosecutorial process. Not surprisingly, a significant percentage of cases that
are successfully prosecuted are borne from complaints filed by whistleblowers. These insiders often have the most intimate knowledge of the fraud and how it was
perpetrated upon the government. The Federal False Claims Act, and most state
whistleblower statutes, allow for the whistleblower(s) to receive between 15-25
percent of the government’s recovery. (see 31 USC 3730 (5)d). As an example, The Health Care Company, HCA paid a total of $151 million to whistleblowers as a result of HCA’s admission
that it engaged in extensive physician kickbacks and the submission of
fraudulent reports.
The initiation of an audit or investigation can be brought
to a practitioner’s attention in a variety of ways. For example, a notice from CMS or
a CMS contractor may inform a practitioner that they are already being investigated
and that their claims are being subjected to a review by CMS or a designated contractor before any payments are made. This
designation is known as “pre-payment review” and may result in innocent practices having their Medicare payments delayed for 3-6 months.
Very often the small or mid-size healthcare practice that
finds itself caught in the ever-expanding web of the regulatory jungle was unaware of the requirement to enact a compliance
program. In reality, that requirement is
not new or a recent mandate. The requirement for a comprehensive compliance
program transitioned from voluntary to mandatory in the Patient Protection and
Affordable Care Act (PPACA) in 2010.
To
be compliant with this requirement, I advise my clients to make certain that their
program conforms to the specific recommendations issued by OIG. When a
practice takes the time and makes the financial commitment to adopt and fully
implement a quality compliance program, it has the effect of identifying or
correcting inadvertent fraud and further sends a strong message to the
government that the client has made all efforts to "do the right thing”; something that
the government may take into account when deciding whether to bring criminal
charges in addition to civil claims against the healthcare provider.
Healthcare fraud and abuse is an area of the law which is evolving steadily and it is extremely important that every practice, large or small, is on solid footing regarding compliance. The best way to ensure compliance is to consult an attorney who concentrates on Healthcare Fraud and Abuse. There is never a good reason for a medical professional who is the subject
of a Medicare,
Medicaid, or private payor fraud investigation - no matter how routine it may appear to be - to proceed without counsel. There is simply far too much at stake, and the
extent of the risk is never clear when an investigation first rears its head.
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