How To Avoid Health Care Fraud

[JPVFLORES, BSN, MSN, NP]

Whether you are an M.D., D.O., N.P. or P.A., the chances of being audited have increased over the past decade. Recovery Audit Contractors and government agencies such as the FBI, OIG and HHS are on the lookout for unusual schemes or patterns that are out of the ordinary. An arrangement that you may think is perfectly legal may be one that can create civil and possibly criminal problems for you and your practice.

Top 10 to Watch Out For:

1. Investigate your employees:

The people you deal with, particularly those that seem innocuous enough such as marketers. Marketers or individuals that "bring in patients" to your practice are a prime area for investigation. These individuals also known as business development specialists are people who know other doctors, home health agencies, Long-Term Care Facilities and other entities that bring in referrals. Often these individuals may not have any specialized training, degrees or licenses- in other words not much to lose and everything to gain by bringing you referrals. Be extra cautious. These individuals may be promising patients, health care entities and providers things on your behalf that you are not aware of at all. Often the beginning of an investigation could be a well-meaning or not so well-meaning marketer or assistant at your office who brings up red flags for auditors and government agencies. I personally have seen investigations launched because of a high school graduate who held him/herself as a marketer and promised home healths that the doctor they worked for would sign their 485's or physician approved and signed plans of home health care in order to recertify the patient for more home health services if the home health agency switched over their patient to that particular doctor. Have a compliance officer or attorney check each employee out and have a strict compliance plan on Stark and False Claims Act Laws.

2. Billing:

Even in this day and age providers are still upcoding in the government's eyes. A 99315 billed too many times even if you have complicated patients can trigger audits, heavy fines and jail time. Be sure that your documentation substantiates each billing code on each patient. Although it is painstaking it is well worth looking over your billing practices and auditing the status quo in billing.

3. Billing with NP's:

The proliferation of Nurse Practitioners has been a blessing and simultaneously made it harder on physicians. Many physicians have gone with the flow, hired nurse practitioners and in states such as Texas, still must collaborate with those NP's so they may work and must supervise them. Be sure to know that in most instances unless you are physically in the building that coding should be at 85% under CMS of what an M.D. bills. An NP who had a clinic in Texas just got hit with 900,000 plus for back billing for a coder using a physician visit code when the NP went alone to the Nursing Home. Now both the M.D. and the N.P. are facing civil and possibly criminal charges.

4. Home health businesses and face to face criteria:

"Why take a chance?" is my philosophy. Do you really want a 35-year-old G-man with a badge and a gun scrutinizing your records with your attorney or without your attorney in a room wondering how you could as a physician sign plans of care for home health patients without physically seeing the patient? Many home health and hospice agencies will say, "Don't worry, our NP will see the patient for you. Just sign here" OR WORSE have your electronic signature ready to go. Ethically, have you seen the patient? If they are a skilled patient that requires a nurse to take care of them are they truly home bound or cruising the highways and byways without your knowledge? If a hospice patient are they improving and do they really have in all reasonable probability six months to live? How can you be sure of this fact if you have not seen the patient face to face each month in your office or in their home/LTAC? If you are a medical director of a home health, take this responsibility seriously. This is not the place to be cavalier. The government sees a lot of fraud and waste in this area and physicians are going to jail for signing the plan of care without ever seeing the patient.

5. Gifts, quid pro quo or any remuneration.

In this day and age doctors and now even NP's are receiving gifts or increased pay for more patients. Be sure that your contract with any entity is not based on how many patients you are bringing in. Gifts should be de minimus or under 50 dollars and rare at that (a luncheon with an in-service) might be appropriate but not on a a frequent basis. Because the agency is initiating these gifts with the staff, the M.D. or NP is often oblivious to this type of quid pro quo set up or reimbursement that is set up.

6. Billers versus coders?

Billing is a very highly scrutinized area. CMS, OIG, HHS, FBI and others are reviewing billing very carefully. Many mom and pop billers mean well but are paid by the percentage of what is build (often between 4 and 8 percent of the revenue). There is a great temptation to bill more and at a higher code. Ask yourself, who will get in trouble? Coders are professionals as well who are often specially trained to know the scintilla what should or should not be billed. Often a physician does the usual mistake: Gets a family member or spouse to do the billing without any oversight. Get outside counsel who has dealt with the government to "toss your books" and see that the billing is up to par and is compliant. Again, our philosophy after representing physicians, NP's and PA's for 17 years is, "Why take a chance?". Sleeping well at night in your own bed rather than in an orange jumpsuit on the bottom bunk is no laughing matter. At this moment there are at least a dozen practitioners who were literally too cheap to hire our services, were audited and proven to intentionally have billed and upcoded. Once they knew or should have known of the error of their ways they failed to create a compliance program and pay back the money to CMS.

7. Hating lawyers.

Before I become a lawyer I was wary of lawyers and avoiding them like the plague. Don't get me wrong, many lawyers are still people that I do not like by virtue of their predatory nature and taking advantage of the system, but these are few and far in between. The average lawyer zealously and honestly represents their client. Hiring a lawyer that "speaks your language" and understands medicine, the law and billing, plus how the government thinks is not a luxury today- it is a necessity. Audits are mandatory. Meeting with lawyers on ethical issues is also mandatory. America incarcerates more people per capita than any other country in the world. Prosecutors, judges and juries have very little sympathy for "rich" doctors and other health care providers. Although you may have grossed 7 million in billing to Medicare but only kept 15 percent of that, it is very hard for a jury to understand the difference between EBIDA and what is billed to the government. Likewise, the government goes by what is billed, not what you kept. Even if you had 10 partners you are still on the hook for all of the billing.

8. Federal law and conspiracy:

Federal rates of conviction exceed over 90 percent if taken to trial. Why? The government does not take every case to trial. The government takes the "slam dunk cases" to trial that they know they can win. The government wants to make an example out of allegedly unscrupulous providers as part of the "medical mafia" that is reportedly happening in American. Less than 2 percent of providers commit fraud knowingly but because of those providers we all pay for their misdeeds. Be aware that conspiracy involves two or more people agreeing to perform an illegal act. It does not even matter if the indivdiuals have never sat down in the same room or know each other. If a marketer is apprehended for example and states that Home Health X and Dr. Z had an arrangement whereby Dr. Z got paid 1500 a month for being medical director initially but after the first 10 admissions began receiving an extra 500 a month for each extra patient and the staff at Dr. Z.s took the check, deposited it in the operating account month after month and Dr. Z was so busy he did not notice it (yeah right) that is conspiracy.

9. Financial crimes, especially in federal court have severe criminal sentences.

Child molesters get less punishment than many health fraud offenders. An NP wanted me to consult with her. She wanted to add on a house call company to her new NP practice. I set up the policies, procedures, spent over 50 hours setting up the company and she was ready to go. She revealed she also had a a home health in an urban area. I cautioned her not to mix her patient referrals or to self-refer anything above a few a month (less than 3 percent (why take a chance?), plus disclose and have the patient sign that they have the choice to go with any home health or house call company in the city. She failed to tell me that in her home health she had an elderly physician working full-time and sitting in the office signing 485's or the plan of care orders for patients without seeing them. When she was questioned initially by the FBI she never contacted me. It was only after she was indicted, arrested in front of her front lawn and her children did she reach out. I asked her if she wanted to hire me and that she was facing very stiff time (10 years minimum). She thought this was a fear tactic on my part as a typical "greedy attorney" (look who's talking?) to obtain a huge retainer fee. She chose the wrong counsel, was caught attempting to sway witness testimony (witness tampering) and the federal judge sentenced her to SEVENTY-FIVE YEARS in prison. Most Murderers and child molesters do not get this type of time, but after all the Ponzi schemes, Bernie Madoff, plus health care being 15 percent of our GDP, the government has little tolerance for schemes to defraud the government. In this case, the offender made millions but did not want to spend less than 100,000 to save her life, license and her children being deprived of a mother (all in their teens and pre-teens). Guess who the marketer and business developer was that caused all the trouble and set up this dream scheme? The husband who had a business degree from a West African country.

10. So what is the moral of the story and how do we make sense of all of this?

30 years as an RN, 20 years as an NP, and 17 years as a lawyer, I have proudly defended health professionals. It is in the last 5 years that I have seen stiff sentences like that noted above finally come about. It is no game. If you are going to participate with CMS or any insurance company, you must know the do's and dont's and lawyer up. A few thousand a month for a compliance officer plus random audits can save you and your partners from jail. Having such a compliance program and a policy of self disclosure demonstrates to the government that the truth is that you are a forthright person who wants to do the right thing. Plus, it is hard to demonstrate that you had the intent to defraud the government or American taxpayer if you went through all the trouble or hiring outside counsel that has the duty to discover any irregularities and thus disclose any wrong doing. It is a new day and age. Lawyers and highly qualified billers and coders with an excellent reputation are needed. This article is not a scare tactic. I've been in those debriefing rooms. I have seen providers choose their golf buddy attorney to defend them that charged them much less and told them what they wanted to hear- not what they needed to hear. What is the end result: Steep fines, a loss of reputation, probable loss of licensure and credentialing and a high risk of jail.

[amoLucia]

Very interesting.

Explained some aspects of HC that I really never thought about. But then I've not been in situations that I might see questionable practices as described. At least to my knowledge.