Written by: Joanne Byron, BS, LPN, CCA, CHA, CHCO, CHBS, CHCM, CIFHA, CMDP, COCAS, CORCM, OHCC, ICDCT-CM/PCS
The U.S. health care system relies heavily on third-party payers to pay the majority of medical bills on behalf of patients. Health care insurance fraud is a pressing problem, causing substantial and increasing costs in medical insurance programs. To combat fraud and abuse, all levels within a medical practice, hospital or health care organization must know how to protect the organization from engaging in abusive practices and violations of civil or criminal laws.
If you are a health care provider, remember that payers trust you to provide medically necessary, cost-effective, quality care. You exert significant influence over what services your patients get. You control the documentation describing services they receive, and your documentation serves as the basis for claims you submit. Generally, the health care system pays claims based solely on your representations in the claims documents.
When the federal government covers items or services rendered to Medicare and Medicaid beneficiaries, the federal fraud and abuse laws apply. Many similar state fraud and abuse laws apply to your provision of care under state-financed programs and to private-pay patients. The most important federal fraud and abuse laws that apply to healthcare are the:
- False Claims Act (FCA);
- Anti-Kickback Statute (AKS);
- Physician Self-Referral Law (Stark Law);
- United States Criminal Code
- Exclusion Authorities; and
- Civil Monetary Penalties Law (CMPL).
Implementing a successful compliance program not only assists in protecting your organization but individuals within the organization. It is crucial for providers, coders and billers to understand these laws not only because following them is the right thing to do but also because violating them could result in criminal penalties, civil fines, exclusion from the federal health care programs or loss of your medical license from your state medical board.
Government programs, such as the Centers for Medicare & Medicaid Services (CMS), find the investment in their audit and monitoring programs are effective. CMS announced in the fall of 2021 that their aggressive corrective actions led to an estimated $20.72 billion reduction of Medicare Fee-for-Service (FFS) improper payments over seven years.
When you submit a claim for services provided to a Medicare beneficiary, you are filing a bill with the federal government and certifying you earned the payment requested and complied with the billing requirements. If you knew or should have known the submitted claim was false, then the attempt to collect payment is illegal.
When an organization fails to provide training and education to deter and detect fraud and/or abuse, it is likely to be detected by an outside investigative source via action such as:
- Focused audit by the payer due to detection of suspect billing patterns when compared to your peers;
- Routine audits conducted by the payer, such as Medicare’s Comprehensive Error Rate Testing (CERT); and
- Internal whistleblower or qui tam action.
Internal auditing and monitoring programs are essential to keeping medical records and billing accurate. However, a routine internal billing and documentation review could turn into a more focused internal investigation. During that investigation, is it possible that an aberrant pattern of inappropriate billing is revealed? Do you know how to proceed if this happens?
First, remember that anyone can commit health care fraud. Fraud schemes range from solo ventures to widespread activities by an institution or group. Your organization should have a designated Compliance Officer. Audit professionals should have the authority to report potential fraud and abuse situations directly to the Compliance Officer for further investigation and resolution.
Problem areas brought to the attention of the Compliance Officer should also be included in corrective action training programs to avoid the continuation of the situation. One of the most important aspects of a compliance program is training and education at all levels of the organization.
Now, let’s talk more about qui tam action. There are five potential areas in which qui tam cases arise related to Medicare or Medicaid claims and the False Claims Act (“FCA”). Qui tam claims involving Medicaid/Medicare healthcare vary, depending on the level of care needed and provided. Categories often involve allegations of total neglect or no services, worthless services, inadequate and inferior services and products, and aggressive patient treatment. Other areas of fraud involve misrepresentation of credentials, upcoding of services, unbundling of services, and misrepresentation of patient data or populations.
Words of Advice
Maintain accurate and complete medical records and documentation of the services you provide.
- Ensure your documentation supports the claims you submit for payment. Good documentation practices help to ensure your patients get appropriate care and allow other providers to rely on your records for patients’ medical histories.
Anytime a health care business offers you something for free or below fair market value, ask yourself, “Why?”
- Remember, when a vendor or consultant provides coding and billing advice, the provider filing the claim is responsible for the accuracy of that claim. Be suspicious when you are told that a huge enhancement of revenue will be realized if you bill like this . . .
Get expert advice from a qualified source before investing or getting into a joint venture.
- Some physicians who invest in health care business ventures with outside parties, such as imaging centers, laboratories, equipment vendors, or physical therapy clinics, may refer more patients for the services provided by those parties than physicians who do not invest. These business relationships may improperly influence or distort physician decision-making and result in the improper steering of patients to a therapy or service where a physician has a financial interest. Arrangements could be viewed as illegal.
Avoid illegal incentives to join a hospital’s community.
- A hospital may pay you a fair market-value salary as an employee or pay you fair market value for specific services you render to the hospital as an independent contractor. However, the hospital may not offer you money, provide you free or below-market rent for your medical office, or engage in similar activities designed to influence your referral decisions.
- Admit your patients to the hospital best suited to care for their medical conditions or to the hospital your patients select based on their preference or insurance coverage.
Don’t sell free product samples.
- Many drug/biologic companies provide free product samples to physicians. It is legal to give these samples to your patients free of charge, but it is illegal to sell the samples.
- The federal government has prosecuted physicians for billing Medicare for free samples.
- If you choose to accept free samples, you need reliable systems in place to safely store the samples and ensure samples remain separate from your commercial stock.
Relationships with the pharmaceutical and medical device companies
- As a practicing physician, you may have opportunities to work as a consultant or promotional speaker for the drug or device industry. For every financial relationship offered to you, evaluate the link between the services you can provide and the compensation you will get. Test the appropriateness of any proposed relationship by asking yourself the following questions and when in doubt, get legal advice: o Does the company really need your specific expertise or input? o Does the company’s monetary compensation to you represent a fair, appropriate, and commercially reasonable exchange for your services? o Is it possible the company is paying for your loyalty so you prescribe its drugs or use its devices?
o Does the company really need your specific expertise or input?
o Does the company’s monetary compensation to you represent a fair, appropriate, and commercially reasonable exchange for your services?
o Is it possible the company is paying for your loyalty so you prescribe its drugs or use its devices?
Educate C-Suite and Compliance Officials in Your Company
An executive, top-down approach is required for a successful compliance program. The following seven components provide a solid basis for a compliance program:
1. Conduct internal monitoring and auditing
2. Implement compliance and practice standards
3. Designate a compliance officer or contact
4. Conduct appropriate training and education
5. Respond appropriately to detected offenses and develop corrective action
6. Develop open lines of communication with employees
7. Enforce disciplinary standards through well-publicized guidelines
Establishing and following a compliance program helps health care providers avoid fraudulent activities and submit accurate claims. However, implementing mechanisms to develop a culture of compliance requires educating high-level influencers within your organization.
Suggest C-Suite executives take online training in healthcare Corporate Compliance.
- AIHC offers an online Corporate Compliance course with the option to certify (with a proctor online).
Require your Compliance Officer, Chief Executive Officer and Chief Financial Officer to become certified not only in Compliance, but in Auditing for Compliance and Conducting Internal Investigations.
Joanne Byron is the Board Chair and Chief Executive Officer of the American Institute of Healthcare Compliance (AIHC) with more than 35 years of health care coding, documentation, billing and compliance experience as a consultant, health care executive and corporate trainer. Learn more about AIHC, a 501(c)(3) non-profit training organization, today.
