Q&A About Health Care

Q: Why am I reading so much recently about fraud investigations, arrests and prosecutions in the health care field?
A: Although federal and state agencies have been actively involved in prosecuting health care fraud and abuse for well over a decade, the ferocity of those efforts has intensified over the last two years. The government is under tremendous pressure to find ways to reduce costs; therefore, the recoupment of funds, labeled the product of fraud, is now a top priority. To put this accelerated effort in perspective: In 2010, federal prosecutors convicted 726 defendants for health care fraud-related crimes, and related fraud prevention and enforcement efforts recovered more than $4 billion that same year. In February of this year alone, 111 people — including doctors, nurses and health care executives — were arrested in one nationwide Medicare Fraud Strike Force case spanning California to New York. The federal health care reform legislation of 2010 also made it easier for prosecutors to allege and prove fraud cases and at the same time, significantly increased criminal penalties that can be imposed. Similar initiatives are underway on the state level as well.
All health care providers and executives must keep apprised of these initiatives and maintain effective compliance programs to avoid even honest mistakes, as even these may catch the unwanted attention of government investigators. If you know or suspect you are the subject of this sort of investigation, qualified counsel with criminal and health law expertise is critical.

Q: What are my rights and obligations as a health care provider when insurance carriers are auditing my records and billings?
A: Medicare, Medicaid and private insurance carriers are all actively engaged in audits of providers’ billings, and the results of these audits can often result in the demand for sizeable paybacks or even efforts to remove doctors from participation. Ensuring that the right person from your practice is responsible for responding to record and document audit requests is a critical first step. All too often, patient information that supports claims for payment is not initially provided to auditors, as it should be.
We firmly believe there is no such thing as a “random” provider audit. More often than not, a change in your practice profile — a procedure, diagnosis or treatment methodology — catches the attention of a carrier, resulting in an audit. Take the time to analyze the patient charts under review. This will help you identify the “audit triggers” so you can get ahead of the audit and marshal the evidence and data that supports your billings. If necessary, this information will also help you properly modify your future documentation, coding or billing procedures proactively, assuming a problem exists. Having qualified health law counsel coordinate an initial retrospective review is a good idea and may help to preserve findings, good or bad, under attorney-client privilege.
Finally, know your rights. Providers have the right not to have their practice interrupted by unannounced office visits, unreasonable record demands or overly aggressive conduct by auditors. Striking the right balance between reasonable cooperation and acquiescing to undue pressure is sometimes difficult to accomplish, especially when the auditors operate under the auspices of government entities such as Medicare or Medicaid. Qualified counsel can help you protect your rights while advising the appropriate level of cooperation.