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Posts Tagged ‘Fraud and Abuse’

Dermatology Practice Fraud and Abuse Risks Identified in Florida Case

Tuesday, June 27th, 2017

Dermatologist Fraud and Abuse Risks – Identified from Florida Case Targeting Demotologist

Dermatology Risk Areas Fraud and AbuseAn allegation from a competing dermatologist resulted in a Federal government investigation of a Florida dermatologist.  The dermatologist was accused of charging the Medicare program for unnecessary biopsies and radiation treatments that were not rendered, not properly supervised, or given by unqualified physician assistants.  It was alleged the doctor was not even in the country when some of the procedures at issue were performed.  The unnecessary charges were alleged to have totaled around $49 million over a 6-year period.

The dermatologist did not admit wrongdoing in the settlement.  Rather, he alleged the overbilling resulted from his unique practice that relied on radiation, instead of disfiguring surgery, to help patients.  The doctor claimed he had cured “over 45,000 non-melanoma skin cancers with radiation therapy” over a 30-year period.  The problem with that argument appears to be the fact that the dermatologist was not trained or qualified in providing radiation oncology treatments.

There are a number of interesting things about this case.  The case was brought by a competing physician as a whistleblower.  The physician who brought the case expressed concern about having to treat patients that the accused doctor had misdiagnosed with squamous cell carcinoma.

The case also alleged significant billing for services allegedly provided when the doctor was not even in the office.  The accused doctor alleged he was available by phone while the procedures at issue were being performed.  This raises interesting issues under the rules regarding “incident to” billing.  Those rules permit a physician to bill for physician extender services.  In order to qualify to bill a service as “incident to” a physician’s service, the billing physician must meet supervisions requirements.  The physician must be physically present within the office suite during the performance of the procedure in order to qualify to bill a service as “incident to” the physician’s services.

It appears there were a number of things going on in this case.

  • There appears to have been a pattern of diagnosing a higher level of severity than was supported by the patient’s condition.
  • There was a routine use of radiation therapy, even in cases that were not medically appropriate.  This placed patients at potential risk.
  • There appears to have been questions whether the accused doctor was authorized to perform radiation therapy.
  • There were issues regarding improper use of the “incident to” billing rules when the doctor was not present to actively supervise the service.
  • There was also some evidence the doctor had offered incentives for staff to misdiagnose and over utilize the radiation treatment.
  • There was an alleged kickback arrangement with another physician who operated a clinical laboratory.

Personal Care Agency Fraud – Business Structure Can Impact Compliance Risk

Tuesday, June 27th, 2017

Personal Care Agency Structure Can Increase Risk and Government Scrutiny

Personal Care Agency FraudThe OIG recently released a review of Medicaid Fraud Control Unit activities which identified personal care agencies as accounting for nearly one-third of fraud prosecutions.  Previous blogs identified a number of compliance risks that often ensnare agencies.  Risk can also be impacted by the structure and nature of the business that is conducted by the agency.  The business might be perfectly legal, but can still create additional risk.

An good example involves personal care agencies that focus on recruiting patients with extended families who already reside with the patient.  A personal care business plan that focuses on training extended family might be technically legal, but can certainly present risk that a reviewer will more closely scrutinize record-keeping, PCW training, and other requirements.  Closer scrutiny may result in overpayment requests and/or investigation.

The normal business plan for a personal care agency involves the hiring and training of personal care worker who are assigned to clients who retain the agency’s services.  Normally, a PCW and a client do not know each other and certainly are not sharing a residence with the client.  Some agencies might focus their business on recruitment of patients who live with extended family.  Simply by providing training to the existing family member, the agency is able to generate reimbursement.  The extended family member is able to earn a wage for the service that it performed.

Immediate family will normally not qualify to generate reimbursement as a personal care work.  More distant family might be able to generate reimbursement.  There may be nothing specific in the laws of the applicable state that prohibits this type of arrangement.  At the same time, there is nothing prohibiting a regulator from more closely scrutinizing regulatory requirements when presented with agencies that may be technically legal but could be viewed as being abusive at their core.

The main point here is that business structure and other factors might present additional levels of risk to an agency.  Business structure should be considered as a factor when conducting risk analysis.  Businesses that are operated in technical compliance could present higher degrees of risk than more traditional business structures.

Criminal Exposure for Failing to Repay Known Overpayment

Monday, April 3rd, 2017

Known Overpayments can Implicate Criminal Statutes

failing to repay overpaymentWe hear a lot about potential liability under the False Claims Act for the failure to repay overpayments within 60 days after discovery. Focus on the 60 day rule has taken some of the focus away from the potential for criminal charges for retaining known overpayments. Section 1128B(a)(3) of the Social Security Act (42 U.S.C. § 1320a-7b(a)(3)) makes it a crime to conceal or fail to disclose any occurrence that affects the initial or conued right to any benefit payment. A violations of the statutes requires a showing that the charged individual have knowledge of the event affecting the right to the applicable benefit. A violation of the statute is a felony and is punishable by a maximum of five years in prison and a fine of $250,000 for individuals or $500,000 for corporations.

The Office of Inspector General has applied this statute, even in cases where the overpayment occurs innocently but a party fails to repayment an overpayment after receiving knowledge. This type of situation is clearly subject to the False Claims Act where repayment is not made within 60 days. Criminal responsibility is also a potential; particularly when a decision is made not to repay after learning about the existence of an overpayment. Criminal exposure is present for the entity as well as the individuals who are responsible for failing to make repayment of a known overpayment. There is an element of ambiguity regarding application of the criminal component, but this has not stopped prosecutors from asserting the statute in the past.

The Federal Criminal False Claims Statute (18 U.S.C. § 287) can also apply to impose potential criminal liability.  That statute applies potential criminal liability on any person who “makes or presents” any claim to an agency of the U.S. Government “knowing such claim to be false, fictitious, or fraudulent.”   This statute can lead to potential 5 years imprisonment plus potential criminal penalties.   Conspiracies to violate the Federal Criminal Claims Statute impose double penealties on participants.  Failing to disclose and repay known overpayments could form the basis of a violation of this statutes as well.

Other criminal statutes could potentially apply to the failure to repay known overpayments.  Mention of these above statutes is not intended to be an exhaustive list of potential exposure.

What Is The Different Between Fraud, Abuse, and Criminal Conduct

Thursday, September 1st, 2016

Fraud, Abuse, Over-payment – When Does a Mistake Become Fraud?

Fraud Abuse OverpaymentIf you are involved in any way in the health care system, it should be obvious by now that the government has committed ever increasing resources to the prosecution of fraud and abuse cases. Simply put, from a governmental standpoint, prosecuting fraud and abuse is good business. Every dollar that the government puts into pursuing health care fraud and abuse brings a return of around 7 or 8 dollars. If you are in business what do you do if you know that you can invest $1 and obtain a consistent $7 return on that investment; you spend the $1 as many times as you can. That is exactly what the government is doing when it comes to health care fraud and abuse. It is worthy of note that we are not just talking about pursuing criminals when we talk about health care fraud and abuse.

Certainly there are a lot of criminals out there who are intentionally trying to steal from the system through fraudulent schemes. Fraud and abuse encompasses a much broader type of activity. There are numerous situations where unintentional activity (i.e. a billing or coding error) can result in being overpaid by the federal government under a governmental health care program. I don’t want to say that this happens to everyone in the health care system; but it certainly happens to a lot of people, usually as a result of some sort of neglect or misinterpretation of some very complex regulations. Take for example the supervision rules that are discussed in another article in this newsletter. They are extremely convoluted and it is hard to imagine who every doctor could have it clear in his or her mind which rules apply and exactly what is required in each specific instance. Nevertheless, a billing occurs and if the proper supervision is later found to not be present, an over-payment results. This is an example of what the government considers to be “abuse.” No criminals are involved here, but an over-payment and technical abuse of the system has occurred.

The manner in which this situation is dealt with becomes critically important in determining whether there is a simple correction of the situation or whether it is escalated to higher levels of culpability; whether the simple inadvertent abuse becomes fraud. Let’s skip forward to a time when the doctor discovers that a mistake has been made in the level of supervision that was provided in the past. What happens now it very important. First, lets imagine that the doctor comes forward and admits the error. There is some money owed back to the governmental health program. This part of it will never go away. But lets say that the doctor lets it slide for half of a year and does nothing. Under current law, the doctor’s potential exposure has just escalated into a completely different zone of risk and potential culpability. Federal law says that the Federal False Claims Act applies if an over-payment is not corrected within 60 days after discovery. There are a lot to technical rules about when an over-payment is deemed to have been discovered. I am not going to get into that right now.  the doctor is potentially exposed to three times the original over-payment. But that is not the extent of it. The doctor is also exposed to additional damages in the amount of $11,000 per claim; for every individual service claim that resulted from the initial mistake in complying with the supervision regulations. This case has now escalated from abuse into fraud. From here it is just a matter of establishing intent to make this a criminal case.

Medigap PHO Discount Program Receives OIG Approval

Tuesday, June 23rd, 2015

OIG Releases Yet Another Advisory Opinion 15-08

Medigap Arrangment Involving PHO Discounts

Medigap PHO Discount ProgramSomeone must be busy at the Office of Inspector General’s Office. Last week they released two new advisory opinions and a Special Fraud Alert. This week they released another Advisory Opinion, this time addressing sharing savings from a preferred hospital network between a Medigap insurer and its policy beneficiaries. The program at issue provided a premium credit of $100 toward the policyholder’s next renewal premium for participating in a discount program involving price reductions from a physician-hospital organization.

The second part of the program involved negotiated service rates with a physician-hospital organization (PHO). The PHO agreed to discounts of up to 100% of the Medicare Part A inpatient deductibles which would normally be paid by the Medigap plan. The PHO received an administrative fee from the Medigap plan for each discount that was provided by the PHO.

The OIG analysed the program under the civil monetary penalty (CMP) provisions and the Anti-Kickback Statute (AKS) and concluded that the arrangement would not constitute grounds for civil monetary penalties or administrative sanctions.

The OIG found that discounting of the inpatient deductible created a low risk of fraud or abuse because the Medicare Part A payments are fixed and the discount would not impact reimbursement amounts. Additionally, the OIG observed that patients would not generally haveknowledge of the discount and would not be encouraged to seek additional care. The program did not offerfinancial rewards to the physicians involved in the patient’s care and the program was open to all providers who agreed to the discount program through participation in the PHO.
The OIG also found that the premium credits that were provided to beneficiaries created minimal risk of program abuse.

The OIG also noted that the proposed arrangement has the potential of lowering costs for policyholder under the Medigap plan and that the savings would be reported to the state regulatory agency.

Wednesday, April 2nd, 2014

From HCCA Compliance Institute – False Claims Act Developments

I am in the morning session of HCCA Compliance Institute covering False Claims Act issues.  Some interesting items being covered.  I will summarize a few of the major points being made and will provide some additional analysis and observations on some of these points.  Forgive my typos or poor writing.  I am blogging live from within the session on my handheld device.

  • This discussion is in the context of the False Claims Act and determining whether there is an obligation to self disclose or take other remedial action.  The following points are made:
  • Ambiguities in the law will be identified that cast doubt on whether or not a violation exists.  A provider cannot bury its head in the sand.  If relying on a legal interpretation on whether and overpayment or self disclosure should take place, make certain to document the process you took to make a reasonable determination on how a law applies.  Reasonable efforts should be documented to indicate that a reasonable assessment was made and a reasonable determination was made concerning interpretation.
  • I always advise providers to completely document their investigation of issues regarding application of specific laws.  The process taken should be documented to memorialize that a reasonable decision was made concerning potential legal application.
  • Reasonable steps should be taken to reach an answer.  If guidance is sought from an FI or state agency, the contact and results should be documented in the investigation process.  Many ambiguous cases of legal interpretation come through my office.  I tend not to see the easy cases.  I get the cases where the answer is not entirely clear or well defined under legal authorities.  Response from legal review should be provided to you in writing as privileged communication.  If there are any false assumptions made in the legal analysis, make certain they are properly addressed and that the opinion is properly modified to be based on the correct assumptions.
  • You should never chose to simply ignore legal advice and opinion on interpretation of a legal issue.  Failing to follow a legal opinion or analysis can create very bad evidence in your files.  If there is disagreement or a false assumption in the legal opinion, it is fair to address the issue and ask for a correction.  But you should never put yourself in a position of putting your head in the sand when you have a legal opinion or analysis that you simply do not like.

More on false claims act coming.

Annual Health Care Fraud and Abuse Control Program Report

Tuesday, March 11th, 2014

Record Recovery for Health Care Fraud and Abuse

The U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) recently released its annual Health Care Fraud and Abuse Control Program (HCFAC) report. This report indicates that in the last three years for every dollar spent on health care related fraud and abuse investigations through HCFAC and other government programs, the government recovered $8.10. This is a record high for the 17-year old program.  HCFAC focuses on eliminating fraud, waste, and abuse in the health care industry.

A few notes on the report’s numbers:shutterstock_1766714

•      The federal government recovered a record-breaking $4.3 billion in fiscal year 2013 alone.
•      Over the last five years, the federal government recovered $19.2 billion—this is more than double the previous five-year period.
•      In fiscal year 2013, the DOJ and HHS strike force team filed 137 cases, charged 345 individuals with crimes, secured 234 guilty pleas, and achieved 46 convictions.
•      Defendants sentenced in fiscal year 2013 served an average of 52 months in prison.
•      Centers for Medicare and Medicaid Services (CMS) have banned 225,000 individuals and entities from billing Medicare between March 2011 and September 2013.

Attorney General Eric Holder states that, “With these extraordinary recoveries, and the record-high rate of return on investment we’ve achieved on our comprehensive health care fraud enforcement efforts, we’re sending a strong message to those who would take advantage of their fellow citizens, target vulnerable populations, and commit fraud on federal health care programs,” said Attorney General Eric Holder.

The return on investigation investment suggests that the federal government’s interest in investigating and prosecuting health care fraud and abuse is substantial. In short, health care compliance is more important than ever.

Annual Health Care Fraud and Abuse Control Program Report

Monday, March 10th, 2014

The U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) recently released its annual Health Care Fraud and Abuse Control Program (HCFAC) report.  This report indicates that in the last three years for every dollar spent on health care related fraud and abuse investigations through HCFAC and other government programs, the government recovered $8.10. This ishutterstock_1766714s a record high for the 17-year old HFAC program. The HFAC program focuses on eliminating fraud, waste, and abuse in the health care industry.

A few notes on the report’s numbers:

• The federal government recovered a record-breaking $4.3 billion in fiscal year 2013 alone.
• Over the last five years, the federal government recovered $19.2 billion—this is more than double the previous five-year period.
• In fiscal year 2013, the DOJ and HHS strike force team filed 137 cases, charged 345 individuals with crimes, secured 234 guilty pleas, and achieved 46 convictions.
• Defendants sentenced in fiscal year 2013 served an average of 52 months in prison.
• Centers for Medicare and Medicaid Services (CMS) have banned 225,000 individuals and entities from billing Medicare between March 2011 and September 2013.

Attorney General Eric Holder states that, “With these extraordinary recoveries, and the record-high rate of return on investment we’ve achieved on our comprehensive health care fraud enforcement efforts, we’re sending a strong message to those who would take advantage of their fellow citizens, target vulnerable populations, and commit fraud on federal health care programs,” said Attorney General Eric Holder.

The return on investigation investment suggests that the federal government’s interest in investigating and prosecuting health care fraud and abuse is substantial. In short, health care compliance is more important than ever.

False Claims Act Basics – Health Care False Claims

Thursday, February 6th, 2014

False Claims Act Basics

Overpayment Repayment 60 Day RuleThe False Claims Act (“FCA”) provides a very strong enforcement tool to the federal government.  The FCA also provides the opportunity for whistleblowers to bring “qui tam” cases and collect a portion of the recovery where false claims are proved against the federal government.

FCA recovery was originally intended to provide a remedy against unscrupulous civil war profiteers.  Penalties were enhanced when the FCA was dragged off the shelf in the 1980s in reaction to some of the overpricing of government contracts selling supplies to the federal government.

Recently, the FCA has become one of the government’s prime enforcement tools t o deter fraud in the federal health care programs.  Historically, the FCA has been available when a health care provider falsely bills for covered services.  Triple damages and an $11,000 per claim penalty provide a strong deterrent in an industry that may make hundreds of claims per day.

Recent legislation has expanded FCA liability to claims that the provider knows resulted in an overpayment if the provider does not make repayment within 60 days of obtaining knowledge of the wrongfully billed amount.  Some of the potential applications of this that makes a simple overpayment a false claim has generated much discussion among health care lawyers and compliance officers alike.  When an organization is deemed to have knowledge of the overpayment has been the subject of much speculation due to the ambiguities that exist in the new rule.

It may be helpful to frame this discussion by touching on the general requirements that must be met in order to prove any claim under the Federal False Claims Act.  The three general elements that must be proved include:

1.         The submission of a claim to the federal government.  In the health care context, the claim will normally be submitted to a government health program.

2.         The claim must be false.

3.         The claim must have been submitted knowingly.  Actual knowledge that the claim was false will always prove the knowledge requirement.  However, a FCA case can also be built around the submission of a claim with “reckless disregard” for its truth or falsity.

Recent health care legislation, in particular the Fraud Enforcement Recovery Act of 2009, greatly expanded the scope of the FCA.  The FCA is now applicable to a wide variety of situations that would not have previously been covered.  For example, the failure to return an identified overpayment now becomes a false claim.  The potential remedies that a provider may face for not promptly repaying known overpayments creates a strong incentive for health care providers to monitor and audit their claims and set up processes that will catch improper billing that could ripen into the FCA.

Reckless disregard or hiding your head in the sand like an ostrich is no longer a way to avoid massive potential FCA liability.

Compliance programs need to be amended appropriately to address the new potential legal and financial risk presented by these new penalties.

Anesthesia Service Profit Centers – OIG Advisory Opinion 13-14

Monday, November 25th, 2013

Anesthesia Billing Arrangements – New OIG Advisory Opinion 13-14

anesthesia billing advisory opinionThe Office of Inspector General has released a new advisory opinion addressing the implications of a contract for anesthesia services between an anesthesiology group and a psychiatry group.  OIG Advisory Opinion No. 13-15 was published on November 15, 2013.  The opinion illustrates the OIG’s difficulty with arrangements between existing anesthesiology groups who are forced to forego the right to bill for their professional fees in order to provide anesthesia services for patients of a provider who is not historically in the business of providing anesthesia services.  This type of arrangement seems to be arising more frequently as provider groups search for ways to capitalize on additional revenue streams from their existing patient base.

Opinion 13-15 involved a psychiatry group who proposed a  contract with an anesthesiology group to provide additional anesthesia coverage for patients of the psychiatry group who were undergoing electroconclusive therapy procedures.  Under the contract, the anesthesiology group reassigned its rights to bill and collect for its anesthesia services to the psychiatry group.  The anesthesia group agreed to accept a fixed per diem rate for providing anesthesia services for the psychiatry group’s patients.  The arrangement permitted the psychiatry group to profit from the difference between anesthesia billings and the per diem fee paid to the anesthesia group.

The OIG found that this arrangement created a risk of violating the Anti-Kickback Statute.  The OIG noted that the per diem amounts the psychiatry group would pay to the anesthesia group would not qualify for protection under the safe harbor for personal services and management contracts for a number of reasons, including the aggregate compensation to be paid over the term of the agreement would be neither set in advance nor consistent with fair market value.  Additionally, the safe harbor protects only payments made by a principal (here, the psychiatry group) to an agent (here, the anesthesia group).  The safe harbor does not protect the remuneration from the anesthesia group to the psychiatry group that is of issue in this case.

After determining that there was no safe harbor available to protect the arrangement, the OIG went on to analyze the risk that the arrangement would present under the Anti-Kickback Statute.  The OIG concluded that the arrangement appears to be designed to permit the psychiatry group to indirectly receive compensation, in the form of a portion of requestor’s anesthesia services revenues, in return for the psychiatry group’s referrals of patients to the anesthesia group.  The OIG concluded that the arrangement presents a significant risk that the opportunity to generate profit on anesthesia services would be in return for referrals.

Advisory Opinion 13-15 is just the latest in a long line of releases that casts a shadow on attempts of one provider group to profit from captive referrals for services that it does not ordinarily provide.  The OIG seems to permit the legitimate extension of services by groups like the psychiatry group at issue in 13-15.  The OIG had no difficulty with the psychiatry providing anesthesia services by a psychiatrist member of the psychiatry group who was also qualified to provide anesthesia services.  To contrast, the OIG is obviously suspicious of arrangements that permit the non-anesthesia group to profit from the services of the anesthesia group.  The consequences of a violation under the Anti-Kickback Statute can include both criminal and civil damages.  As a result, providers need to be extremely cautious about entering into the type of arrangement that appears contrived to permit a profit to be made from services that are normally billed by an anesthesia provider.

Please feel free to contact John Fisher, CHC, CCEP, in the Ruder Ware Health Care Industry Focus Group for more information.

John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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