I Know What We're Doing is Wrong - DoctorsManagement I Know What We're Doing is Wrong - DoctorsManagement

I Know What We’re Doing is Wrong

“I Need My Paycheck”

by Sean Weiss, Partner & VP of Compliance

I know I have said this in numerous Blog Posts in the past, but I really love my job because every day promises to be something new and challenges me to learn things I didn’t know the day before, which to me is truly a great thing. One of my go-to Legal Eagles is Robert Liles of Liles/Parker who, without a doubt, is one of the most brilliant legal minds when it comes to health care and, honestly, he’s just a great guy.

So, anyways here’s the deal: I get lots of questions and comments from conference attendees and/or clients of DoctorsManagement and NAMAS about what to do when they know their provider(s) are blatantly committing, in their opinion, health care fraud or abuse, which we all know is a felony. Now, keep in mind that health care fraud and abuse are determined on a case-by-case basis and is not something that can be determined via a statistical analysis. Fraud and abuse are also subjective unless the culprit cops to committing fraud. So how is Fraud defined?

  • Knowingly submitting false statements or making misrepresentations of fact to obtain a federal health care payment for which no entitlement would otherwise exist;
  • Knowingly soliciting, paying, and/or accepting remuneration to induce or reward referrals for items or services reimbursed by Federal health care programs; or
  • Making prohibited referrals for certain designated health services

Fraud also includes:

  • Knowingly billing for services not furnished, supplies not provided, or both, including falsifying records to show delivery of such items or billing Medicare for appointments that the patient failed to keep; and
  • Knowingly billing for services at a level of complexity higher than the service actually provided or documented in the file

How is Abuse defined?

  • Billing for services that were not medically necessary;
  • Charging excessively for services or supplies; and
  • Misusing codes on a claim, such as up-coding or unbundling codes.
    • Medicare abuse can also expose providers to criminal and civil liability

Now, I need to and will be very careful with how I say this next part because I can hear the hamster wheels turning as some read this next section and wonder what your liability is when you know a felony such as health care fraud or abuse is being committed and you do nothing about it. The government doesn’t consider you going to the culprit and saying, “You are committing fraud and you need to stop and here is why.” Even if you do it 10-times. The question a prosecutor is going to ask you, is why did you continue to stay at your current job and/or why did you not notify someone (Investigative Agency) about your concerns. Two things here: First, this is not me saying run and blow the whistle and turn in your provider(s) or company; I need to be crystal clear about that. Second, I am not telling you to quit your job unless things are really that bad and you have something else lined up.

So, here you are knowing that your provider(s) are committing health care fraud or abuse and you continue to work where you are or fail to notify the authorities. Keep in mind there is no such thing as, my good ole pal Robert Liles likes to call it, the “Squeal Statute” but there is a little-known Federal Rule; Misprision of a Felony (18 U.S. Code § 4). “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” While I am not going through the entire “Rule,” I think I have provided you enough to get the gist of what it says. And the two words underlined say all you need to know; “Whoever” and “Conceals”. Basically, what a prosecutor is going to say is something to the effect of: You knew they were committing fraud but you continued to remain employed there receiving a paycheck based on remunerations the practice was not entitled to… thus you are the “Whoever” and you have “Concealed”.

I would also suggest that if you are a consultant reading this and you continue to work with a client that you have told time and again what they are doing is fraudulent and/or abusive, you may be putting yourself into a situation of liability. This is why anytime as a consultant you perform compliance or coding audits for a client it MUST be under Attorney-Client Privilege and there needs to be a Work-product Doctrine in place to protect confidential communications to the extent the law allows.

To further illustrate my point as to how serious this Federal Rule is, the 9th Circuit Court affirmed it: Elements of “Misprision of Felony” – “The 9th Circuit affirmed the long-established federal rule that “[t]o establish misprision of a felony,” under 18 U.S.C. § 4, “the government must prove beyond a reasonable doubt: ‘(1) that the principal . . . committed and completed the felony alleged; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took affirmative steps to conceal the crime of the principal.”

Keep in mind that violating this Federal Rule does not mean they won’t come after you as well for violation of the False Claims Act [31 U.S.C. §§ 3729-3733] – “The civil FCA protects the Government from being overcharged or sold shoddy goods or services. It is illegal to submit claims for payment to Medicare or Medicaid that you know or should know are false or fraudulent. Filing false claims may result in fines of up to three times the programs’ loss plus $11,000 per claim filed. Under the civil FCA, each instance of an item or a service billed to Medicare or Medicaid counts as a claim, so fines can add up quickly. The fact that a claim results from a kickback or is made in violation of the Stark law also may render it false or fraudulent, creating liability under the civil FCA as well as the AKS or Stark law.

Under the civil FCA, no specific intent to defraud is required. The civil FCA defines “knowing” to include not only actual knowledge but also instances in which the person acted in deliberate ignorance or reckless disregard of the truth or falsity of the information.

There also is a criminal FCA (18 U.S.C. § 287). Criminal penalties for submitting false claims include imprisonment and criminal fines. Physicians have gone to prison for submitting false health care claims. OIG also may impose administrative civil monetary penalties for false or fraudulent claims.”

Exclusion Statute [42 U.S.C. § 1320a-7]

“OIG is legally required to exclude from participation in all Federal health care programs individuals and entities convicted of the following types of criminal offenses: (1) Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare or Medicaid; (2) patient abuse or neglect; (3) felony convictions for other health-care-related fraud, theft, or other financial misconduct; and (4) felony convictions for unlawful manufacture, distribution, prescription, or dispensing of controlled substances. OIG has discretion to exclude individuals and entities on several other grounds, including misdemeanor convictions related to health care fraud other than Medicare or Medicaid fraud or misdemeanor convictions in connection with the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity; provision of unnecessary or substandard services; submission of false or fraudulent claims to a Federal health care program; engaging in unlawful kickback arrangements; and defaulting on health education loan or scholarship obligations.

If you are excluded by OIG from participation in the Federal health care programs, then Medicare, Medicaid, and other Federal health care programs, such as TRICARE and the Veterans Health Administration, will not pay for items or services that you furnish, order, or prescribe. Excluded physicians may not bill directly for treating Medicare and Medicaid patients, nor may their services be billed indirectly through an employer or a group practice. In addition, if you furnish services to a patient on a private-pay basis, no order or prescription that you give to that patient will be reimbursable by any Federal health care program.

See OIG’s Special Advisory Bulletin entitle “The Effect of Exclusion From Participation in Federal Health Care Programs”.

You are responsible for ensuring that you do not employ or contract with excluded individuals or entities, whether in a physician practice, a clinic, or in any capacity or setting in which Federal health care programs may reimburse for the items or services furnished by those employees or contractors. This responsibility requires screening all current and prospective employees and contractors against OIG’s List of Excluded Individuals and Entities. This online database can be accessed from OIG’s Exclusion Web site. If you employ or contract with an excluded individual or entity.”

**Source: A Roadmap for New Physicians Fraud & Abuse Laws – https://oig.hhs.gov/compliance/physician-education/01laws.asp

What to do next…

  1. If you need help with an audit appeal or regulatory compliance concern, contact us at (800) 635-4040 or via email at info@drsmgmt.com.
  2. Read more about our: Total Compliance Solution

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Experienced compliance professionals. Our compliance services are structured by a chief compliance officer and supported by a team that includes physicians, attorneys and a team of experienced auditors. The team has many decades of combined experience helping protect the interests of physicians and the organizations they serve.

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