Stupid is as Stupid Does
“When Greed Leads to Fraud”
by Sean Weiss, Partner & VP of Compliance
Ahh, the old “I didn’t know what I was doing” is not and has not been a justifiable defense in a very long time, if it truly ever was. Creating a scheme, no matter how elaborate it is, and thinking you are going to absolutely get away with it is not a very intelligent way to go about earning a living as a provider in this industry! The government from time to time employs or consults with former convicted criminals turned consultant, even though they don’t like to publicly admit it. Ask yourself, would you send a mouse into a snake pit or would you rather send in your own snake? These consultants help investigators uncover schemes and, by thinking through how they would do things if they were running the scam, figure out what the important items to look at would be and how they would cover their steps to throw off those snooping around. But then there are those providers who are so brazen they just do things without worrying about the consequences.
For example, let’s take the latest provider to be convicted of health care fraud for billing Medicare and private insurers for medical services not rendered and submitting bills under other doctors’ names to achieve higher reimbursements. On Friday, July 19, 2019, “Hal Abrahamson, a podiatrist with offices in Plainview, Long Island and Rego Park, Queens, was sentenced by United States District Judge Denis R. Hurley to one year and a day in prison for his role in a health care fraud scheme. The Court also ordered Abrahamson to pay restitution of $869,651, a $50,000 fine and forfeit $177,000. On June 26, 2018, Abrahamson pleaded guilty to health care fraud in connection with the operation of his podiatry practice. According to court documents, and as established at the plea proceeding, Abrahamson’s health care fraud scheme was ongoing from January 2013 until January 2017. Abrahamson used several fraudulent billing techniques over the years, including: (i) billing for skin grafts and wound packing services never performed, (ii) billing for work purportedly done by another podiatrist whose reimbursement rate was higher, but which was in fact done by Abrahamson, or not at all, and (iii) billing for more expensive procedures than those actually performed. Regarding the fraudulent billing for skin grafts, Abrahamson billed for this procedure 1,092 times over a four-year period in which a podiatrist with a comparable practice in Plainview billed only once and another podiatrist in the defendant’s office billed only five times. Regarding the fraudulent billing for wound packing, Abrahamson billed for this procedure 757 times over a four-year period, and would routinely add this to his false billing under another podiatrist’s name.”
While many of you will read the above and say of course that was done with intent, what you may be overlooking within your group practice could potentially be viewed as bilking the government or private insurance companies. Take for example providers within your group who are routinely behind on completing their patient encounter notes. However, at the end of the day, all of their encounter forms (Superbills) are completed and turned in for billing, which typically takes place the next business day. If you do not have coders or auditors in place reviewing the documentation to ensure it matches up to what is being billed and you submit claims that do not have any documentation to support it, you have potentially submitted a false claim and are potentially in violation of the False Claims Act (FCA). I know groups that have providers who are consistently 3-weeks or more behind on completing patient progress notes for in-office services. That is a huge problem and here is why. Let’s say your provider who is always behind sees an average of 25 patients per day; that is 125 patient encounters per week. Over a 3-week period that is 375 patient encounters. I, nor any other reasonable person, is going to believe your provider is going to be able to tell us 3-weeks or more down the road precisely what they did at 0830 on a Monday where they were triple-booked and what happened during that encounter.
I know those of you reading this are well versed in compliance and health care rules surrounding billing and coding and you recognize there is no way a provider will be able to recount how many HPI or ROS elements they reviewed and which truly were positive versus negative. Providers will not be able to provide, with any accuracy, the details regarding the physical examination or a complete and accurate account of the Plan of Care (POC). The ones that I love most are those providers who try to tell me that the encounter was dominated by more than 50% of counseling and/or coordination of care but fail to provide any substantive detail as to what was actually discussed.
I once did an audit of a provider who was always behind on his notes. So, in an attempt to keep up with his daily charting to keep the administration off his back, within every note he would add the statement “40 minutes total duration of which greater than 50% was spent in counseling and/or coordination of care” and put in some canned statement that was identical for every single patient on what was discussed. I pulled only one day of notes and he saw 30 patients that day. That means at 40 minutes X 30 patient encounter he spent 1200 minutes total time with his patients that day. The problem is that they only work 8-hour work days, which equates to 480 minutes. When I asked the provider if he worked 8-hours straight during a given work day, he responded in the negative and explained that he takes an hour and fifteen minutes for lunch and he has consulting physicians calling to speak with him, nurses at hospitals or hospitalists calling him regarding his patients that are inpatient, etc., throughout the day. His guesstimate was these things accounted for another hour of his day so that means he really only had 6 hours in a work day to see patients. This means for this provider, there is only 360 minutes in a work day to see patients. However, his documentation is claiming that he was spending 1200 minutes or 20 hours per day seeing patients. This is not a mistake – it is plain stupid! And when we discussed it, you could see the lightbulb turn on and his response was, “Oh expletive I wasn’t thinking”. My response to him was “sure you were… you intentionally documented the way you did to ensure your claims kept going out the door so payments could be received, so you could get paid based on your contract requirements and to keep administration off your back about your delay in documenting.”
The result of this behavior resulted in the client (his employer) having to go through an OIG self-disclosure protocol (SDP), which was very costly and required outside counsel to negotiate a settlement agreement with 2.5 multiple as a penalty to satisfy the government. The provider was placed on a Performance Improvement Plan (PIP) and Medicare kept the provider on pre-bill review for a period of three months to ensure compliance on a go-forward basis.
So, for those of you dealing with non-compliant providers failing to or refusing to get their documentation completed at the time of, or shortly after, the encounter or within a reasonable timeframe due to mitigating circumstances after the visit, which is what Medicare expects or within 72-hours of the encounter for United Healthcare and Medicaid (Check with other payors to determine their requirement for note completion and signature); stop submitting claims and keep their services on hold until you are able to confirm documentation exists within the system should the demand for additional documentation arise by a payor on either a pre or post payment audit of your claims.
What to do next…
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