Healthcare Fraud Investigations on the Rise
by Sarah Q. Wirskye
Healthcare fraud is a government priority. Understanding how the government audits providers can help a provider minimize their liability if they are under investigation.
Services Not Rendered
The government often examines whether services billed were actually rendered. One technique for doing so is examining the amount of time the provider spends with each patient. The government divides the number of hours the provider is in the office by the number of patients seen during that day. If the time per patient is unreasonable in the government’s opinion, it may take the position that the provider did not see all of the patients and/or did not see the patients long enough to adequately provide the service. The government has a stronger case in cases where the billing codes are time based. The government may also examine a provider’s travel and credit card records to determine which days he or she was in the office, and compare that analysis with billing records.
If the government concludes that unqualified personnel must be treating patients because of the number of patients seen and/or the provider is not spending adequate time with each patient, the government views this as a quality of care issue. When there is a quality of care issue, the government is much more likely to suspend payments. If services are not being rendered at all, a criminal indictment is also possible.
The provider needs to ensure that she is spending adequate time with each patient. It is also helpful to have the appropriate provider document and sign the charts contemporaneously upon treatment. Such a policy can help “prove” that the provider personally provided the service.
Necessity is another critical issue. If the government can successfully challenge the determination of necessity, then in certain areas, the government can take the position that all charges paid for a patient were improper.
The person making the determination of necessity must be qualified. If the requirement in a particular area is that a doctor must make the determination, this task cannot be delegated to an assistant. The government will also examine how and if the person making the determination of necessity is compensated. If it is an unrelated individual, the government will examine whether there are improper payments, or potentially kickbacks. If it is someone affiliated with the entity, the government will examine whether the professional is being paid fair market value and whether the compensation is based on the number of patients approved for treatment or revenue. Again, such compensation arrangements can be viewed as a kickback.
Upcoding and Unbundling
The government often examines whether a provider is consistently coding a more complex procedure, for which the reimbursement is higher, rather than a less complex version of that same procedure. This is called upcoding. It is critical that the documentation in the patient chart supports the level of service that is being provided.
Unbundling is where one procedure is split up and billed as a number of individual procedures to maximize reimbursement. When two procedures are performed together and there is one lower paying “combination” billing code, that code must be used.
Kickbacks can be gifts or benefits to referral sources, beneficiaries or employees. These are typically easier cases for the government to prove than cases that turn largely on expert testimony regarding complex medical procedures. It is good practice not to make any substantial gifts to referral sources or any gifts at all to beneficiaries, such as rebates or gift cards. The government also sometimes takes the position that employee compensation based upon revenue is a kickback.
A provider’s marketing practices may be examined, including advertising and mailed materials. Providers need to ensure that their marketing professionals know what is appropriate in the healthcare field, what is generally accepted in many other industries may be illegal in the healthcare industry.
While the Federal Criminal Anti-Kickback Statute prohibits remuneration for referrals wholly or partially paid for by government funds, the Texas law is much broader. The Texas Patients’ Solicitation Act prohibits any remuneration for soliciting or securing a patient or patronage for or from a person licensed, certified, or registered by a state healthcare regulatory agency.
In addition to severe monetary sanctions, the government has the ability to require a provider to have a corporate monitor, place a monetary hold or suspend payments to a provider, exclude a provider from government programs and even bring criminal charges against a provider. The collateral consequences from a government investigation may also implicate licensure issues with the State Board.
One of the most basic things a provider can do to minimize liability is to accurately chart to support the services rendered and know the rules.
Sarah Wirskye is a partner with the firm of Meadows Collier. She represents individuals and entities in civil and criminal disputes with federal and state governments. She can be reached at firstname.lastname@example.org.