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Healthcare Fraud: What To Do If You’re Audited

healthcare fraudOver the past several years, we’ve seen a trend in increased investigations and enforcement of healthcare fraud. This trend continued in 2013 and is continuing in 2014. Nationally, in 2013, the United States Attorney’s Office investigated 1,013 new criminal matters involving healthcare fraud and filed charges in 480 of these cases. In Georgia, in 2013, there were 336 Medicaid Fraud Investigations.  Of those investigations, only 13 led to indictment; but of those 13 indicted, 10 resulted in convictions. Given this trend, if you are a healthcare provider, it is vital to know what to do if you find yourself being investigated for fraud.   Following are some important  steps to follow if the government shows up at your door with a search warrant: —  Immediately call your attorney. Do not pass go. Call.  It is crucial to call an attorney who has experience in both health care law and in defense. —  Ask for identification of the people at your door. Review the credentials or business card. Write down the name and contact information. —  Do NOT destroy, alter or remove any documents. —  Be polite. Remain calm. Be cooperative. Say please and thank you. —  Ask for a copy of the search warrant and any affidavit filed in support of the warrant. —  Ask what crime and conduct is under investigation. —  Request that no interviews be conducted until your attorney arrives. —  Immediately advise all supervisory personnel of the search and that they are to wait for the attorney to arrive before answering any questions. —  Compile an inventory of all the documents being removed and ask if you can copy all the documents being seized – this includes making a back up disk for all computer files —  Make a record of everything said by an investigating officer. If you cannot do this during the search, write up your recollection after the search —  If possible, videotape or photograph the search —  DO NOT speak with the press Jeyaram & Associates has helped numerous organizations facing charges of healthcare fraud. To learn more or for assistance, contact Kimberly Sheridan at ksheridan@jeylaw.com

Office of Inspector General’s Advisory Could Affect Payment to All Healthcare Providers

OFFICE OF INSPECTOR GENERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES SEALOn May 8, 2013, the Office of Inspector General (“OIG”) issued an Advisory Bulletin pertaining to exclusion and excluded healthcare providers.  Because exclusion could potentially affect every provider, it is important to learn more details about the designation.

If the OIG excludes a provider, then no Federal health care program payments may be made for items or services furnished by the excluded provider or prescribed or directed by the excluded provider.  If the excluded provider changes from one health care profession to another, the exclusion will still be in effect.

In addition, the prohibition is not limited to direct patient care; it also includes services such as review of treatment plans, preparation of surgical trays, or services provided related to filling prescriptions.  Transportation services provided by excluded individuals are also prohibited.

Finally, according to the Bulletin, excluded individuals are prohibited from providing any administrative or management services, even if they are not separately billable.

There are severe consequences if an excluded individual submits a claim or causes a claim to be submitted to a Federal health care program.  A civil monetary penalty of $10,000 per claimed item or service may be imposed.  In addition, any potential for reinstatement to Federal health care programs may be jeopardized.  Criminal penalties may also be imposed.

Civil monetary penalties may be imposed against providers that employ or enter into contracts with excluded individuals to provide items or services payable by a Federal health care program.  Further, there may be civil monetary penalties for health maintenance organizations that contract with or employ excluded individuals.  This does not mean that entities cannot hire or contract with excluded individuals at all.

If the services or items provided are not paid for by a Federal health care program, then there isn’t a prohibition against hiring or contracting with an excluded individual.  If the excluded individual only provides services or items to patients that are not covered by a Federal health care program, then there is no prohibition.

All individuals and entities should search the OIG program exclusion information that is available on the OIG Web site prior to employing or contracting with any provider of health care services and keep documentation of the search. 

In addition, individuals and entities should proactively monitor the exclusions database to ensure that none of its current employees or contractors is listed as an excluded provider.  Due diligence will help mitigate the risk of civil monetary penalties in the future.

Medical Group Management Association: Governmental/Third Party Payer Forum This Friday

Stop by our booth this Friday, November 9th, at the Medical Group Management Association (MGMA) Governmental/Third Party Payer Forum to learn more about how Jeyaram & Associates can help medical practice managers with issues such as Medicaid and Medicare audits, reimbursement disputes, litigation and appeals and how Jeyaram & Associates can serve as your in-house counsel.

https://m360.gmgma.com/event.aspx?eventID=58989&instance=0

U.S. Supreme Court’s Reasoning in Upholding Required Health Insurance Is Questionable

Yesterday the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act.  While some of the media’s “talking heads” may say they were not surprised by the decision few, if any, can say that they were not surprised by the Court’s reasoning in upholding the Act’s most controversial element requiring most Americans to have “minimum essential” health insurance.

The High Court accepted the government’s secondary argument that what the Act calls a “penalty” against Americans that do not obtain the required insurance is valid on a tax since the penalty is to be paid to the IRS and varies based on income.  At first blush is seems like taxes are levied against Americans that make a choice to take an action like purchase a good, own land or live in a particular state, as opposed to choosing not to do something like the purchasing of insurance contemplated in the Act.

Writing for the majority, Chief Justice Roberts framed the tax analysis under the premise that a number of people would opt to pay the penalty rather than pay for health insurance.  The Court repeatedly refers to the penalty as a “payment” rather than a “fine” or “penalty” (as it is referred to in the legislation) to emphasize its point that the penalty is not punitive.  Roberts wrote that “The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.”

Chief Justice Roberts went on to explain that “[N]either the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” He particularly stressed that “Congress’s choice of language…does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.”

We have concerns whether the Court’s characterization of the penalty as a tax will  act as an instruction manual for greater government control over citizens’ inaction simply by characterizing penalties as taxes in any legislation.