OIG warns of expanded administrative sanctions
Senior counsel discounts contention that agency is criminalizing honest mistakes
The HHS Office of Inspector General (OIG) plans to increase the use of administrative sanctions — including the civil monetary penalty and exclusion authorities — "where the evidence warrants," says Mac Thornton, the OIG’s senior counselor.
For the first time, a practicing health care lawyer is Inspector General, and that has brought a new perspective to the OIG, Thornton told attendees at the American Health Lawyers’ conference in Baltimore April 3. On one hand, that means cooperation with health care providers. "But make no mistake, the OIG is still expanding in staff and in geographical reach," he warns. According to Thornton, the OIG’s Office of Investigations will reach all 50 states with resident offices this year.
Thornton also discounts contentions that the OIG is criminalizing honest mistakes and innocent errors. In fact, he says unwarranted fear is driving some physicians from the Medicare program. It also is leading to a failure to report overpayments and, in some cases, deliberate undercoding. To combat those fears, Thornton points out that, over the last three years, fewer than 50 physicians a year have received a criminal conviction or civil sanction by the OIG.
According to Thornton, the OIG believes two important infrastructure components require attention. One is the system for assessing overpayment collections and the Medicare appeals process. The contractor claims-processing procedures for overpayment collections could be substantially standardized across the country, and methods for determining overpayments also should be standardized, he argues.
The same holds for differences among contractors regarding coverage and payment policies, which could be made more consistent, Thornton says. Medical reviews also should be more standardized and predictable, he adds.
"All of these steps are important in view of the fact that many health care enterprises now provide services in more than one jurisdiction of carriers or intermediaries," says Thornton.
The current framework for conducting Medicare appeals is "ineffective, untimely, and confusing for everybody," Thornton concedes. He adds that while fundamental reform is pending in Congress, many improvements could be made immediately through regulatory action.
Among the OIG’s suggestions for improvement are the establishment of an administrative appeals process dedicated to Medicare, ensuring adequate resources for each level of appeal, and providing for Centers for Medicare & Medicaid Services (CMS) representation at the higher levels of appeal.
In addition, he says that reviewers at different levels use different standards. "A lot of improvements could be made," he argues.
"The IG can make a difference at the margins, but with respect to grand shifts in policy, that’s up to Congress," argues former HHS Principal Deputy General Counsel Robert Charrow. "The IG can steer a ship a few degrees to the right or left, but only Congress can turn the ship around."
Fixing the outdated enforcement that now governs health care fraud enforcement must be a top priority, says Charrow, of the law firm Crowell Moring in Washington, DC. According to Charrow, the most needed reform is the ability of providers to sue CMS. "The ability to have meaningful judicial review of CMS and OIG actions would be first on my priority list," he says.
"The real question you have to ask yourself is, Why should CMS be less accountable than any other federal agency?’" he says. "One could argue they should be more accountable — not less — because they affect the lives of more people." Agencies that are not subject to judicial review tend to become "cavalier" and "arrogant," and that is unhealthy, he adds.
Legislation is pending that would amend the appeal process and make certain regulatory changes. However, Charrow argues those bills would do little more than codify existing court decisions.
Charrow also contends that the anti-kickback laws governing federal health care programs vest "extraordinary discretion" in the OIG and HHS and are so expansive that they prohibit conduct that is perfectly legitimate in other settings, he says.
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