Key questions to ask in setting probe scope
Here’s advice on priorities of an internal probe
One of the most difficult issues during a compliance investigation is determining the extent of an internal probe. Here is the consensus of compliance officers from around the country and government officials as contained in the report, "Building a Partnership for Effective Com pliance, A Report on the Government-Industry Roundtable," published by the Office of Inspector General (OIG):
• What is the origin of the issue to be investigated? A billing concern may be the result of a systematic practice, a third-party inquiry, or misconduct by certain individuals. A systematic noncompliant billing practice may have been tied to implementation of a new system or an initiative based on faulty advice from a consultant or Medicare contractor, for example. A third-party inquiry may have been prompted by a whistle-blower or submission of an improper claim.
• When did the issue originate? A systematic billing practice may warrant internal inquiry into the origin of the practice and the extent of its impact upon an organization. Improper billing by certain individuals may require scrutiny of their entire employment history, an analysis of their effect upon other employees, and a review of the directions they may have received from superiors.
• How far back should the investigation go? The participants agreed that a provider should establish reasonable and calculated benchmarks to assist in determining the parameters of an internal investigation. Investigation standards for one organization may not be applicable to another. Some providers may always commence their internal investigations by reviewing a year of previous billing, while others may start with a month of prior billing. Some providers also designate a specific number of claims to review. Regardless of the investigative protocol used, the participants said a provider should determine the parameters of the investigation based upon a reasonable approach that is justified under the circumstances.
For example, regardless of the initial period of time reviewed or the number of clinical services analyzed, the inquiry should be expanded if the results of an initial review suggest a broader problem. Billing misconduct by one employee may prompt scrutiny of conduct by other employees. Problems with one facility in a large health care organization may warrant review of other facilities. In any case, providers need to document the investigative methods used and the reasons for the investigation decisions made.
• Can extrapolation of a statistical sample be used? Some participants rely on statistical samples and extrapolation to rectify reimbursement problems when it is too difficult or costly to ascertain the exact cause of improper billing. Others indicated that they do not rely on extrapolation because samples of improper billing identified may not accurately represent an organization’s entire billing practices (e.g., deficient billing may be the product of certain individuals, specific sites of operation, or particular billing procedures).
Once the scope of the investigation is set, issues must be prioritized. Compliance officials participating in the session that produced the report said as they implemented their compliance programs, they often come across a significant number of issues that required additional investigation. The following questions were offered to help compliance officers prioritize their actions:
— Does a corporate integrity agreement with the OIG require that the compliance officer focus on certain issues?
— Does the problem pertain to a discontinued practice or to a current practice with prospective exposure?
— Can certain billing software be used to perform a prompt preliminary review?
— Can deficient billing be suspended or ceased until a review can be completed?
— Could the issue under investigation have a significant impact on the provider’s Medicare cost report and interim payments?
— Does an issue present credible evidence of ongoing misconduct that may violate criminal, civil, or administrative law, and should be immediately reported to a government authority?
— Has the organization established its own standards for the amount of time allotted to address incoming compliance concerns?
Another tricky area is how much compliance officers and the provider’s general counsel or outside lawyers can work together. While compliance officers generally would like to work openly with the attorneys, some concern was expressed that lawyers may be included in internal investigations merely to keep the investigative work product secret.
The OIG’s position is that when the attorney-client privilege (or the attorney work product doctrine) is improperly invoked to protect the documents involved in an internal investigation, a provider risks losing the privilege. Meanwhile, cloaking all aspects of an internal investigation under the protection of a privilege raises questions about a provider’s desire to be forthright and honest, said investigators.
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