Federal officials give doctors detailed fraud and abuse guidance
In a move that health care attorneys say is remarkable for its depth of detail, the Health and Human Services Department’s Office of the Inspector General (OIG) has issued a draft compliance program to help individual and small group physician practices combat fraud and abuse in government health programs.
The focus of the program will center on Medicare and Medicaid. June Gibbs Brown, inspector general, said the OIG also went to great pains to demonstrate the government’s belief that the vast majority of physicians are honest and trying to comply with the law, as well as to say that honest mistakes, and even negligence, are not punished.
Like preventive medicine
The draft was published in the June 12 Federal Register, with comments due by July 27. It can be viewed on the Internet at http:// www.hhs.gov/progorg/oig/medadv/ cpgphynr.htm.
"Adopting a voluntary compliance program is a lot like practicing preventive medicine," said Ms. Brown. "It helps identify and treat small problems before they become big problems.
"Strong enforcement and strong voluntary prevention are equally important in safeguarding the government health programs from fraud and abuse. And the cornerstone of our prevention efforts is the development of voluntary compliance guidance that, in partnership with the private sector, will help the health care community develop effective compliance programs," she added.
The draft acknowledged "significant misunderstandings among physicians regarding the critical differences between fraudulent [intentionally or recklessly false] health care claims . . . and innocent erroneous’ claims . . . ."
The OIG said its office does not disparage physicians, other medical professionals, or medical enterprises. Rather, it stated, "In our view, the great majority of them are working ethically to render high-quality medical care to our Medicare beneficiaries and to submit proper claims to Medicare."
The OIG also explained that under the law, physicians are not subject to civil or criminal penalties for innocent errors, or even negligence. Both the Civil False Claims Act and the Civil Monetary Penalties Law — the two main enforcement tools available — cover only offenses that are committed with actual knowledge of the falsity of the claim, reckless disregard, or deliberate ignorance of the falsity of the claim, the draft said.
The False Claims Act "simply does not cover mistakes, errors, or negligence. When billing errors, honest mistakes, or negligence result in erroneous claims, the physician practice will be asked to return the funds erroneously claimed, but without penalties. In other words, erroneous claims result only in the return of funds claimed in error," according to the OIG.
Reducing error rate
Because innocent billing errors are a significant drain on the program, all parties — physicians, providers, carriers, fiscal intermediaries, government agencies, and beneficiaries — need to work cooperatively to reduce the overall error rate.
The draft guidance lists seven basic elements the OIG said should be considered in any physician practice compliance program:
• developing a code of conduct with written policies and procedures;
• assigning compliance monitoring efforts to a designated compliance officer or contact;
• conducting comprehensive training and education on practice ethics and policies and procedures;
• conducting internal monitoring and auditing, focusing on high-risk billing and coding issues through periodic audits;
• developing accessible lines of communication, such as staff meeting discussions, to keep practice employees updated on compliance activities;
• enforcing disciplinary standards by ensuring that employees are aware that compliance is treated seriously and that violations will be dealt with consistently and uniformly;
• responding appropriately to detected violations through investigation of allegations and the disclosure of incidents to appropriate government entities.
While not officially prescriptive, nothing in the guidance is mandatory for physician practices, the guidance is useful in giving very detailed explanations of many parts of each of the seven elements.
The OIG said it realizes there is no one-size-fits-all compliance program and that applicability of any of the recommendations depends on the circumstances of each particular practice.
"Each practice should undertake reasonable steps to respond to each of the seven elements of this guidance, depending on the size and resources of the practice. Compliance programs not only help to prevent fraudulent or erroneous claims, but they may also show that the physician practice is making a good faith effort to submit claims appropriately," explained Ms. Brown.
Developing policies
An effective program also puts practice employees on notice, the guidance said, that while the practice recognizes that mistakes will occur, employees have an affirmative, ethical duty to come forward and report fraudulent or erroneous conduct so that it may be corrected.
To help physicians develop policies and procedures covering the fraud and abuse topics that are most applicable to their own practices, the OIG provides a list of potential risk areas affecting physician providers, including:
1. coding and billing;
2. reasonable and necessary services;
3. documentation;
4. improper inducements, kickbacks, or self-referrals.
The OIG said its list should be seen as a starting point for a practice’s internal review of potential vulnerabilities to ensure that key practice personnel are aware of the risk areas and are taking steps to minimize, to the extent possible, the types of problems identified.
Ms. Brown said that while physicians clearly are very busy, "We hope they will take the time to review the draft guidance and provide us with thoughtful comments. Practicing physicians can offer invaluable insights about how they and their colleagues can put voluntary compliance plans into place in their practices."
Initial reviews of the compliance document by health care attorneys and practice trade associations indicated support for its flexibility and helpfulness, and for the distinction between fraudulent and erroneous claims, although at least one group still has some concerns.
The Medical Group Manage-ment Association (MGMA) in Englewood, CO, had recommended the OIG not issue the guidance out of fear that many small practices would have difficulty meeting its expectations.
Making it easier
Aaron Krupp, government affairs representative for MGMA, tells State Health Watch that his organization recognizes that in preparing the draft the OIG included some of the group’s earlier recommendations, such as not mandating a toll-free telephone hotline for employees to use to anonymously report violations, allowing two or more practices to share a compliance officer, or permitting a practice to contract out that responsibility.
Mr. Krupp says MGMA is still concerned about the guidance’s call for a baseline audit, which may be too costly for many small practices, and the recommendation that practices maintain a library of regulations and other materials.
Maintaining such a library will be hard for them to do because they often don’t have Internet access and don’t have the financial or human resources to spend on researching and assembling materials, he adds.
Overall, MGMA is concerned that while the OIG says the guidance is not mandatory, the way it lays out recommended essential elements sends a mixed message, raising the possibility that practices that don’t have all the elements will be considered to not have a good compliance program.
Mr. Krupp also says any guidance needs as much flexibility as possible to meet the needs of small practices.
Contact Mr. Krupp at (202) 293-3450.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content