News From the End-of-Life: OIG warns of expanded administrative sanctions
Senior counsel cites need for regulatory fixes
The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) plans to increase the use of administrative sanctions — including the civil monetary penalty and exclusion authorities — "where the evidence warrants," said 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 on 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 have established resident offices in all 50 states by the end of this year.
Thornton discounts contentions that the OIG is criminalizing honest mistakes and innocent errors. He pointed out that over the last three years, fewer than 50 physicians a year have received a criminal conviction or civil sanction as a result of OIG action.
According to Thornton, the OIG believes certain important infrastructure components require attention. One is the system for assessing overpayment collections and the Medicare appeals process. Contractor claims-processing procedures for overpayment collections could be more standardized nationally, 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 and Medicaid Services representation at the higher levels of appeal.
Another problem, he says, is 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."
Correcting 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.
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