Admitting your failures can avoid federal snares
Self-disclosure can make it easier on you
It’s more vital than ever that practices conduct their own internal investigations when they suspect something is out of kilter rather than risk having federal gumshoes get wind of the problem, Michael Kendall of McDermott, Will & Emery’s Boston office recently told the Health Care Compliance Association’s annual conference in New Orleans.
The main advantage of this aggressive approach is that you’re able to get a handle on what’s happening — and why. Then, if it’s a real compliance issue, you will be able to self-disclose the problem to government officials — which generally earns you brownie points — before they become suspicious and start demanding answers.
"Being the first one to knock on the door places you on a certain moral high ground and gives you some creditability," says Kendall.
Here are his rules for conducting an in-house investigation:
• Gather all the relevant facts before the government does.
• Uncover and research potential problems before the government comes to the door.
This way, you already have your defense worked out before any official investigation gets under way.
• Know the relevant laws and regulations thoroughly so that you are will be able to help "educate" investigators and prosecutors about the real issues they should be considering.
• Immediately stop doing whatever it is that could get you into legal trouble.
• Tell the government what you did wrong before it finds out on its own.
• Don’t do something stupid, especially anything that could be construed as an obstruction of justice, such as changing or destroying documents. Make it clear to employees they are to tell the truth if interviewed as part of an investigation.
Remember that when it comes to compliance, it’s not always what you do that gets you into trouble. Sometimes it is what you don’t do — like closely supervise your outside billing service, for instance.
Four emergency physician groups recently learned this lesson the hard way when they were forced to repay Medicare $2.6 million because they allegedly cashed overpayments generated from the regular upcoding of claims by their billing company.
Self-disclosure
If, after talking with your lawyer, you decide to self-disclose possible compliance problems to the government, cases that involve an accidental overpayment or other billing errors that have nothing with breaking the law should go "directly to the attention of the entity responsible for claims processing and payment," advises Jillian Wilson, a health care attorney in the Baltimore offices of Ober Kaler.
However, if you believe an intentional violation of the law has occurred, report that to the OIG, or some other enforcement agency.
This distinction is part of an October 1998 protocol on self-disclosure published by the OIG for all health care providers doing business with Medicare, Medicaid, and other federal health care programs.
In another March 9, 2000, open letter to the health care community, Inspector General June Gibbs Brown announced that providers that self-disclosed improper conduct can receive an expedited review of their disclosures "and, where appropriate, favorable treatment in the resolution of their cases," notes Wilson.
In this open letter, the OIG said it "may forego" exempting providers who step forth and reveal criminal activities from being barred from federal health programs if they demonstrate "sufficient trustworthiness."
Additionally, if the provider can show its compliance program is functioning effectively, the OIG might not require a corporate integrity agreement outlining the terms under which the provider agrees to operate in the future.
For instance, if a practice’s own audit detects a problem that it then discloses, the OIG may permit the practice to perform some or all of the billing audits through its internal auditors rather than requiring the retention of an independent review organization, says Wilson.
Additionally, the OIG might even narrow the scope and focus of the claim review to just the areas reported to be out of compliance — or agree to the use of less burdensome, alternate audit methods than the statistical sampling techniques usually used in such instances.
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