By Joe Flores, JD, APRN, FNP • Nurse Practitioner
Published on Apr 12, 2018
Op-Med is a collection of original articles contributed by Doximity members.
Whether you are an MD, DO, NP, or PA, the chances of being audited have increased over the past decade. Recovery Audit Contractors and government agencies such as the FBI, OIG, and HHS are on the lookout for unusual schemes or patterns that are out of the ordinary. An arrangement that you may think is perfectly legal may be one that can create civil and possibly criminal problems for you and your practice.
Here are 7 tips to help you mitigate your risk of health fraud:
1. Investigate your employees. Marketers or individuals who bring patients into your practice are a prime area for investigation. These individuals, also known as business development specialists, are people who know doctors, home health agencies, long-term care facilities, and other entities that bring in referrals. Often these individuals may not have any specialized training, degrees, or licenses. In other words, not much to lose and everything to gain by bringing you patient referrals. These individuals may be promising patients, health care entities, and provider services on your behalf that you are not aware of. Often a federal investigation will start with a marketer or assistant at your office who brings up red flags for auditors and government agencies. I personally have seen investigations launched because of a high school graduate who presented him/herself as a marketer and promised home healths that the doctor they work for would sign their 485s or plans of care in order to recertify the patient for more home health services. This potentially criminal conspiracy mistake can unwittingly involve the NP, PA, or MD if the home health agency switched over their patient to that particular doctor. Tip: Have a compliance officer or attorney check out each employee and have a strict compliance plan on Stark and False Claims Act Laws.
2. Billing. Still today, providers are upcoding in the government’s eyes. A 99315 billed too many times even if you have complicated patients can trigger audits, heavy fines, and jail time. Although it is painstaking, it is well worth looking over your billing practices and auditing the status quo in your billing practices. Tip: Be sure that your documentation substantiates each billing code on each patient.
3. Billing with NPs. Many physicians hire and supervise NPs. An NP who had a clinic in Texas just got hit with $900,000+ in back billing for a coder using a physician visit code when the NP went alone to the nursing home. Now, both the MD and the NP are facing civil and possibly criminal charges. Tip: In most instances, 85% of the coding should be at or under CMS of what an MD bills.
4. Home Health Businesses and Face-to-Face Criteria. Many home healths and hospice agencies will say, “Don’t worry, our NP will see the patient for you. Just sign.” Ethically, have you seen the patient? It is hard to know exactly what a complicated patient needs if you have not seen the patient face-to-face in months. If you are the medical director of a home health, take this responsibility seriously. The government sees a lot of fraud and waste in this area and physicians are going to jail for signing the plan of care without ever seeing the patient. Tip: Always keep record of seeing your patients in person before signing a plan of care and ask that the patient be brought to your clinic for examination if at all possible.
5. Gifts, quid pro quo, or any remuneration. Today, doctors and NPs are receiving gifts or increased pay for seeing more patients. Gifts should be de minimus or under 50 dollars and rare (a luncheon with an in-service might be appropriate but not on a frequent basis). Because the agency is initiating these gifts with the staff, the MD or NP is often oblivious to this type of quid pro quo set up or reimbursement scheme. Tip: Be sure that your contract with any entity is not based on how many patients you are bringing in or avoid receiving unusually frequent gifts no matter how minimal they may seem.
6. Billers versus coders? Billing is a very highly scrutinized area. CMS, OIG, HHS, FBI, and others are reviewing billing very carefully. Many mom-and-pop shop billers mean well but are paid by the percentage of what is billed (often between 4 and 8 percent of the revenue or even as high as 10 percent). There is a great temptation to bill more and at a higher code for someone who is recouping a percentage of all billing. Ask yourself, who will get in trouble? Coders are professionals as well who are often specially trained to know to the scintilla of what should or should not be billed. Often a physician does the usual mistake: Gets a family member or spouse to do the billing without any oversight and hits the higher codes often enough to draw a red flag. Tip: Get outside counsel who has dealt with the government to “toss your books” and see that the billing is up to par and is compliant.
7. Hating lawyers. Before I became a lawyer, I was wary of lawyers. However, hiring a lawyer that “speaks your language” and understands medicine, the law, and billing is a necessity. You also need a lawyer with criminal, civil, and administrative experience. A federal or state investigation could bring with it exposure to tax, medical or nursing license issues, criminal exposure on a state and federal level, and even the risk of losing your participation in health care. Audits are mandatory. Meeting with lawyers on legal Issues is mandatory on an annual or semi-annual basis. Be advised that the Justice Department, HHS, and OIG are on the warpath. Remember that America incarcerates more people per capita than any other country in the world. Prosecutors, judges, and juries have very little sympathy for “rich” doctors and other health care providers. Why take a chance? Although you may have grossed 7 million in billing to Medicare but only kept 15 percent of that, it is very hard for a jury to understand the difference between EBIDA and what is billed to the government. Likewise, the government goes by what is billed, not what you kept. Even if you had 10 partners you are still on the hook for all of the billing as part of a “conspiracy” if things go to worst case scenario. Tip: Hire a lawyer now. Don’t wait until you’re in hot water. Make sure the lawyer you hire is familiar with the kinds of audits and cases that could plague your practice.
Joe Flores is a trial attorney and a practicing nurse practitioner who has represented and consulted thousands of health care providers. Joe loves what he does! Joe represents health care providers in licensing proceedings, federal law proceedings and is a Texas Trial lawyer. He plans on obtaining his eligible state licenses in Illinois, New York and D.C. in the near future and works with lawyers in each state and territory in order to offer his clients the best defense possible on a national practice level. In the last few years he has seen fines and civil actions turn increasingly into criminal charges for HCP’s. Joe began his career in the law early on as an expert witness for lawyers and became fascinated with both health care and the law. Joe urges you to please call him or any qualified health law attorney in order to make sure that your practice is compliant. Joe can be reached day or night at 361–887–8670 or [email protected].
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