Medicare Compliance & Reimbursement

Tip: Make compliance with federal regs a priority.

It’s no secret that healthcare is a top target of federal enforcers. And with huge takedowns dominating the news, you might think that the nation’s watchdogs only go after management and clinicians — but evidence suggests that the feds are now pursuing auxiliary staff with the same vigor.

Context: Preparing and submitting claims for reimbursement is a crucial part of the nation’s healthcare system as it is currently designed. But when the claims are submitted to the government, there are regulations in place to reduce the incidence of fraud. Legal experts who specialize in healthcare law point out that federal agencies are devoting more energy and bandwidth to pursuing individuals who file false claims, under both anti-kickback laws and the False Claims Act (FCA).

“We’re seeing more and more billers and coders and administrative personnel really get in trouble with the government. I mean, the fact is, that the government is not just looking at physicians and home health agencies and hospices; they’re looking at the people actually responsible for the button that debits the federal fisc,” said Robert W. Liles, JD, MBA, MS, CPC, managing member at Liles Parker PLLC, in a session presentation for virtual 2020 HEALTHCON.

Don’t Expect Cover From Company, Corporation

Federal agencies are increasing their focus on individuals’ misconduct, even though there aren’t any new rules, regulations, or court decisions, per se.

Backtrack: In September 2015, then-Deputy Attorney General Sally Yates released a memorandum addressing individual accountability in corporate wrongdoing, with guidance for investigators of any corporate misconduct. “Because a corporation only acts through individuals, investigating the conduct of individuals is the most efficient and effective way to determine the facts and extent of any corporate misconduct,” Yates said. This memorandum, known colloquially as the “Yates Memo,” is at www.justice.gov/archives/dag/file/769036/download.

“The DOJ made it very clear that they were going to go after individuals, which, if you think about it, makes a lot of sense,” Liles said. “You can’t throw a corporation in jail. Corporations can’t break the law, individuals in corporations break the law.”

The upshot is that individuals are indeed being held accountable — including facing stiff penalties or even jail time. The healthcare industry seems to be a particular focus, with cases built on foundations involving the Anti-Kickback Statute (AKS), the Physician Self-Referral Law (Stark), and the FCA.

“Of the $2.8 billion in settlements and judgements recovered by the Department of Justice this past fiscal year, $2.6 billion involved the healthcare industry,” Liles noted. These figures do not include any funds recovered for state Medicaid programs.

The penalties aren’t just financial, either. During fiscal year 2019, the HHS Office of Inspector General excluded 2,640 individuals and entities from participation in federal healthcare programs, Liles said.

“DOJ prosecutors must now first resolve cases against individuals in possible misconduct for civil and criminal violations before resolving corporate cases — as a result, the personal liability of office managers, administrators, coders, billers, and, in some cases, even compliance staff, has increased greatly,” Liles said. “This added exposure can result not only from willful misconduct, but also from allowing the wrongful conduct to happen through willful neglect.”

Understand Your Responsibility

There is increasing awareness of and focus on the reality that some of the “smaller players” in a medical practice have a good idea of what’s going on behind the scenes when fraud is suspected or alleged.

“In many cases, they’re finding that when [physicians] have engaged in wrongdoing, the billers and office managers have known there was something going on,” Liles said.

Liles says that it’s the responsibility of people in these roles to try to curb fraud, if they know it’s happening. Otherwise, they risk culpability personally.

“Billers and coders and office managers … you have an affirmative obligation to protect the federal fisc; you can’t just bury your head in the sand and bill whatever the doctor tells you to bill. If you know that there’s not documentation backing up a claim, if you know that there’s a problem with some of the claims going out, you cannot just turn a blind eye. You have to tell them, ‘Hey, we can’t bill for this,’” he explained.

Know the Consequences

Federal agencies have upped the ante for penalties in 2020, increasing financial fines to $100,000 from $25,000, and increasing imprisonment and maximum sentencing for felonies involving federal healthcare program fraud involving kickback violations.

Healthcare entities and individuals who work in the industry and could be held accountable should know that the potential costs involved in getting caught can be tremendous.

“FCA defendants often defend against allegations that span several years or include hundreds, if not thousands, of individual claims, and the penalties assessed by the DOJ quickly add up — often resulting in multimillion-dollar settlements. Healthcare entities should also be aware that the Department of Health and Human Services has its own authority to issue civil penalties for false claims, further increasing the potential cost of violations,” say Ritu Kaur Cooper, James Junger, Drew Howk, and Matt Schappa, attorneys at Hall Render, in recent online analysis.