Medicare Compliance & Reimbursement

7 ways practices can stay protected

Many health care providers enlist the help of consultants to navigate today's complicated regulatory environment. And while many consultants give first-rate advice, some fall short of the mark - leaving their clients facing False Claims Act violations or other charges from the feds.

Providers often employ consultants for legal or financial advice, notes Tessa Chenaille with Chenaille Compliance Consulting in Medford, MA. Those areas, such as compliance and billing, are what make people feel "anxious," she says. That's because those are the areas to which the feds pay close attention.

Warning: If doctors act on bad advice from a consultant, they can be held responsible for results of that advice, be they false claims or other compliance breaches. However, there are ways to avoid being the victim of faulty advice.

Protect yourself: Here are some steps that can ensure that "reliance on bad advice does not lead to False Claims Act liability," according to a Law Watch from the law firm Foley & Lardner:

1. Do not predetermine the reimbursement strategy based on economic factors.
2. Seek advice from the consultant before submitting the claims at issue or making a change in reimbursement methodology.
3. Check the consultant's references to make sure the consultant selected is recognized as an expert in the field and has substantial experience in the particular reimbursement matter under consideration.
4. Clearly define the role of the consultant.
5. Present the consultant with all material information including additional facts learned after the commencement of the consultant's work.
6. Obtain the consultant's advice in writing.
7. Strictly follow the consultant's advice, as long as it is not obviously unsound.

Another idea: To help ensure the advice is solid, ask for the source of the consultant's information, counsels attorney Rob Wanerman with Epstein Becker & Green in Washington. The primary source should be publicly available information, such as files from the Centers for Medicare & Medicaid Services, he says.

Providers today must "insist on a much more sophisticated level of disclosure" from their consultants than in the past, Wanerman notes. You must ask where the consultant's information came from, how current it is, what kind of follow-up is required, what he's basing his interpretation of the information on, and how reliable the information is.

Even information that comes from an official source might not be ironclad, Wanerman warns. There are degrees of solidity and quality among official sources, he explains. For example, something published in the Federal Register is very solid, whereas a letter from a CMS staffer could prove very flimsy.

To read an HHS Office of Inspector General Special Advisory Bulletin on the practices of business consultants, go to http://oig.hhs.gov/fraud/docs/alertsandbulletins/consultants.pdf.