The Changing Priorities of the United States Department of Justice
How Medical Providers can protect themselves from unjust Medicare and Medicaid Fraud prosecution
For every presidential administration there is a crime that is selected for which the Department of Justice is tasked with stepping up prosecutions and for getting tough on crime. For President Bush’s Justice Department that crime was child pornography. For President Obama’s Justice Department, in an attempt to vilify the “greedy” medical doctor in order to justify the President’s socialization of the Medical System in the United States thru Obama Care, that crime is Medicare and Medicaid fraud. From child pornographers to medical doctors. One has to question the changing priorities of our Justice Department.
It would be a mistake for any medical Doctor to be unconcerned about being selected for prosecution because he or she has not intentionally committed fraud because one of the favorite tools of state and federal prosecutors in bringing claims against doctors is the allegation of up coding. Of course up coding is the act of entering a medical billing code when billing the government for a procedure and using a billing code that pays a higher rate than the code the doctor “should have” billed. Simple enough of a concept – right? Should be pretty easy to avoid – right? Wrong.
If you are a doctor accepting insurance payments from almost any insurance plan including government Medicare or Medicaid – which is just about every medical provider in the country you know how complex medical billing has become. The complexity of the medical code and which code covers what can easily cause the medical provider to enter the incorrect code. Once that provider settles on a code to use and if the code is incorrect and he uses that code often enough he can become a target of the government, especially if he has a disgruntled employee who decides to try to make some money by making a whistle blower claim. Humana Whistle Blower Claim.
It is very easy to make honest mistakes in using the “proper approved” billing codes, and although honest mistakes are made the Federal Government does not have a forgiving nature.
The government will not accept your explanation that it was a simple mistake. They will accuse you of an intentional ongoing scheme to defraud the government. So what can you do to protect yourself?
Below I have listed a few steps that every medical doctor and provider should take in order to protect themselves from a government criminal or civil prosecution for Medicare or Medicaid fraud. These are the minimum steps you should be taking.
- Training. Make sure whoever does your billing is trained and receives continuing training on proper coding. Hire an outside experienced and reputable company who are experts in coding if possible.
- Document Communications. Keep any communications between your office and Medicare and Medicaid when you contact them with questions about coding so that when they later claim that what you did was wrong you have proof that they told you to do it that way. If the contact was a telephone call send a confirmation email or letter of your understanding of the conversation.
- Keep all contracts and renewal audits. When Medicaid and Medicare audit your files to renew your contract and they send you your audit score keep those records. Do not count on the government to keep it. I have actually seen case(s) where the government after auditing files and renewing contracts and after giving the medical doctor high scores for his billing practices later brings a claim involving the very same time period. The fact that you passed a prior audit and were told you were in compliance is powerful evidence you were acting in good faith and not committing fraud.
- Try to avoid chart cloning. When you cut and paste prior chart entries without any changes to the chart note the government will claim this is evidence that you are not actually treating the patient. If there is any change in diagnosis, treatment, or symptoms make sure the change is noted. If not make a note that there has been no change and if possible even document things that are inconsequential such as the nature of any small talk specific to that patient such as family, pets, etc, to avoid allegations that you are not actually seeing, treating, or evaluating the patient.
- Hire the right lawyer. If you are notified that you are under investigation or that a criminal or civil prosecution is being brought against you hire an experienced criminal defense lawyer. As highly trained and educated professionals doctors often network and socialize in certain professional and economic circles and make the mistake of deciding what lawyer to employ to defend them based on what law school the lawyer went to or what law firm he works for. In other words they tend to consider the pedigree of the lawyer without ever considering what skills and experience the lawyer actually has. This is a huge mistake.
If you are facing a Medicare or Medicaid fraud investigation or prosecution you need a great trial lawyer. Great trial lawyers are rarely born and they do not exist simply based upon the fact that they went to a particular school or work at a particular law firm. Great trial lawyers must know people and must be able to relate to people because they are trying to persuade a jury. Great trial lawyers must be able to think strategically and tactically employing the facts of the case, the law, the rules of evidence, and the rules of procedure. They must have an understanding of the personality of the opposing attorney and of the judge. The great trial lawyer must understand all of this and know how to develop a battle plan built around all of these factors. Then when something goes wrong or the unexpected happens he must have the courage and confidence not to panic and the mental agility to react quickly and to change tactics accordingly.
The only lawyers that I know who possess all of these skills are the lawyers who have had their skills forged in countless battles and legal wars and actual jury trials. The only lawyers who I know who have obtained sufficient experience to obtain these skills are the lawyers who as young lawyers have tried hundreds of cases as a criminal prosecutor or criminal public defender. A prosecutor or public defender will try more cases in one year than the pedigreed lawyer sitting in his penthouse office will try in a lifetime. Find the lawyer who has had this experience and who has experience with Medicare and Medicaid fraud cases.
The law is the easy part. An average trial lawyer will focus on the law and will try to explain to the jury that you did not violate the law. A good or great trial lawyer knows that winning any trial often depends more upon giving the jury a reason to want to find in his client’s behalf than on the technicalities of the law. He will know how to go beyond the mere legalities of the case and will know how to present your entire story to the jury. He will communicate to the jury how you as physician or medical provider are someone who cares about your patients but you are fighting an uncaring federal and state bureaucracy called Medicare and Medicaid that is actually inhibiting proper patient care, and tasking you with impossible and unreasonable demands.
Finding the right lawyer can literally mean the difference between ending up in jail and losing your practice versus staying out of jail and saving your career.
Brent Horst, Attorney at Law
Nashville Tennessee. Licensed in Tennessee and Florida