If you are a doctor or other healthcare provider who has been charged with a violation of Medicare's billing and services provisions, then there are a number of issues of which to be aware. The federal government is particularly stringent when investigating claims of fraud or abuse. If repeated mistakes or improper billing practices have been reported and prompted the government to take action, then an excuse for a mistake will not be sufficient to avoid fines and possible consequences for your license. The government has an extensive toolbox of laws in which to pursue punitive actions, including the False Claims Act, the Anti-Kickback Statute, the Physician Self-Referral Law, the Exclusion Statute, and the Civil Monetary Penalties Law.
Common claims brought under Medicare abuse or fraud include:
unbundling services for higher reimbursement;
assigning a code for a higher level of service than that which was actually performed;
billing for patients who do not exist;
submitting a code for a service that is covered under Medicare or Medicaid when the actual service was not covered; and
submitting bills for services that were not performed.
Under the Affordable Healthcare Act (ACA), Health and Human Services can suspend payments under Medicare while medical practitioners are being investigated for alleged violations.
Despite the prevalence of government enforcement actions, the prosecuting entity does need to prove that the erroneous billing was intentional and not an “honest” mistake to invoke the most serious penalties. This falls in the favor of the practitioner as the Medicare billing system involves an archaic structure of coding that lends itself to confusion and mistakes. Reasons for inappropriate billing could be clerical errors, intentional errors by employees that were not realized before submission, mistakes by undertrained or unsupervised employees, and even errors on the part of the government in its paperwork or processing.
Negative outcomes of a government prosecution could include:
significant fines and repayments;
exclusion from all government health care payment programs;
disciplinary actions by other administrative agencies;
revocation of your professional license; or
even criminal charges and imprisonment.
Turning to an experienced attorney can aid you in negotiating a settlement, including a repayment plan, and avoiding criminal charges.
Separate from an action brought on an allegation of Medicare fraud or abuse, the Department of Audits and Accounts (DOAA) can perform an audit of submissions from your practice going back years and are extremely thorough. A majority of these audits result in the recoupment of past payments and a significant percentage result in criminal charges being pursued. These audits are conducted through the Recovery Audit Program and involve Recovery Audit Contractors (RACs), who are responsible for finding overpayments under Medicare and Medicaid during a three-year look-back period and recouping those funds. These auditors are paid on a contingency basis; therefore, it is in their best interest to recover the maximum overpayments possible.
Overall, an experienced attorney can aid you during the audit process by assisting you in the completion of audit questionnaires, compiling and presenting all the requisite paperwork and backup documentation, and working with the auditors to create a repayment plan for any overpayments. It is important to make all documents readily available and make notes of all pertinent information to ensure a smooth process and avoid allegations of non-cooperation. Prior to notification of an audit, self-audits can identify problem areas and a plan can be implemented to correct those issues. A formal Corrective Plan can be put in place before an audit is noticed. This plan can be used to negotiate settlement of any overpayments or improper payments that are included in an audit finding at a later date.
There is a formal appeal process that must be followed to address any negative findings from a RAC determination. A request for redetermination must be filed within 120 days of the initial finding. If this is not successful, a request for reconsideration must be filed within 180 days of the redetermination. A hearing before an Administrative Law Judge (ALJ) may then be requested within 60 days of the notice of the reconsideration amount. Within 60 days of a negative or unfavorable decision by the ALJ, an appeal may be made to the Medicare Appeals Council (MAC) within 60 days of ALJ's decision. Finally, an appeal may be brought to a United States District Court within 60 days of an unfavorable MAC decision.