10 Things to Know About Government Investigations of Dental Providers
10 Things to Know About Government Investigations of Dental Providers
Both the Federal and State Governments have significant tools to combat fraud, waste, and abuse in the health care setting. Although most investigations involve those who bill government payors, such as Medicaid or Tricare, the government’s ability to bring civil and criminal actions also applies to claims billed to any health care benefit program. The following is general information regarding government investigations that any dental practitioner should keep in mind. Note that this guidance, while more specific to government investigations, also provides a road map for best practices for all dental practices, including those who see predominately private pay patients.
- Billing Patterns Are Important. Both the Federal Government and the State can investigate claims paid through Medicaid. The Government’s investigations are generally driven by two factors: (1) data analysis and (2) whistleblower complaints. Both the State and Federal Government employ analysts who study data trends and look for unusually high billing patterns. Where a provider has an unusually high billing of certain procedure codes, the government will generally audit the provider’s patient records. If the government believes from these records that there is a credible likelihood of fraud or abuse, the government will then request a statistically random sample of files from which it can extrapolate the amount of loss to the government. Note that private health insurers also rely on statistical data to audit and investigate billing patterns for possible recoupment. If your practice has a high volume of certain procedures, make sure that you can explain why your practice performs these procedures more than the average practitioner.
- Whistleblowers, Such as Former Employees, Are Important Government Referrals for Fraud. Both Federal Government (through the Federal False Claims Act) and the State Government (through MAPIL) allow whistleblowers to file suit on behalf of the government to recover damages for false or fraudulent claims. The whistleblower is entitled to a certain percentage of the government’s recovery, which incentivizes the filing of claims. The government is generally obligated to conduct a good-faith investigation of the whistleblower’s claims and will prosecute the claims when the whistleblower’s allegations turn out to be credible and supported by the evidence. Usually, the whistleblower is a former (disgruntled) employee with direct knowledge of the billing practices or a competitor who believes the other party is employing uncompetitive techniques. Because knowledge that false billing was occurring is key to government recovery, it is very important to address and/or investigate any and all concerns an employee may have regarding the medical necessity of procedures and the billing of any procedures.
- Failing to Remit Overpayments Can Be Considered Fraud. Under the Federal False Claims Act and MAPIL, a claim is considered “false or fraudulent” when the provider discovers that he/she billed by mistake and fails to repay the claims to the government. Once an error in overbilling has been discovered, it is important to remit the overpayment. If the overpayment is significant such that repaying it is not financially possible at the time, consulting with counsel can help you determine your best options in how to handle that matter. Note that the penalties under the False Claims Act and MAPIL provided for statutory fines and up to treble damages of the amount billed, so failing to repay an overpayment can result in enormous financial exposure.
- Know Who Your Employees Are. If you bill a government health benefit program such as Medicaid, you need to make sure that none of your employees are excluded from participation in federal health care programs, including Medicaid, which is federally funded. If you inadvertently employ an excluded individual, your claims to government programs that were submitted while the excluded employee was employed are subject to recoupment, fines, and penalties. There is a website to check if your employees are excluded; check it annually to ensure compliance with these regulations.
- The Government Can Pursue A Criminal Fraud Claim Even If The Provider Does Not Bill A Government Health Benefits Program. Many providers believe that they are immune from government scrutiny if they do not bill government health benefit programs. However, even where there is no government payor, the Federal Government may nonetheless pursue an action for health care fraud if the claims were made to a private healthcare benefit company. Further, the Government can bring actions under other theories, such as wire fraud and mail fraud. These actions are not as common as health care fraud, but they do exist, and the government will prosecute them vigorously if disclosed to them.
- Exercise Caution In Your Referral Relationships. Both Federal and State law criminalize the exchange of “anything of value” for a referral for a health care service, especially those for government program beneficiaries. The Federal and State Government can, and will, bring False Claims Act and MAPIL actions for kickbacks violations even where the practitioner was otherwise in compliance.
- Keep Complete Records. Often overpayment determinations are based on the lack of proper documentation in the medical records produced to the government. Not only is it necessary to keep complete medical records, it is also important to produce all relevant records for a service when responding to a government request for records or an audit. Many times the record for the date of service does not contain all the information that supports the service provided—there may be a record of a prior date of service or test/X-ray that confirms the medical necessity of the service. Providing complete documentation of the actual provision of the service and the medical necessity therefore at the front end saves time and money on the back end. More importantly, the sooner you can show investigators that your practice is compliant, the more confidence they will have in you going forward, and are more likely to give you the benefit of the doubt on compliance issues.
- Demonstrate Knowledge of Compliance Procedures. When faced with a provider who has wrongly billed for certain claims, the government bases many of its enforcement decisions on whether the improper billing was an error or oversight. If the provider has documentation of policies regarding compliance, the government will take this into consideration if it is looking at recouping an overpayment.
- Get In Front of the Investigation. It is very important as a provider to interface with the government agents and attorneys during any investigation. A lot of time there can be a valid reason that the provider has a statistically high billing of a certain procedure—especially if the provider specializes in pediatric dentistry or something similar—because the government may not investigate the background of the provider or the type of practice the provider engages in before launching an investigation. Further, whistleblower complaints often are based on scant facts and can be summarily dismissed. The sooner that you can get in front of the investigators regarding their claims, the easier it will be to defend the case.
- Seek Compliance Advice Where Necessary. A lawyer’s practice is full of clients who failed to seek advice from a competent source when faced with a billing or overpayment issue. An experienced healthcare lawyer is always the best source of information regarding government compliance. If you seek guidance from a government representative or a representative of a Managed Care Organization regarding a certain practice or procedure, memorialize their advice in an email or letter to that individual.
As with everything else, when it comes to government investigations, an ounce of prevention is worth a pound of cure. Compliance can be time-consuming and sometimes costly, but the cost of none-compliance can be astronomical.
Catherine M. Maraist is a partner in the Baton Rouge office of Breazeale, Sachse & Wilson, L.L.P. She focuses her practice on white collar civil and criminal defense and healthcare. Catherine has extensive experience in matters involving federal criminal law, federal civil law and procedure, civil and criminal health care fraud, appellate advocacy, trial advocacy, and professional responsibility. Catherine is a writer and lecturer in various areas of federal civil and criminal law, including health care fraud and compliance. Catherine has also served as an instructor in criminal and civil trial advocacy and appellate advocacy programs at LSU Law School and at the United States Department of Justice’s National Advocacy Center.