Carelessness has a price in abuse investigations

By Elizabeth E. Hogue, Esq., Burtonsville, MD

Many providers generally are familiar with prohibitions against fraud and abuse in the Medicare and Medicaid programs, including Medicaid waiver programs. Fraud involving billing for services that were never actually provided may be especially familiar.

But there are at least two common misconceptions about fraud and abuse.

First, government enforcers must prove intent to show that providers engaged in fraud, but many providers do not understand what the government can use to show intent. Most providers certainly understand that if they submit claims for care that was never provided to patients, they had intent and engaged in fraud. But providers also must understand court decisions have found that if enforcers can prove that providers knew or should have known of a pattern of fraudulent conduct, enforcers may conclude they had intent.

Other court decisions say that when providers show reckless disregard for a pattern of fraudulent conduct, regulators can show intent necessary to prove fraud.

When providers grasp these crucial standards, it is clear they must become vigilant to prevent patterns of fraud and abuse. This is necessary to prevent government enforcers from concluding that they had intent necessary to prove fraud and/or abuse.

Many providers also do not understand that every health care practitioner, regardless of position, is personally responsible for fraud and abuse compliance. It is extremely tempting to think that fraud and abuse compliance is management's responsibility or the exclusive job of the administrator or the organization's compliance officer under a Medicare/Medicaid fraud and abuse compliance program.

But the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, is quite clear that every provider has personal, individual responsibility for fraud and abuse compliance. The OIG has taken this position because the OIG realizes that the problem of fraud and abuse will never be resolved until every provider takes individual responsibility for it.

This point is illustrated by fraud charges brought against a home health agency in Florida. Enforcers took action against both upper management and a number of individual staff nurses allegedly involved in billing for visits that they never made, among other possible fraudulent practices.

When providers understand these two basic points, they are well along the road to active participation in fraud and abuse compliance efforts.

Providers must remember that fraud and abuse compliance now is a permanent part of the health care landscape across the nation.

Compliance is not a fad that will blow over or disappear in a few months. Providers must be prepared to actively work to prevent or correct fraud and abuse for as long as they work in the health care industry.

(More information about the fraud and abuse implications of consulting arrangements with referring physicians is available in Medicare/Medicaid Fraud and Abuse: A Practical Guide for Providers. Send a check for $30 — including shipping and handling — to Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866.)