Private payers and Medicare expand anti-fraud coordination

HIPAA equips commercial carriers with new tools to attack health care fraud and abuse

Private third-party payers may not wield the hammer known as the False Claims Act, but it’s important to note that the government now is utilizing publicly available physician data and sharing that information with private payers, says Joseph Russo, president of HP3 Healthcare Concepts in Bethlehem, PA. "Third-party private payers and the government are constantly sharing information," he notes. "There is a lot of data sharing taking place, and compliance officers must be aware of that."

According to Russo, it is common to see an almost identical letter from private payers in the form of an audit letter follow in the wake of a Medicare review of physicians and other health care providers.

Russo points out that current statutes make it a federal crime for any health care provider to hold on to money they reasonably believe does not belong to them where federal health care programs are concerned. However, he says it is a little-known fact that under the Health Insurance Portability and Accountability Act (HIPAA), similar provisions now are applicable to private payers.

"Suddenly, we have an actual crime regarding the submission of a false claim to a private commercial third-party payer," says Russo. "I think it is very relevant."

When Congress appropriated money for HIPAA, its aim was to facilitate better coordination in the fraud and abuse arena, says Alice Gosfield, president of Gosfield & Associates in Philadelphia. "HIPAA made it perfectly clear that commercial health plans are supposed to be contributors to increased coordination across the health care industry," she asserts.

Gosfield also notes that commercial carriers now report to the National Practitioner Data Bank, not with practitioner data but with fraud and abuse data. The new law also made commercial claims punishable under the civil money penalties provisions. "Most states have insurance fraud codes that make false claims fraud," she says. Those fraud codes are not the same as the False Claims Act, but they still carry heavy penalties, she points out.

"Many providers have thought that they only have to worry about Medicare, which is quite wrong," Gosfield says. "If you put a stamp on it, talk about it on the telephone, or send it over a fax, they can get you for wire or mail fraud."

Mark Pasten, president of Health Ethics Trust in Alexandria, VA, says commercial plans increasingly are taking a stance that requires the kind of documentation that federal payment programs have required in the past. "That is clearly a developing trend," he reports.

According to Pasten, the age-old controversy from the provider side has been whether to apply the same documentation standards to private payers that are applied to Medicare, Medicaid, and other federal programs such as TRICARE. "Many times, people argue that private payers do not require that, so why would we want that standard in place," he says.

The counter argument, he points out, is that providers have not had much luck getting one standard in place. "If we have several different standards in place, we probably will wind up not following any of them very well," he explains. "Since we know we have to follow the Medicare standard, let’s adopt one uniform standard."

Pasten says that while health plans may not say it in so many words, many of them recognize that the Medicare documentation standards are fairly sound and are, in turn, formally adopting them and incorporating them in contracts. Many providers may complain about this, but he maintains that common documentation requirements actually may work to their advantage.

For example, behavioral health providers must ensure that when they visit a facility they actually have provided individual services and are not billing services provided to a group as individual therapy. "All those standards of documentation and accuracy should carry over without change," he argues.

Pasten says the greatest threat arises when providers are indifferent about creating documentation according to who the payer is. "If you are trying to observe a weaker standard and a stronger standard, you will probably fail to observe both of them," he explains. "The virtue of a single standard for documentation is that it is actually possible to learn it and follow it."