Physicians targeted for DME, home health fraud

Feds could impose fines of $10,000 per claim or triple damages and prosecute

It’s no secret that the embattled home health and durable medical equipment industries remain at the top of the government’s health fraud hit list. But a new special fraud alert, just released by the Office of the Inspector General, suggests that physicians soon could find themselves caught in the crossfire.

The alert concerns the improper use of certifications of medical necessity, which physicians must sign before Medicare will pay for home health care or a piece of durable medical equipment (DME). In many cases, the OIG acknowledges, it’s the HHA or DME supplier who’s committing the real fraud and reaping the financial rewards — but if your name’s on the certification, you could nevertheless find yourself on the business end of a False Claims Act lawsuit.

"If they decide to audit you and the service or device was not medically necessary, you don’t have much of a defense because your signature is right there on the paper," says Anders Gilberg, a government affairs representative with the Medical Group Management Association in Washington, DC.

Gilberg adds that improper certifications likely will remain a hot topic with the OIG for some time to come. That’s because recent federal audits, conducted both by OIG and the Health Care Financing Administration, have suggested that Medicare may be losing literally billions of dollars annually because of poor documentation and what the government considers physicians’ "laxity" in approving medically unnecessary DME and home health care for beneficiaries.

"The problem is that too often, it’s a case of the tail wagging the dog," says Sandra Anthony, with the anti-fraud unit at Columbia, SC-based Palmetto Government Benefits Administration, one of the nation’s four DME regional carriers. Instead of physicians initiating the discussion about whether something is medically necessary, she says, it’s often the DME suppliers who drive the debate. "Because of the competition that’s out there, the DME suppliers are getting to the patients directly and telling them, We can get this piece of equipment for you, but we need to have your doctor’s certification or prescription.’ Then the family or the beneficiary puts the heat on the physician."

Ben St. John, an OIG spokesman, agrees that in cases where the physician doesn’t stand to gain financially, signing certifications is often done as a courtesy to the beneficiaries, their family, or to the provider of services. "Some take the attitude that a beneficiary may not meet the letter of the law, but close enough."

The fraud alert makes OIG’s response to that practice very clear: If you sign certifications without ensuring that all the criteria for medical necessity are met, you could find yourself in very hot water. That could mean fines of up to $10,000 per false claim plus triple damages, criminal prosecution, and a host of administrative sanctions. And if the government suspects a DME company was paying you for your signature, you could face penalties under the Anti-Kickback Statute as well.

"Physicians need to be reminded that if they put their name on a certification of medical necessity, they’re going to be facing a higher level of scrutiny," Gilberg says. "This is something the OIG is definitely going to be focusing on. It’s not going away."

Specifically, the OIG stresses that before ordering home health care for a Medicare patient, physicians must:

- certify that the patient is homebound, under physician care, and in need of intermittent skilled nursing care, physical therapy, or speech therapy;

- establish and review a plan of care for the patient.

In ordering durable medical equipment, physicians must submit to the supplier a written order or prescription that is dated and signed and lists the patient’s name, address, diagnosis, the item needed, the length of time it is expected to be needed, and the start date, if appropriate. DME suppliers must maintain the physician’s original written order or prescription in their files.