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Anthony C. Vitale
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One of the Top Medicare Defense Attorney's in the United States.
One of the Top Medicare Defense Attorney's in the United States.

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In mid-May, law enforcement authorities announced the arrest of 90 people, including 16 physicians, who allegedly took part in Medicare fraud schemes across the country at an estimated cost to taxpayers of $260 million.

David O’Neil, acting assistant attorney general, said the alleged crimes “represent the face of health care fraud today.”

Billing for services never rendered, providing medical equipment that was not needed and paying kickbacks to recruiters to obtain Medicare billing numbers from unsuspecting patients are just some of the ways these schemes are alleged to have taken place.

Although relatively big, the most recent crackdown is just a drop in the bucket when it comes to the government’s efforts to catch those involved in health care fraud. In fact, since 2007 there have been more than 1,700 people charged with Medicare fraud, collectively billing more than $5.5 billion.

Whether you are a solo practitioner or working within a large health care system, no one is immune from becoming the target of an investigation. That’s why having a compliance program in place, and a compliance officer to ensure that all regulations are followed, is imperative.

Because health care law is a field that’s constantly changing, it’s often not easy to keep abreast of all of the rules and regulations. This is even truer today with the implementation of the Affordable Care Act, better known as “Obamacare.” The Act has added tough new rules and sentencing for those convicted of health care fraud and calls for enhanced screening of providers.

As a result, there are several things you can do to make sure you remain in compliance:

• Hire an experienced health care fraud defense firm to review your business practice.
• Create a compliance program that describes how the practice will submit claims and handle administrative functions.
• Perform internal risk assessments relating to new enforcement areas.
• Audit internal records regularly to make sure that services are being properly billed and coded.
• Establish an anonymous employee hotline to report suspicious activity.
• Carefully review employee non-compliance complaints.
• Educate employees about procedures for preventing fraud and abuse and about new enforcement trends.
• Make sure your medical records are current as to the necessary information including procedure codes, place of service and type of service.

Health care providers must have a clear understanding of what is expected by Medicare, Medicaid and commercial insurers. It’s also imperative to be knowledgeable about their billing, coding and documentation rules and regulations, which can be found in the provider’s contract, handbook or by speaking directly with the payor.

There are several major federal fraud statutes and regulations designed to prevent health care fraud. They include:

The False Claims Act, which simply stated, prohibits the submission of knowingly false claims to collect federal money. Under this act, health care professionals and others can be liable for treble damages – plus civil penalties.

It’s important to note that under the qui tam provision of this act, private citizens can act as whistleblowers. If the government is successful in collecting money as a result of a whistleblower case, then the whistleblower is entitled to a share of the money.

The Anti-Kickback Statute is a criminal statute that prohibits the exchange, or the offer to exchange, anything of value in an effort to induce or reward the referral of federal health care program business.

The Physician Self-Referral Law is commonly known as the “Stark Law.” Essentially, it prohibits a physician from making referrals for certain designated services payable by Medicare to an entity with which the provider or an immediate family member has a financial interest unless an exception applies.

Exclusion Authorities refers to the fact that the Office of the Inspector General has the authority to exclude individuals and entities from federally funded health care programs and keeps a list of those who are excluded. There are many reasons for exclusions, including past convictions of fraud, financial misconduct, patient abuse or neglect and a number of felony convictions and other bases for exclusion from the OIG, which are permissive in nature.

Civil Monetary Penalties authorizes the imposition of substantial civil monetary penalties against an entity or individual that makes a false claim, provides false or misleading information that is expected to influence a decision to discharge a patient, offers remuneration to a beneficiary of a federal health care program that is likely to influence the receipt of reimbursable items or services, arranges for reimbursable services with an entity that is excluded from taking part in a federal health care program; solicits or receives remuneration for a referral of a federal health care program beneficiary or uses a payment intended for a federal health care program beneficiary for another use.

Ignorance is not a defense in the health care fraud environment. Even an honest mistake can cost you time, money and your reputation. If you become the target of an investigation, the first thing you should do is contact experienced and competent health care legal counsel. They can advise how to properly proceed.
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Defense Investigations—An Ounce of Prevention Just Might Keep You Out of Jail

July 11, 2014 by The Western PA Healthcare News Team

Anthony C. Vitale

Just about every day there’s at least one story published in a newspaper somewhere in the U.S. about healthcare fraud. It might be about an individual provider who has been arrested, a hospital that is under investigation, or an office employee in a healthcare setting who has been sentenced to jail for their role in defrauding Medicare, Medicaid or some other payor.

How do these cases come to the attention of investigators? And, what can a provider do once they become the target of an investigation? 

Investigations can be initiated in a number of ways: Disgruntled employees, ex-spouses who feel slighted, or a jealous competitor can serve as a whistleblower. Or, your practice might become the target of computer surveillance – i.e. a provider’s billing practices show up as an outlier for performing too many procedures or making more money than others. Some providers and suppliers that historically have had a greater risk of fraud also end up targets of increased scrutiny.

So, what do you do once you become aware that you or your practice has become the target of an investigation? 

One of the single most important decisions a healthcare provider or organization can make is to determine when to conduct a defense investigation.

A defense investigation is a confidential internal investigation conducted by counsel when there is a suspicion of a government investigation, government subpoena, employee hotline complaints, whistleblower allegations, aberrant data trends or direct allegations of fraud and abuse. Defense investigations apply not only to criminal matters but also to civil, administrative and licensure liability.

The purpose of a defense investigation is to reduce or eliminate criminal, civil, licensure or administrative liability for the organization’s management and employees.

The need, and in some instances the duty to investigate, stems from several sources: state law, OIG regulatory guidance, Sarbanes-Oxley Act, and federal and state civil False Claims acts.

A defense investigation consists of four distinct components:

The factual investigation: At this stage your legal counsel should be conducting a shadow investigation of the government or enforcement agency’s actions. This should include a complete investigation of the facts surrounding the allegations of fraud, abuse or regulatory noncompliance. Sometimes investigators identify a provider as a suspect and then attempt to build a case around them based on little more than suspicion. Other times a factual investigation can reveal inconsistencies or gaps in the investigator’s report that can prove favorable to the defense. 

The legal investigation: This will take place at the same time as the factual investigation. At this point it’s important to identify what laws, rules or policies are alleged to have been violated. The lifeblood of any investigation is evidence. If there isn’t enough evidence then an investigation can die on the vine. You want to bring in your own private investigator to conduct interviews and bring in billing and coding experts to crunch numbers. Whatever the issues demand, it’s imperative that you match the government’s resources.

Defense development: At this stage legal counsel develops defenses and explanations to the violations identified by the investigating agency and begins to create corrective action plans. A corrective action plan should include an analysis of the investigation’s findings, recommendations for corrective action, a timetable to implement the corrective action and the procedure for monitoring the effectiveness of the corrective action plan. Judgments must be made on how to present a case to the prosecutor and what you want to accomplish. The important thing to remember is that you can’t fight everything. You have to pick and choose your battles.

Defense case presentation to enforcement authorities: A defense attorney will meet with the prosecutor early on in an effort to protect your interests. This is why it’s imperative that a healthcare provider bring in counsel as soon as he or she suspects they have become the target of an investigation. 

The bottom line for anyone facing an investigation: The quicker you get a lawyer involved the better off you are.

Anthony C. Vitale is the president of the Health Law Offices of Anthony C. Vitale in Miami, Fla. The firm concentrates in criminal, civil, regulatory, Qui Tam/Whistleblower, administrative and licensure representation of healthcare providers.
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