For any health care provider, the fear of being accused of healthcare fraud and investigated by the government is a real and present threat.
Many things can trigger an investigation:
- Billing for work that was never performed or two times too many.
- Performing medically unnecessary procedures.
- Changing procedure codes to get higher reimbursement rates.
- Receiving kickbacks from pharmaceutical companies.
- Failing to report how much money is brought in accurately.
John LeBlanc of Manatt spoke with me about the government’s enforcement role and what health care providers can do to protect themselves.
According to LeBlanc, the good news is that enforcement has become more efficient and effective. “It’s imperative for health care providers to know what the government is looking for so they don’t get caught up in this.”
The Biden administration has increased its efforts. While there were fewer federal prosecutions under President Trump than under President Obama, LeBlanc noted that it is because “the Obama administration was so aggressive in healthcare fraud enforcement, it affected the numbers.”
The deterrent effect is also essential. LeBlanc said that when government agents come into a facility to investigate, there’s usually at least one person who feels compelled to cooperate. That means others are listening.
LeBlanc said that the government is “very focused on identifying fraudsters at all levels of the supply chain.” But, he said, “It doesn’t matter whether you’re a provider or a supplier. Being compliant will reduce your exposure” to an investigation.
According to LeBlanc, one of the most significant issues is allowing employees who are not licensed doctors to make medical decisions. The government has brought many cases against companies where unlicensed people are ordering tests and procedures that they are not qualified to authorize.
Another issue is where unlicensed staff report continued health in terminally ill patients. “A person may have six months left to live, but the medical report says they are in good health,” said LeBlanc, who added that he has seen this type of behavior increase recently.
The government is also focusing on the supply chain. While you might think that receiving kickbacks wouldn’t be illegal if they went to someone else, LeBlanc said, “the fact of the matter is, if something illegal happened in your facility or office and it affected revenue, then you can still be held accountable.” For example, a hospital could receive kickbacks from a radiology company, but the hospital is responsible for ensuring that everything is done correctly.
LeBlanc noted that you are typically only made aware of an investigation if it results in charges being filed or administrative action by HHS.
According to LeBlanc, some doctors are motivated by greed and need to be reminded that the patient will likely receive substandard care if a doctor receives a bribe.
LeBlanc also noted that Medicare and Medicaid fraud are not victimless crimes because taxpayers’ dollars are used for reimbursement.
He said, “The government can be very aggressive towards those who defraud Medicare and Medicaid.”
The goal of the government is to send a message about how they plan on enforcing fraud issues. For example, LeBlanc said, “Prosecution sends a stronger signal than forfeiture.”
LeBlanc also noted that the government targets those providers who have been defrauding Medicare and Medicaid for at least five years or more. He said that the government would try to identify past behavior patterns, even if the person has never been caught. LeBlanc said that having a compliance program can help to mitigate risk.