They Are Coming for You!

I am sure you’ve heard stories of questionable billing practices and other activities at O&P facilities that do not fully comply with the “letter of the law.” I mean come on, some these requirements are crazy, right? Whether you agree with them or not, if they are codified, you need to comply. Something as simple as waiving a patient responsibility portion without the proper paper trail can land you in big trouble. Read your contracts; in many cases, payers can reclaim everything they paid you on a claim if you don’t collect the patient portion and you can’t prove you tried to get it. We throw around the words “fraud” and “abuse,” but do you know what they mean? Fraud is defined as an intentional deception or misrepresentation made with the knowledge that it could result in unauthorized benefits or payments. (Have you ever billed for two check sockets when you only made one?). These are some key aspects of fraud: It involves deliberate deception or false representation of facts. There is intent to gain an unfair or dishonest advantage. It often results in financial or personal benefits obtained illegally. It can lead to criminal charges and severe penalties. Examples of healthcare fraud include: Billing for services not actually provided Falsifying a patient’s diagnosis to justify unnecessary procedures Altering claim forms to obtain higher payments Using another person’s Medicare card to obtain medical care Abuse refers to practices that are inconsistent with sound fiscal, business, or medical practices, resulting in unnecessary costs or improper payments. These are some key aspects of abuse: It may be intentional or unintentional. It involves misuse or overuse of resources or systems. It results in unnecessary costs or improper payments. It does not necessarily involve deliberate deception. It typically leads to administrative actions rather than criminal charges. Examples of healthcare abuse include: Excessive charges for services or supplies Providing medically unnecessary services Breaching Medicare participation agreements Improper billing practices The main difference is that fraud involves intentional deception for gain, while abuse involves improper practices that may be unintentional but still result in unnecessary costs. By now you have certainly heard of the expanded allowance for advanced prosthetics for K2 ambulators. I am not here to talk about that. But I think it is interesting that on August 1 the Department of Justice launched a three-year pilot program that Deputy Attorney General Lisa Monaco said is “ doubling down on a proven strategy to ferret out criminal activity that might otherwise go unreported .” Under the three-year pilot program, people who turn over original information or analysis relating to a financial crime, bribery or healthcare fraud could be eligible for an award of up to 30 percent of any assets forfeited by a company as a result of that information. The program will apply to several types of misconduct where officials are looking to step up enforcement to include healthcare fraud involving private companies. Under the whistleblower program, tipsters that alert their employers to misconduct in addition to reporting to the Justice Department could receive a higher award. At the same time, companies that disclose a whistleblower report they received internally within 120 days and before being contacted by federal prosecutors will be eligible for leniency under a corporate voluntary disclosure program. “With very few exceptions, you need to be first in the door,” Monaco said. “And when everyone needs to be first in the door, no one wants to be second. Suddenly everyone is racing up the front steps, all hoping they’re the first to knock.” Back in April, the DOJ announced a program aimed at executives in which prosecutors will enter into a “non-prosecution agreement” with corporate whistleblowers who meet certain criteria. To be eligible, an individual must voluntarily provide original information, cooperate with prosecutors, and agree to give up any profits they may have derived from the reported misconduct. The program covers tips related to a range of misconduct, including financial and healthcare fraud, money laundering, and corporate bribery. The policy is designed to put pressure on companies to disclose misconduct before their own employees do, said Nicole Argentieri, the head of the Justice Department’s criminal division. “The department is upping the ante…by increasing the incentives for others to come forward,” Argentieri said. “Call us before we call you.” CEOs and CFOs won’t be eligible for the new immunity policy, according to the Justice Department. The policy also excludes individuals who prosecutors determine are the organizer or leader of the misconduct being reported. The move by the Justice Department’s criminal division is part of changes to the agency’s corporate enforcement policies in recent years. In 2022, Monaco tasked the various components of the Justice Department that deal with corporate crime, including its US attorneys’ offices, with developing programs that offer companies rewards for self-disclosing conduct. So, be aware. Compliance is not something to take lightly.

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