2016 Health and Human Services Office of Inspector General Work Plan

In its 2016 Work Plan, the Health and Human Services Office of Inspector General lists their health care fraud investigation roster.  The list includes the following Usual Suspects:

 • Controlled and Noncontrolled prescription drugs
 • Home Health Agencies, Personal Care, and Home and Community Based Services
 • Ambulance Transportation
 • Durable Medical Equipment
 • Diagnostic Radiology and Laboratory Testing

The OIG stated in their notations that they will be looking more into both provider AND beneficiary participation in health care fraud schemes and threaten those involved in such schemes with heavy fines, jail time, and exclusion from participation in federally funded health care programs. 

The HHS OIG plans to work with the FBI, US Attorney’s office, and State enforcement agencies such as Medicaid Fraud Control Unit (MFCU).

HHS OIG has lauded themselves for their leadership in the Healthcare Fraud Prevention Partnership (HFPP), their association with the National Health Care Anti-Fraud Association (NHCAA), and their partnership with the Department of Justice in Healthcare Enforcement Action Teams (HEAT). 

Who doesn’t love a good acronym. 

What AC/DC Song Titles Can Teach Nurses About Texas Board of Nursing Investigations

AC/DC. A classic band. I may be giving my age away here, but it is one of the first bands I remember listening to with my older sister and her boyfriend (now husband). A band that I regret not seeing live since Brian Johnson is no longer with the band. (Other bands that I wish I would have seen live include The Eagles, The Who, Def Leppard, Led Zeppelin, and maybe Sir Mick and the guys of the Rolling Stones, but that's a post for a later date.)

In my opinion, AC/DC had some creative names for songs. So, for this post, I am going to use those song titles to briefly describe what happens when a nurse is investigated for violating a section of the Nursing Practice Act. (See also Board of Nursing Provisions under the Texas Administrative Code.)

The first thing that occurs in a Board of Nursing Investigation is the Board has to receive a complaint or a notice from another licensing board stating that a nurse was  a "Problem Child" or for "Breaking the Rules", or was involved in an incident that may or may not have been his/her own doing. For example, a nurse may have had a disagreement with his/her supervisor, and as a retaliatory action, the supervisor reports the nurse to the board for a minor infraction that normally would not be reported. Or, a nurse practitioner may have been reported to the NPDB for some reason, and the NPDB then reports to the Board of Nursing.

When the Board receives a complaint/notice, the matter is assigned an investigator and the investigator acts like he/she is on a "Rock 'N' Roll Train" and begins working the investigation. This involves gathering information from the reporting entity/individual and sending a formal notice to the nurse that is under investigation.

When the nurse receives the formal notice, she/he may be "Thunderstruck" and may think that she/he is on the "Highway to Hell." It is normal to be shocked by the notice; however, the absolute worst thing a nurse can do is ignore the formal notice. Ignoring the notice is akin to signaling for "Hells Bells" to ring because the notice gives the nurse an opportunity to respond a tell her/his side of the story within a certain time period. At this point, a nurse can hire an attorney to represent them in the investigation, or the nurse can "Shoot to Thrill" and forgo legal representation. Either option is available to the nurse. (We are going to assume no legal representation has been hired for this post.)

After a response is submitted to the Board, the investigator assigned to the case reviews the response and continues the investigation. After the investigator completes the investigation, an agreed order with findings from the investigation is sent to the nurse for signature. At this point, a nurse may think that he/she is "Back in Business" and he/she signs the agreed order. However, this could be a big "Danger" and could jeopardize the nurse's employment resulting in the nurse being "Shot Down In Flames."

An agreed order from the Board of Nursing can contain various sanctions. Some of the most common sanctions include supervision for a period of time, a certain number of continuing medical education courses, and because "Moneytalks", a fine. (Moneytalks is my favorite AC/DC song by the way.)

If the nurse does not agree with the agreed order because he/she feels the Board of Nursing has "Walk(ed) All Over You", an informal conference may be requested. If the Board of Nursing grants the request for an informal conference, a date is selected and the nurse sits down in front of a panel of individuals from the Board of Nursing and tells her/his side of the story again. The panel also asks the nurse questions during the informal conference. Unfortunately, an informal conference is not something the Board of Nursing always grants.

After the informal conference, the panel issues a decision. The decision may be a complete dismissal of all allegations, to which the nurse normally says, "Have a Drink On Me." Or, the panel may reduce the allegations and sanctions but does not completely dismiss them and a new agreed order is drafted. Or the panel may keep things the same as the initial agreed order.

If the nurse still believes that the Board of Nursing does not have it correct and says "You Ain't Got a Hold On Me," the nurse does not sign the agreed order issued after the informal conference. At this point, the nurse is formally charged by the Board of Nursing and the matter is handed to the State Office of Administrative Hearings. The nurse will then have to undergo a formal hearing over the charges. At the end of the hearing, SOAH issues its order.

As stated above, this is a brief explanation of what happens when a nurse is investigated by the Board of Nursing. I hope this has been somewhat educational. So, "For Those About to Rock (We Salute You)." Until next time, which I doubt I will be "Back in Black." (Had to find a way to work that song in.)

What The Police Can Teach Providers About Audits

In 1982, Sting wrote a song that can best be described as.....stalkerish. The song went on to be a hit and is widely considered one of the greatest songs ever. Sting has stated "I think the song is very, very sinister and ugly and people have actually misinterpreted it as being a gentle little love song, when it's quite the opposite." Source. When reading the lyrics for the first verse, I agree with Sting

"Every breath you take and every move you make
Every bond you break, every step you take, I'll be watching you
Every single day and every word you say
Every game you play, every night you stay, I'll be watching you"

Courtesy of MetroLyrics.

So, how does this apply to audits? Very simply. Sing it with me, "Every claim you submit and every patient record you provide, CMS or private insurance companies will be reviewing them." I know it isn't as catchy as hearing Sting's wonderful voice sing those creepy lyrics, but you get the point. By the way, these reviews can be done independently(you agreed to that in your provider agreement), or can be done as part of a records request.

In an independent review, Medicare or private insurance companies review claims and determine if the submission of certain CPT codes are higher than that of other similar providers across the nation. If yes, an overpayment letter may be issued.

In a records request, CMS(actually one of its MANY contractors) or private insurance companies send a letter requesting certain patient records over a certain time period. If the documentation does not support the CPT code, the claim will be retroactively denied and an overpayment letter will be issued.

In the case of CMS, after all the submitted records will be reviewed, the number of claims denied from the requested period will then be extrapolated over the total universe of claims. Normally, the result of this extrapolation is a big, (insert word of choice) overpayment. For example, in one case, an actual overpayment amount of around $160,000 was extrapolated to over $6,000,000.

To fight this overpayment and extrapolated amount, the government has provided a 5 stage appeal process. In our experience, this extrapolated amount is extremely difficult to set aside, but it can be done.

So, in summation, when you submit claims, remember these claims will be reviewed not just at the initial payment stage, but also later on. Because....."CMS or private insurance companies will be reviewing them."

Wage and Hour Issues for the Small Provider

No matter how small an employer your healthcare company may be, you are still required to follow the federal and state overtime laws.  While new legislation is on Capitol Hill regarding exempt and non-exempt employees, the current rules still apply for the payment of employees.  Lately, we have had several clients with wage suits brought by employees. 

Wage and hour suits generally fall under federal laws and statutes, and the calculation for wages owed to an employee who is successful in winning a claim against the employer includes reasonable and necessary attorney’s fees.

Therefore, the employee you owe $1350 to in overtime wages, or regular wages will have an attorney’s fee submission to the court in the tens of thousands of dollars.  The attorney’s fees are mandatory if the employee prevails on the wage issue and has an attorney assist him/her with the case. 

Please keep accurate and complete track of your employee’s time on the job, including windshield time between appointments, and overtime hours.   Your company records will be required to refute a wage and hour claim by an employee.  Often, we have little to defend the employer’s position, even if the employee has padded their claim. 

The Supported Decision Making Agreement Act has passed the Texas Legislature

In Information Letter No. 16-13, DADS explains the new Supported Decision-Making Agreement Act.  The Act was passed in last year’s regular session and was put in place to assist adults with disabilities who need assistance with understanding choices to make their own decision an option that is less restrictive than formal guardianship.

The Letter defines disability and goes on to explain the act’s parameters for assisting such disabled adults with decision making.  Rather than going through the legal process to have a guardian appointed by a Judge, the Act allows such a disabled adult to make his/her own decisions with a “supporter.”  This avoids the time and costs of the legal processes for guardianship, and allows the disabled adult to be responsible for such decisions. 

Along with the Information Letter is a step by step delineation of how the process works.  If you have a client that might qualify for such a “supporter” please contact DADS at 512-438-3011 or find additional information on the DADS website .

EXTRAPOLATING QUI TAM LIABILITY

Statistical sampling has been generally limited to calculating damages in FCA cases.  Courts have recognized that using extrapolation to establish damages when liability has been proven is different than using extrapolation to establish liability.

This changed in 2014, when the U.S. District Court for the Eastern District of Tennessee opened the door for plaintiffs to argue that sampling should be used not only to calculate damages but also for establishing the underlying FCA liability. U.S. ex rel. Martin v. Life Care Ctrs., 2014 WL 10937088 (E.D. Tenn. Sept. 29, 2014).

On Sept. 29, 2015, the Fourth Circuit agreed to hear an interlocutory appeal in U.S. ex rel. Michaels et al. v. Agape Sr. Cmty., Inc., No. 15-238 (12-cv- 03466-JFA) (4th Cir. Sept. 29, 2015), on the issue of whether extrapolation can be used to prove both damages and liability under the False Claims Act (FCA), 31 USCA § 3729 et seq.

By agreeing to hear the Agape appeal, the Fourth Circuit will be the first appellate court to rule on this controversial issue.

Thank You and Welcome

Greetings!

Thank you for taking the time to stop by and review our blog. This blog is going to contain information about health law issues that most healthcare providers in the U.S. face. A bit of background, this website is run by an attorney licensed in the State of Texas. All information contain in this blog is purely informational. In other words, I'll provide information, but I can't provide advice. SORRY!  Hope you enjoy!