Legal Aspects of Healthcare Ch. 14
Terms in this set (44)
Define Fraud and Abuse
A false misrepresentation of fact that is relied on by someone else to the detriment of that person and is a departure from reasonable use.
What forms does fraud or abuse come in?
Words, conduct or documentation.
What does Fruad and Abuse mean in the healthcare context?
The efforts of a healthcare provider or organization to misrepresent facts to a government entity or third party payer so that the misrepresented "facts" appear as legal and customary in the industry and results in some form of payment or benefit to the provider or organization.
What is a Relator?
A person (private platintiff) who brings a lawsuit against an organization or provider under the False Claims Act on behaf of the U.S. government. (A whistle-blower)
What is a "whistle-blower"?
Usually it is a currently or former employee of a healthcare provider or organization who has learned of fraud and abuse and wishes to expose the activity. (Another name for a relator)
What is Upcoding?
Submitting a bill for a higher level of reimbursement than actually rendered in order to receive a higher reimbursement.
What is Unbundling?
Submitting separate bills for each component of a procedure instead of using the proper procedural code for that procedure.
What is the outcome from Unbundling?
It results in a higher reimbursement rate
What is a Stark violation?
Form of healthcare fraud and abuse that includes healthcare providers referring a patient to a facility in which the provider (or the provider's family member) has a financial interest.
How many Stark violation statutes are there?
There are two (2) Stark violations statutes
- Stark I
- Stark II
what is a Kickback violation?
Form of healthcare fraud and abuse that includes healthcare providers receiving compensation from another provider for referrals of patients to the second provider.
Example of Kickback Violation fraud and abuse...
Provider Bob pays Provider Ann for any referrals Provider Ann sends to provider Bob. Also the Novartis Pharmaceutical case in which Novartis paid pharmacists to recommend their drug.
What are some examples of billing fraud?
- Billing for procedures not medically necessary
- Double billing for a service rendered
- Billing a non-covered service as a covered service in order to get payment.
False Claims Act
Explain the False Claims Act
(FCA) Originally created to prosecute people and organizations who supplied the Union with inferior products or cheated the government outright during the Civil War.
Now the FCA has a new role in that it is used to protect the governent against those who charge for services not rendered and is often used in the Medicare and Medicaid context.
Explain Qui Tam actions.
Allows private plaintiffs (relators / whistle blowers) to sue on behalf of the US government and receive a portion of the recovered funds if successful.
Explain ANTI-KICKBACK statutes.
Prohibits the offer or solicitations of remuneration, including kickbacks and rebates, in exchange for referrals of Medicare-payable services.
What are the laws for physician self-referral prohibitions for Stark I? (clinical lab)
Physicians are barred from referring Medicare patients to a clinical lab in which the physician (or his immediate family member) possiss a financial interest.
What are the laws for physican sel-referral prohibitions for Stark II? (service)
Physicians are barred from referring Medicare patients to any healthcare institution or service in which the physician (or his immediate family member) possess a financial interest.
- This could be a durable medical equipment provider (DME); OT; PT; hospital orthotics; radiology; and more.
What is Mail and Wire fraud?
Using the U.S. Postal system or commercial wire services for the avancement of a scheme relating to fraud. i.e. Mailing fraudulent bills to Medicare.
What do the Mail and Wire fraud statutes do?
Prohibit use of the US Mail or commercial wire services for fraud or scheme relating to fraud.
What are the penalties for violating Mail & Wire Fraud Statutes?
It is a Felony: If convicted, punishable by a fine of $1000, a five-year prison sentence, or both.
What is the Permissive and Mandatory Exclusion Statute?
It allows healthcare providers/organizations convicted of F & A to be excluded from participating in the Medicare program as well as all other federally financed healthcare programs.
Laws regarding Fraud & Abuse
- FCA (False Claims Act)
- Anti-Kickback Statutes
- Qui Tam Actions (whistle-blower/ relator)
- Stark I violations statute (clinical referrals)
- Stark II violations statute (services referrals)
- Mail & Wire fraud statutes (penalty $1000 or 5 yrs or both)
- Permissive & Mandatory Exclusion statute (5 yrs to perm =felony; upto 1 yr. = misdemeanor)
How long is the exclusion in effect for Permissive & Mandatory exclusion statute?
- felony convictions = From 5 years to permanent exclusion
- Misdemeanor penalty = up to 1 yr. exclusion
What are 4 health-care fraud and abuse areas which bring heavy penalties under HIPAA?
- PATTERNS of filing claims for medically uncessessary treatments
- Transferring payments to a Medicare patient that might influence the beneficiary to seek treatment with that doctor / provider (kickback)
- Submitting a claim when the provider has been excluded from Medicare & Medicaid programs while retaining ownership/controlling interest in a facility that still participates in Medicare/ Medicaid program.
Fraud Enforcement Programs
1. Fraud and Abuse Control Program
2. Medicare Integrity Program
3. Beneficiary Incentive program
4. Health-care Fraud & Abuse Data Collection program
Fraud Abuse Control Program (FACP)
operated jointly by the Dept. of Justice and the Office of Inspector General (OIG) to control health-care fraud and abuse and conduct investigations relating to the delivery of health-care services.
Medicare Integrity Program
directs the Dept. of Health and Human Services to enter into agreements with private companies to carry out fraud and abuse protections
Beneficiary Incentive Program
encourages Medicare beneficiaries to report suspected cases of fraud and abuse.
Health-Care Fraud and Abuse Data Collection Program
designed to create a national health-care fraud and abuse database in coordination with the National Practitioner Data Bank
What is the OIG?
Office of Inspector General.
- Authorized to conduct civil, administrative, and criminal investigations of fraud associated with the Medicare and Medicaid programs
Who is the FBI? How may they be involved with fraud & abuse claims?
Federal Bureau of Investigation
- They possess authority that extends beyond the jurisdiction of a particular governmental program.
- They investigate due to the efforts of whistle-blower acting pursuant to the False Claims Act.
How long can a healthcare fraud investigation take?
- By the time the OIG shows up, they already have the answers to what is going on in your organization.
What should an HIM pr. do if confronted with a search warrant by the OIG or the FBI?
- Contact your facility's legal counse immediately.
- Then, cooperate w/ the warrant by retrieving records, but do not answer any questions other than your name and title at the organization until your organization's legal counsel arrives to assist you.
- keep your mouth closed.... anything you say will be used against you and your organization.
Who will the law enforcement agency work with to prosecute the healthcare provider?
Local U.S. Attorney's office.
To avoid going to trial, what can a healthcare provider do? (relates to the previous question)
Settle out of court on a financial settlement created by the government agency.
What is COMPLIANCE?
- The efforts to establish a culture that promotes prevention, detection and resolution of instances of conduct that do not conform to applicable local, state and federal laws/regulations.
What does a COMPLIANCE PROGRAM provide for a healthcare provider?
- An effective internal control that promotes adherence for compliance to the local, state and federal laws and regulations as well as those compliance issues required by local/state/federal and private health plans (insurance co's or payers)
Describe the ETHICS-BASED APPROACH to establishing a compliance program
Healthcare org. decides to follow and abide by local, state, federal rules and regs. because it is the RIGHT THING TO DO... or because cost-benefit analysis reveals it's a SOUND BUSINESS DECISION.
Describe the MINIMUM LEGAL REQUIREMENTS Approach to establishing a compliance program.
- H.care org conforms to local, state, federal laws/regs because of:
- Fear of punishment & of getting caught
- Because they have to
- Their plan does just enough to comply w/ the laws... no more.
What is the benefit of implementing an effective compliance program?
- Reduces exposure to civil damages & penalties; criminal sanctions & administrative remedies.
- Greater benefits through the ability to assess and improve the efficiency, effectiveness and quality of patient services.
List (and know) the seven compliance program guidelines
1. Written standards of conduct & Policy & Procedure
2. Designation of a chief compliance Officer to oversee the program
3. Regular, effective education & training programs for all affected employees.
4. Process for receiving complaints of possible violations
5. Development of a system to respond to allegations or enforcing disciplinary action
6. Conduct audits and evaluation techniques to monitor compliance
7. Investigation - corrective action of identified problems
List & know the Seven U.S. Sentencing Guidlelines for Organizations.
1. Establish compliance standards & procedures for all employees
2. Assign specific individual w/ overall responsibility for overseening compliance with set 1 .
3. Use due diligence not to dlegate substantial discretionary authority to those who may have propensity to engage in illegal activities.
4. Take steps to communicate effectively to employees and agents the standards & procedures.
5. Take reasonable steps to ensure compliance with the standards.
6. Use consistent enforcement of the standards to include disciplinary action
7. If an offense is detected, take all reasonable steps to respond & prevent further offenses.
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