Hospital Settles False Claims Act Allegations for $18.2 Million

BY HEALTH CAPITAL CONSULTANTS, LLC

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Hospital Settles False Claims Act Allegations for $18.2 Million


On December 2, 2021, the U.S. Department of Justice (DOJ) announced that it had entered into an $18.2 million settlement with Flower Mound Hospital, a 91-bed hospital located northwest of Dallas, to resolve claims that the hospital had violated the Stark Law, the Anti-Kickback Statute (AKS), and the False Claims Act (FCA) by making improper inducements to referring physicians. This Health Capital Topics article will review the facts underlying the settlement. (Read more…)

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Courts Examine Use of Statistical Sampling in False Claims Act Cases

Courts Examine Use of Statistical Sampling in False Claims Act Cases 

By Robert James Cimasi MHA CMP™
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The False Claims Act (FCA) continues to grow in strength as the federal government and relators increase their use of the law to recover billions of dollars from companies that violate the Act’s provisions. Developments in the application and interpretation of the FCA, particularly in regard to the issue of statistical sampling in proving damages, may significantly influence the regulatory risk to healthcare enterprises, in light of the significant volume of recoveries received by the government under this law for healthcare fraud and abuse violations.
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In recent months, interpretation of the FCA influenced the outcome of two prominent healthcare fraud and abuse cases: (1) U.S. ex rel. Michaels v. Agape Senior Community (Agape), originating in the U.S. District Court for the District of South Carolina and heard by the U.S. Court of Appeals for the 4th Circuit; and, (2) U.S. ex rel. Ruckh v. Genoa Healthcare Consulting, Inc. (Genoa), in the U.S. District Court for the Middle District of Florida. The cases, both of which explored the utilization of statistical sampling in proving damages under the FCA, leave unclear the standards associated with the admissibility of expert testimony in this context.
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Assessment
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This Health Capital Topics article summarizes the Agape and Genoa cases, and discusses the role that statistical sampling may play in future FCA actions. (Read more…)

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Conclusion

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SOAP[IER] eMRs [Beware the Alphabet Soup Switcher-Roo]

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Medical Records not a Reflection of Reality – Are Reality Itself

[By Dr. David Edward Marcinko; MBA, CMP™]

[By Hope Rachel Hetico; RN, MHA, CMP™]

Now more than ever, inadequately documented medical charts can mean civil and criminal liability to the sloppy and/or unwary practitioner.

Medical records were previously used to aid in the quality of medical care. Today, they are also the basis for payment for services, not as a record or reflection of the care that was actually provided, but as a separate justification for billing.

History

As little as a hundred years ago, detailed medical records were likely to have been compiled by medical researchers such as Charcot and Hughlings-Jackson. The medical record was an “aide memoire” for detecting changes in patients’ conditions over time, solely for the benefit of the physician in treating the patient.  As health care became more institutionalized, medical records became a communications device among health care providers. A centralized record, theoretically, allowed all to know what each was doing.  The ideal was that if the doctor were unable to care for the patient, another physician could stand in his or her shoes and assume the patient’s care.

Payer Pressures

Then, according to our friend and colleague William “Duffy” LaCava PhD Esq, came pressure from third party payers. As insurance and government programs became larger players in the compensation game, they wanted to know if the care they were paying for was being delivered efficiently. Though the real push behind these questions was the desire to save money, utilization review also directly contributed to better patient care.

Utilization review however, was mainly retrospective; denial of compensation was rarely imposed, and suasion by peers was the main effector of change. Though “economic credentialing” was shouted about, it rarely showed itself in public. Even managed care which openly admitted economic incentives as one of its motivators, preferred to find some other reason for deciding not to admit Dr. Jones to its panel of providers or not renewing Dr. Smith’s contract with the MCO. The medical record remained essentially a record of patient care which was good or not, efficient or not. If the record wasn’t complete, the doctor could always supplement it with an affidavit, use information from somewhere else, or provide explanations.

A Paradigm Shift

This nearly complete change in function of the medical record had precious little to do with the quality of patient care. To illustrate the point, consider only an office visit in which the care was exactly correct, properly indicated and flawlessly delivered, but not recorded in the office chart. As far as the patient was concerned, everything was correct and beneficial. As far as the third-party payer is concerned, the bill for those services is completely unsupported by required documentation and could be the basis for a False Claims Act charge, a Medicare audit, or a criminal indictment.

IOW: We have left the realm of quality of patient care far behind in the current e-medical record debates.

An Attitude Shift

In this contemporary age [circa 2010 and beyond], medical practitioners must adjust their attitude to the present function of patient records. They must document as required under pain of punishment for failure to do so. This new reality is infuriating to many doctors since they still cling to the ideal of providing good quality care to their patients and disdain such requirements as hindrances to reaching that goal. They are also aware of the fact that full documentation can be provided without a reality underlying it.

So, in the modern era of eMRs; some doctors think … and frustratingly say outright: “Fine, you want documentation?  I’ll give you documentation!”  Hence e-MR diarrhea!

APSO needs to replace SOAP in eMRs?

But, according to Dr. Ed Pullen, writing for the Health Care Blog www.TheHealthCareBlog.com,

Consultants have known for years that their referring physicians do not want to look through the entire history and physical exam documentation to get to the assessment and plan. Most consultants make notes to their referring physicians with the Impression and Plan/Recommendations at the top. . 

So, now the entire legal world knows that referring physicians do not want to look through the entire history and physical examination documentation to get to the medical assessment and treatment plan. WOWSA! As the patient, how would you feel about this statement? Furthermore he states that:

When a physician reviews a prior progress note, the information they usually want to see the assessment and plan.  Much less often they need to know the details of the patient’s history, examination, review of systems, etc. In a paper chart it is just a movement of the eyes to find the desired part of the note, and it makes little difference whether the needed information is on the first few lines, or at the end of the note.  The traditional progress note format is the SOAP note: Subjective history first, Objective information like vital signs, physical exam and test results next, Assessment including the diagnosis and documentation of the thought process and decision making third, and the Plan of treatment last.  This reads in a logical fashion, and has become the standard format in most paper patient charts.  In an EMR note reviewed on a computer monitor, the traditional SOAP note simply does not work.  The history of present illness, past medical history, family, and social history, and review of systems, and physical exam more than take up the available space on a monitor. 

To which we agree as the traditional SOAP format of medical charting was developed by Dr. Lawrence Weed in 1968. More formally, it is known as the Problem Orientated Medical Record [POMR]. However, the concept was updated about 20 years ago by adding the extension SOAP[IER], which may work a bit better:

I = Intervention
E = Evaluation
R = Revision

Of course, nurses know this, but doctors still may not. Or; they know but do not execute – a much graver offense.

On the APSO Format

Ed further states that:

Simply making an APSO note instead of a SOAP note, i.e. putting the Assessment and Plan first, and the Subjective history and Objective information later can make reviewing notes much more efficient.  This simple change can be done easily in most eMRs, and just requires thinking about the different work process using a computer monitor to look at information.

Note: APSO = Assessment, Plan, Subjective and Objective

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So, Let’s Change the eMR – But Not Bad Physician Behavior?

Well maybe; maybe not! The thought process here seems to be that if the physician behavior is wrong [not reading the entirely legible e-note], let’s change the electronic algorithm instead. To which we say, let’s change bad physician behavior; or doctor – PLEASE READ THE DAMN NOTE.

eMRs – A Malpractice Litigator’s Dream

Regardless of the above, whether electronic medical records will be more helpful, or even read and reviewed in the future, is still not known. Nevertheless, it is at best naive and more frequently closer to a death wish to think that an unscrupulous practitioner can beat the system, with handwritten notes; computer generated records, or fabricated eMR documentation. And, we do politely disagree when Dr. Pullen opines that:

eMRs also can easily make a document that does a good job of producing a document that can stand up to legal scrutiny. Although there is little data to prove it, some experts believe use of an EMR can reduce liability.

In fact, after serving as expert medical witnesses thru three decades, beginning during the early digital medical records revolution, we believe that eMRs will actually increase medical liability as astute plaintiff attorneys and skilled litigators portray them as canned, automated and robotic notes – not at all relative to the real patient. We’ve seen it before, and it will successfully happen again, as sympathetic jurors buy the argument – en mass.

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For example, we can just imagine a sly attorney admonishing the lay jury–

“My client, Mrs. Smith, is a human being – a patient – she is not an electronic template. Like you, she exits in the real world, not the virtual world of manipulated bits and fabricated electronic bytes. And, by the way doctor, did you even read the notes. After all, according to Dr. Ed Pullen, consultants have known for years that their referring physicians do not want to look through the entire history and physical exam documentation to get to the assessment and plan.   

Of course, like some other experts, we also believe that eMRs actually hinder the patient-physician relationship and communication channel.

http://www.kevinmd.com/blog/2010/03/emr-conversion-physician-communication.html

Assessment

MD-TraderIn almost an ironic return to the original reason for medical records, False Claims Act suits have been maintained on the basis that the care actually provided to patients was not good enough in quality to justify the claims being submitted. In other words, if the care provided fell below the standard of care provided, not only did the practitioner commit medical malpractice, but he or she also submitted a false claim!

Therefore, always remember that medical records are not a reflection of reality – they are the new reality [personal communication “Duffy” LaCava].

Conclusion

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Government-Enabled Patient “Bounty Hunters”

Spider Webbing Technology May Trip-Up Miscreant Doctors

By Dr. David Edward Marcinko; MBA CMP™

HO-JFMS-CD-ROMUnder the Health Insurance Portability Accountability Act (HIPAA), the U. S. Department of Health and Human Service (HHS) have operated an “Incentive Program for Fraud and Abuse Information.”

In this program, HHS pays $100 – $1,000 to Medicare recipients who report abuse in the program.

To assist patients in spotting fraud, HHS has published examples of potential fraud, which include:

  • medical services not provided;
  • duplicated services or procedures;
  • more expenses, services, or procedures claimed for than provided (upcoding/billing);
  • misused Medicare cards and numbers;
  • medical telemarketing scams; and
  • no-medical necessity.

Real Health Fraud Exists

There is no question that real fraud exists. The Office of Inspector General of HHS saved American taxpayers a record $32 billion in 2006, according to Inspector General Glenn A. Fine.  Savings were achieved through an intensive and continuing crackdown on waste, fraud, and abuse in Medicare and over 300 other HHS programs. To discourage flagrant allegations, regulations require that reported information directly contribute to monetary recovery for activities not already under investigation.  For the DRA in 2009, this includes the following:

  • promoting state False Claims Acts (section 6032);
  • enhancing the Fair and Accurate Credit Transaction Act, with “red flags” (PL 108-159); see http://www.gpo.gov/fdsys/pkg/PLAW-108publ159/content-detail.html
  • employee education about false claims recovery (section 6033);
  • augmenting the Medicaid Integrity Program (section 6034);
  • enhancing third party recovery (section 6035); and
  • “mining” medical claims for potential fraud with the help of sophisticated computer technology algorithms – called “spider-webbing” – which locate a common insurance claim denominator and then follow the thread throughout claims review. Indicators of  possible fraud include doctors charging more than peers; providers who administer more tests or procedures per patient; providers who conduct medically “unlikely” procedures; providers who bill for more expensive procedures and equipment when there are cheaper options; and patients who travel long distances for treatment.

Assessment

CMS and private companies are able to save far more money by detecting fraud before claims are paid than recovering the money after the factAnd so, a further erosion of patient confidence can be expected as CMS, and private insurers, assume the “bounty hunter” view of healthcare providers.

Conclusion

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For details about how to report an abuse, see www.usdoj.gov/oig/FOIA/hotline.htm.

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Economics of Medical Fraud

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Healthcare Leads the Pack

[By Staff Reporters]mardi-gra-skulls

All Medical Executive-Post readers and subscribers are aware of the Federal False Claims Act. Since 1986, False Claims Act [FCA] judgments and settlements totaled over $20 billion dollars. 

Of Miscreants and Feasors

According to outside unverified resources, below are the top 20 alleged FCA recoveries to date. Notice that all twenty, of the top 20, are healthcare and big Pharma related.

The Top 20

  1. Tenet Heath Care – $900,000,000
  2. HCA – $731,400,000
  3. Merck – $650,000
  4. HCA – $631,000,000
  5. Serono – $567,000,000
  6. Taketa Abbott Pharmaceutical Products Inc – $559,483,560
  7. Schering Plough – $255,000,000
  8. Abbott Labs – $400,000,000
  9. Fresenius Medical Care (National Medical Care) – $385,000,000
  10. Cephalon – $375,000,000
  11. Bristol Myers Squib – $328,000,000
  12. SmithKline Beecham [DBA] GlaxoSmith Kline – $325,000,000
  13. HealthSouth – $325,000,000
  14. National Medical Enterprises – $324,200,000
  15. Gambro Healthcare – $310,000,000
  16. Schering-Plough – $292,969,482
  17. AstraZeneca Pharmaceuticals – $266,127,844
  18. St. Barnabas Hospitals – $265,000,000
  19. Bayer Corporation – $257,200,000
  20. Schering Plough – $255,000,000

More: You can read all the details regarding these fraud judgments & settlements here 

Assessment

The above are the very companies that doctors, patients and many stakeholders rely upon. They bombard us every hour with TV advertisements and information on the latest drugs and newest procedures. They often promote cures for the exaggerated illnesses and nebulous ailments they seek to treat. Is this expense model just business-as-usual; or the cost-of-doing business?

Link: http://www.taf.org 

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Conclusion

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The Federal False Claims Act

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Understanding Qui Tam

[By Dr. Charles F. Fenton III; Esqfenton]  

A civil war era law, titled the False Claims Act (qui tam [in the name of the king]), is increasingly popular with prosecutors who pursue inappropriate billing mishaps by physicians.  

Why the False Claims Act? 

The FCA rose to prominence because in 1990, the healthcare industry accounted for about 10% of all false claims penalties recovered the federal government. By 1998, the healthcare share was almost 40%. Today, it may be even more. 

The “Act”  

The False Claims Act allows a private citizen such as your patient, your employee, or a competing doctor to bring a health care fraud claim against you, on behalf of and in the name of the United States of America. The “relator” who initiates the claim is rewarded by sharing in a percentage of the recovery from the health care provider. 

Essentially, the “Act” allows an informant to receive up to 30% of any judgment recovered against government contractors (Medicare, Medicaid, CHAMPUS, prison systems, American Indian reservations or the VA systems, etc).   

With a low burden of proof, triple damages, and penalties up to $10,000 for each wrongful claims submission, these suits are the enforcement tools of choice for zealous prosecutors pursuing health fraud.   

Assessment  

All that must be proven is that improper claims were submitted with a reckless disregard of the truth. Intentional fraud is irrelevant to these cases, even if submitted by a third party, such as a billing company. 

It is imperative that the attending physicians review all bills before they are submitted to any state of federal agency. The Federal False Claims Act is a federal law that has been on the books since the days of the civil war and which recently has become a tool to battle health care fraud.  

So, what do you think about the Federal FCA?

Conclusion

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