Practical steps to help you stay out of qui tam trouble
Practical steps to help you stay out of qui tam trouble
The first goal of health care providers should be to stop whistle blowers, warns Margaret Hutchinson, assistant U.S. Attorney in the Philadelphia office. "You should know from within your company where your problems are and where you have issues that need to be addressed," she advised providers at the Health Care Compliance Association’s conference in Washington, DC last month.
According to Hutchinson, the overwhelming majority of whistle blowers are employees who tried to correct the problem from within the company. When those employees are ostracized or ignored, they all too often wind up filing a False Claims Act case, she contends.
Hutchinson says that means the other goal of providers should be to avoid disgruntled employees. "We have allegations come to us from employees who are understaffed or do not have the right patient-to-supervisor ratio if it is a partial hospitalization program," she says. "Sometimes they don’t have the right equipment and lack the required facilities."
Hutchinson reports that her office has a case right now that stems from an employee frustrated by inadequate staffing in the therapist-to-patient ratio. "They were frustrated because they didn’t think they could do their job as a therapist," she asserts. "What they didn’t know until they came to us was that it was also a violation of the regulations."
"If your employees are understaffed, you must be aware of that and must be able to address it from the compliance perspective because it becomes a compliance issue," she argues.
Hutchinson also warns that when her office opens an investigation " anything is fair game." That is, unless you live and work in New Jersey, where trash has a privacy right attached to it, she says. "In all other states, there is no such expectation of privacy in your trash," she adds. "If you are throwing out the real staff-to-patient ratios and submitting a roster that is not the truth we are going to find that even if it’s in the trash."
She also warns that internal e-mail is "fair game" in discovery. "We are going to be able to trace that even if you hit delete’," she cautions. She says that means compliance officers have the obligation to follow-up on all e-mails regarding potential compliance problems. "If you don’t, I am going to ask you about that," she asserts.
According to Hutchinson, one of the areas rising on the radar screen of U.S. Attorneys is the area of credentialing. For providers wondering how that might turn into a False Claims Act application, Hutchinson explains that simply hiring a physician before their credentialing package arrives can land you in trouble.
Hutchinson says the worst-case scenario is when a provider has billed for services rendered by a non-credentialed physician. "In my estimation, that is a false claim," she warns. "My perspective as a U.S. attorney is that you knew or you should have known."
Hutchinson adds that checking credentialing is a simple process. In addition to the National Practitioner Data Bank (NPDB), there is a new process that just went on-line March 6 known as Healthcare Integrity Practitioner Database (HIPDB). "It has some kinks that need to be worked out and is not as complete as we would like but it will be eventually," she asserts. Unlike the NPDB, the HIPDB will include criminal convictions and exclusions in addition to adverse actions in the civil arena.
Finally, Hutchinson cautions providers about the growing application of quality of care violations. "When I talk about the quality’ of your employees, it goes beyond your doctors and nurses," she warns. "It goes to every level of your organization." That includes billers and administrative staff, she adds.
She says the best way head off problems associated with new employees is to work from the bottom up by scrutinizing their qualifications before they are hired. "I am not suggesting that you can’t hire someone who is brand new to the industry," she says. But if companies do that, they should devote extra attention to training and monitoring those billers, she adds.
"It is not a defense that the biller did it," she warns. "I have heard that defense with various themes and none of them work."
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