Hospital whistle-blowers pose an inside threat
Hospital whistle-blowers pose an inside threat
OIG encourages staff, patients to report abuses
Buoyed by stunning successes in five states and $139 million in fines and recoveries assessed against providers, the U.S. Department of Health and Human Services (HHS) is again raising the stakes in its controversial war against health care fraud and abuse.
Meanwhile, with the nation’s hospitals reeling under the onslaught of investigation, the American Hospital Association (AHA) has asked for a six-month moratorium on new investigations under the False Claims Act, saying the government "must take the lead in creating a new environment of cooperation and a keener focus on prevention rather than punishment."
Although the HHS’ Office of the Inspector General (OIG) has said it welcomes a more cooperative relationship with hospitals, it had given no indication at press time of bowing to the AHA request by imposing a moratorium on new investigations.
As part of a stepped-up campaign, the agency is intensifying what amounts to a rear-guard action against providers by encouraging patients and employees to report abuses and bring lawsuits against hospitals, whether the violations are real or imagined. Experts say coding and billing issues will be key focuses of the probe.
As a result, hospitals and other providers are being put on notice: The threat of prosecution could come from three unexpected sources your own medical record staff, billing staff, or your patients. Fraud-watchers expect whistle-blowing actions against providers to increase sharply, fueled by government policies that encourage and even reward whistle-blowers and recent court cases that are testing the limits of such actions.
"This is a very real threat that hospitals should not take lightly. Proving that you’re doing nothing wrong can be expensive and punishing," warns Margit H. Nahra, JD, a health care attorney with Michaels, Wishner and Bonner, a law firm in Washington, DC.
Hospitals need to boost their sensitivity to employees and patients and find ways of responding constructively to complaints without intimidating either group, Nahra says.
The use of internal telephone hotlines and candid, risk-free gripe sessions for coders and billers to air issues is effective. Strong, positive patient relations built on trust and openness regarding treatment information also help. "They blunt the potential for people to opt for whistle-blowing as a means of reporting problems," says Karl J. Kuppler, vice president of operations and corporate compliance officer with Trumbull Memorial Hospital in Warren, OH. The hospital recently opened an anonymous tipster hotline for employees as part of a broad-based regulatory compliance program.
Trumbull Memorial’s timing couldn’t be better. In May, the HHS announced that it will expand the Clinton administration’s crackdown on health care fraud and abuse through a program known as Operation Restore Trust (ORT), a broad-based initiative that targets independent and hospital-based nursing homes, home health agencies, and durable medical equipment suppliers.
Launched in 1995, the operation has netted $139 million in fines, recoveries and penalties, focusing mainly on providers in California, Florida, Illinois, New York, and Texas.
It also has resulted in 51 civil judgments, 72 pending criminal convictions, and 177 cases in which a Medicare license was revoked. HHS plans to expand the initiative to 12 additional states: Arizona, Colorado, Georgia, Louisiana, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, and Washington.
The operation is running concurrently with several separate, unrelated HHS initiatives, among them the hospital nonphysician outpatient billing probe, which involves the Medicare 72-hour window rule, and the outpatient laboratory bundling initiative, which has been called the "Labscam" investigation.
HHS’ total anti-fraud spending in fiscal year 1997 is slated at $599 million. Meanwhile, ORT has cost taxpayers $7.9 million, the agency says.
While the operation does not focus solely on violations of the century-old federal False Claims Act, the initiative and the two separate outpatient billing probes mentioned earlier have concentrated on fraudulent over-reimbursements. The False Claims Act exacts civil and criminal penalties against individuals and organizations that defraud the federal government under programs such as Medicare and Medicaid.
Two recent measures, one stemming from the False Claims Act itself, have effectively boosted opportunities for individuals to blow the whistle against fraudulent providers:
• Qui Tam.
An important False Claims Act provision, commonly referred to as Qui Tam, allows employees to bring lawsuits against organizations on behalf of the government for alleged wrongdoing. The U.S. Supreme Court is considering an important Qui Tam case involving a defense contractor and a whistle-blowing former employee. A favorable ruling for the former employee could expose health care providers with Medicare contracts to so-called parasitic lawsuits.
• Kennedy-Kassebaum bill.
A provision in the Health Insurance Portability and Accountability Act of 1996, also known as the Kennedy-Kassebaum bill, authorizes monetary rewards for individuals who tip off the government about violations of the Medicare antikickback laws when they result in penalties.
In separate, unrelated ways, both Qui Tam and ORT empower individuals to blow the whistle on providers, Nahra says. For this reason, they bear close watching.
Meanwhile, ORT has its own whistle-blower mechanism. In its second phase, HHS wants to increase the use of a telephone hotline HHS-TIPS by making the service more accessible to the public and getting groups such as the American Association of Retired Persons in Washington, DC, behind the effort.
Since 1995, the hotline has produced more than 13,000 Medicare beneficiary complaints and resulted in $6.1 million in pending recoveries against providers, according to HHS. The complaints have varied but have included cases of unnecessary utilization and improper billing and reimbursement.
HHS plans to strengthen the hotline and incorporate it into a series of stepped-up technical and organizational innovations designed to help investigators. They include the following:
• An enhanced computer software program and statistical methods will analyze claims by case mix and detect billing irregularities that will lead to tougher audits for hospitals and larger expected recoveries.
HHS’ Office of the Inspector General (OIG) refused to provide details on the software or the statistical methodology. The agency indicated, however, that both are part of a series of projects under development, described in a 110-page document, OIG Work Plan for Fiscal Year 1997. The document outlines HHS’ immediate operational plans for ORT. (See source box, at right, for information on how to obtain a copy.)
• Investigative teams composed of officials from the OIG, the Health Care Financing Administration, the Administration on Aging, the Department of Justice (DOJ), and state regulatory agencies will single out facilities with unusually high Medicare reimbursement rates.
• DOJ officials and other law enforcement agencies will become more involved in planning and conducting investigations, which could suggest a higher number of criminal prosecutions than in the past.
• State and local aging organizations and ombudsmen officials will be trained and authorized to detect and report fraud.
• State-level Medicare and Medicaid certification officials will be used more often to monitor care and help identify inappropriate care and fraudulent billing practices.
In all likelihood, whistle-blowing incidents at hospitals will focus mainly on two key areas of interest to fraud investigators, Nahra says:
• the effectiveness of a hospital’s internal policies regarding the accuracy of coding and billing;
• questions of medical necessity and appropriateness, both of which inevitably involve an inspection by fraud investigators of patient files and billings.
While some hospital officials believe that internal hospital compliance programs can and should effectively address whistle-blowing concerns through internal employee hotlines and patient relations programs, many believe that in health care the issue may be overblown. Some, like Kate McComb, Medicare reimbursement analyst with Highline Community Hospital in Seattle, believe that hotlines will serve mainly as outlets for disgruntled employees and will lead to few genuine reports of fraud. "Most hospitals aren’t trying to defraud anyone," she says.
Still, open communication reflected in a compliance program is a sign of positive intent. "If there happens to be fraud, then there’s merit in alerting management," McComb adds.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.