The Trump administration is cracking down on healthcare fraud. Here’s how to protect your practice

Medical justice
A former prosecutor says there are steps doctors and medical practices can take to protect themselves against healthcare fraud. (Getty/yavdat)

Watch the headlines and they are full of alarming stories of doctors and other healthcare professionals charged with healthcare fraud.

Jason Mehta
Jason Mehta (Courtesy
of Bradley LLP)

For some health practitioners, the result is settlements, guilty pleas or verdicts, hefty fines and even prison time.

With healthcare now accounting for one-sixth of the U.S. economy—the government data says the country spends about $3.5 trillion a year on healthcare—it makes perfect sense with that kind of money at stake that prosecutors are taking aim at healthcare fraud, says Jason Mehta, a Tampa, Florida-based attorney, who is a partner at Bradley LLP.

Now a defense attorney who advises clients on proactive compliance, Mehta once was on the other side of the courtroom aisle. He is a former assistant U.S. attorney for the Middle District of Florida, historically one of the most active healthcare enforcement judicial districts in the country.

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It should come as little surprise to healthcare practitioners that prosecutors are devoting time and attention to going after what they perceive to be healthcare fraud, Mehta said in an interview with FierceHealthcare.

It’s a trend he doesn’t expect to go away. Even as the Trump administration has pushed for government deregulation, law enforcement agencies have not let up when it comes to looking at healthcare fraud, he said. The more success the U.S. Department of Justice has in prosecuting healthcare fraud, the more it will go after other cases, Mehta noted.

RELATED: DOJ charges more than 600 in historic fraud takedown involving $2B in false claims

The latest statistic is that for every dollar the federal government spends on healthcare fraud investigations, it recovers between $7–$10, according to Mehta.

Healthcare legal cases span the gamut. They often involve cases where physicians have allegedly billed for unnecessary or improper treatments. There are cases where organizations improperly paid kickbacks to doctors. And as a result of a government crackdown in reaction to the country’s opioid epidemic, there are more charges involving prescriptions of opioids. 

In March, for instance, a Kansas doctor was sentenced to life in prison after he was found guilty of unlawfully distributing prescription drugs, including prescriptions blamed for the overdose death of a patient.

RELATED: Jeff Sessions announces more prosecutors for crackdown on opioid providers

While in many cases doctors and other clinicians are clearly guilty of wrongdoing, sometimes prosecutions involve the failure to comply with nuanced regulations. Clinicians would be well-served by heeding the warning signs and carefully following the letter of the law.

Healthcare fraud, by the numbers

Amount in settlements and judgments from cases involving fraud and false claims for fiscal year 2018: More than $2.8 billion

Amount involving the healthcare industry: $2.5 billion

Recoveries: Reflected federal losses but also millions of dollars for state Medicaid programs

Amount from lawsuits filed under whistleblower provisions of the False Claims Act: Over $2.1 billion

Amount paid to individuals who exposed fraud and false claims: $301 million

Number of whistleblower suits filed in  2018: 645, an average of more than 12 new cases every week

Source: Department of Justice

There are lessons healthcare practitioners can learn from the mistakes of their peers, says Mehta. Here are four tips to help physicians and practices stay out of legal trouble:

• Carefully document patient care. Do not be lax when it comes to that documentation. Most physicians learn in medical school that if it’s not documented, it didn’t happen. However, over time, some doctors become a bit more lax with their documentation, Mehta says. That’s a mistake. Physicians and healthcare providers need to remain vigilant. Why? When prosecutors review clinicians’ practices, they often start with the actual patient files.

Documentation matters not just in the exam room, but also the courtroom. Make sure your patient files fully and accurately reflect the work you actually do. You want to be able to show that you provided the medical services you say you did and that they were medically necessary.

• Scrutinize your financial relationships. Anti-kickback statutes can be very broad. Even one payment to an individual that can look improper in terms of referring business could run afoul of the law. Scrutinize who you are paying, Mehta says. Make sure you can explain why payments are bonafide.

As many practitioners have learned the hard way, well-intentioned and otherwise legitimate business deals that would be lawful in any other realm might be inappropriate in healthcare. Carefully review your existing financial relationships and make sure that these arrangements will pass regulatory requirements.

RELATED: Doctor will pay $3M for improper billing of Medicaid and Medicare

• Be extra cautious when prescribing opioids and controlled substances. "The Trump administration has really prioritized enforcement with respect to opioids and I think with good reason. The opioid epidemic is truly an epidemic of historic proportion,” Mehta says.

A lot of the enforcement action brought recently by the Department of Justice has centered on prescribers that are disproportionally prescribing opioids and also pharmacies that are disproportionally dispensing opioids, he says.

Given that heightened scrutiny, practices should carefully review their protocols for prescribing opioids and make sure they document the need for patients who receive those drugs.

While some doctors are clearly running so-called “pills mills,” others may be getting caught up in the toughened enforcement. “When you look at some of these criminal cases, it’s easy to say they are a really bad apple. But particularly in the opioid space, the government is getting very aggressive in targeting and catching physicians and other providers that are not the quintessential bad apple. Understand the government has a real focus on opioids and anyone who is writing prescriptions for controlled substances needs to be aware of that and err on the side of caution,” he says.

Be sure you respond to employees’ concerns. Many times the government brings cases based on whistleblowers, who are often employees. In some of those cases, employees would prefer to raise their concerns internally within the organization. “They want to be internal watchdogs rather than government informants,” Mehta says.

But if employees feel they are not heard, they may go to law enforcement with their concerns. Mehta suggests organizations make sure they have an anonymous hotline where employees can report their concerns and then make sure they act on those reports. Even small practices need to have a means for employees to voice concerns, even if that is a suggestion box where an employee can drop a note that red flags what they see happening. “The more you can have employees be your frontline ears and eyes on the ground the better it will be. The more they feel empowered to report internally the better,” he says.

While Mehta believes the vast majority of healthcare practitioners are honest and well-intentioned, healthcare fraud settlements are a cautionary signal that providers should not be complacent. "You can’t forget about compliance because the government is watching,” he says.

“I really believe somewhere between 95% to 99% of practitioners out there are doing the right thing every day and they’re doing amazing work to improve patient outcomes. We are really talking about a small sliver of the population" with regard to fraud cases, he says.

“My suggestion is you always remain vigilant, learn from others and err on the side of caution when dealing with regulated medicine."

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