January 27, 2016

Civil Monetary Penalties Head List of OIG Enforcement Actions

By Edward Roche, MA, M. Phil, PhD. JD

EDITOR’S NOTE: During 2016, RACmonitor will be ramping up its coverage of the U.S. Department of Health and Human Services (HHS) Office of the Inspector General (OIG). 

Four areas associated with recent activities of the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) are proving to be of great interest for providers: the civil monetary penalties (CMP) statute, the administrative law that is emerging, the continued rise of corporate integrity agreements (CIAs), and various enforcement actions. In addition to focusing closely on these matters this year on RACmonitor, we also will be covering any reviews or developments in Congress that might arise.

First, a word on CMPs: these often very dangerous and severe penalties represent a type of double jeopardy for providers. Let’s assume that the provider has been audited. The provider goes through the appeal process:  redetermination, then reconsideration by a qualified independent contractor (QIC), then a hearing before an administrative law judge (ALJ), then perhaps a review by the Medicare Appeals Council (MAC). There is another level of appeal, a judicial review in federal District Court, but hardly any provider gets that far – they’d run out of money as the litigation costs skyrocket. 

So the litigation stops at some point, and if some money must be paid back, the provider writes a check. This is usually an extrapolated amount that has been chiseled down through the appeals process.  But it's all paid back.  

So the provider pays back the funds and looks over the litigation costs: attorney fees, statistical experts, coding experts, medical experts, and so on. You might think the matter is finished. You get ready to put everything into a giant file and stick it away somewhere. No one wants to be reminded of such an unpleasant experience. But at least it’s over, right?

Then the OIG comes knocking. Civil monetary penalties are levied. And this time, the numbers are huge! Here's what to do: get some mineral water and some ibuprofen. Then take what you already paid back, and multiply it by three. Then add on around $5,000 to $10,000 per claim on top of that! Pull out the file you just put away, call your attorney again, pay another legal retainer, and then get some more headache medicine. It ain't fun.

The OIG can go after a provider with CMPs for any reason it wants. It doesn't matter what the reason is because it can't be reviewed in court anyway. 

Your attorney will find out that the OIG's administrative law practices are a little different from typical courtroom maneuvering. For example, hearsay IS allowed, even though it is strictly forbidden by the federal rules of evidence (FRE). RACmonitor will be covering how this unique administrative law is evolving; we can promise a few surprises, but probably not the type of surprises you really like hearing about 

As mentioned, another RACmonitor focus in 2016 will be on the rapidly growing number of CIAs. Some have called CIAs "micro-management on steroids." Everything you do is tightly controlled. Every form you fill out is reviewed. Every claim is scrutinized – and by an outsider for which YOU have to pay. Some have called it "a standing, 24-7 audit."

RACmonitor will be interviewing providers who have gone through the CIA process. We are going to collect best practices that can be shared. So far, we are learning that implementation can be a real headache for the provider, but there are ways to manage it.

Finally, we also will be covering various enforcement actions by the OIG. Many of these cases involve jail time – and you might be surprised how much there is. One MD just got nine years for pre-signing prescriptions. Another just got two years for unnecessary treatments. A 65-year-old physician was excluded from the federal healthcare world for 25 years. He can start practicing again when he’s 90.

Many of these cases can easily be recognized as criminal, but not all. Some seem to be traps into which any provider can fall, No Mens Rea required. It's those "gotchas" that we will be scrutinizing. 

It promises to be an interesting year.

About the Author

Edward M. Roche, Ph.D., J.D. is the director of scientific intelligence at Barraclough NY LLC., a firm that provides litigation support and expert testimony for healthcare providers who have been audited.  

Contact the Author

Roche@barracloughllc.com

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