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At the recent Health Care Compliance Association (HCCA) annual meeting in Las Vegas, I had exactly the type of conversation that benefits everyone in the industry. Sean Weiss from DoctorsManagement mentioned that a client recently received a request to participate in a Skype meeting with a Medicare Administrative Contractor (MAC). Like me, Sean had never seen a letter like this, and he found it interesting.
The request for the Skype interview was short on details. In fact, it was impossible to ascertain the goal of the meeting. But one thing was crystal clear: it should have rung all sorts of alarm bells. While I have never seen a letter from a MAC requesting a Skype meeting, I have had clients receive requests to appear in person for meetings with a contractor.
Many years ago, an unwitting audiologist went to one such meeting with her Medicare carrier only to discover that it was attended by an agent from the U.S. Department of Health and Human Services (HHS) Office of Inspector General, or OIG. As soon as she entered the room, she realized that she should have brought counsel. While she could have, and indeed should have, then opted to reschedule the meeting until she had a lawyer with her, she caved to the social pressure and met with them.
She called me after the meeting. A phone call with the OIG agent confirmed that they had opened a criminal file and were using the meeting as a mechanism to gather information in a non-threatening environment. The agent used the “routine meeting” to conduct an interview that a person might have declined, had they realized the implications.
It took some time to convince the government to close the criminal matter, and it took years to then convince them to close the false claims investigation. The case ultimately was handled as a small overpayment case, and we convinced the administrative law judge (ALJ) to dismiss it. While no one could prove that the investigation would have ended faster had the audiologist retained counsel before the meeting, it almost certainly would have been resolved more swiftly. The agent involved was bright and careful, and had he had the information we later presented the government, he would have quickly realized that there were bigger fish to fry.
While many might suggest that bringing counsel to a meeting is a tacit admission of guilt, and that “only guilty people need lawyers,” nothing could be further from the truth. In fact, innocent people need lawyers far more than the guilty, because if a guilty person goes to jail, no miscarriage of justice has occurred. Innocent people need to have a strong advocate to ensure that justice prevails. The reality is that attending a meeting with the MAC or a Zone Program Integrity Contractor (ZPIC) without counsel is foolish.
Part of your compliance training should include reminding everyone in your organization that they have the right to have legal counsel assist with any type of interview, and it is prudent to exercise that right. This point must be stressed before any requests for an interview are received, because the request for the meeting often will be sent to the medical professional directly. The professional may be extremely hesitant to notify others in the organization of the request out of fear that it might imperil his or her employment, or otherwise reflect poorly on the professional. Sound risk management requires you to remind everyone that any request for meeting with any representative of a government or payor, whether using Skype, by phone, in person, or even via telegraph, should be taken very seriously and should involve legal counsel. You may wish to use this strange Skype request as an opportunity to remind everyone in your organization about how to respond to contact from the government or other insurers.
I have a laminated pocket card that clients may give to employees. If you would like me to send you one, or even several, of these cards, please email me at email@example.com.
About the Author
David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.
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