© Lucian Bernard
Home care is once again the target of government efforts to reduce health care expenditures. The array of programs being used to financially and operationally confront agencies is extensive and daunting: focused medical reviews, compliance reviews, recoupments, denials, offsets, payment suspensions, ORT, program exclusion, civil monetary penalties, Wedge audits and criminal prosecutions, to name just a few. What can an agency do before, during and after an investigation?
WHAT TO DO PRIOR TO AN INVESTIGATION
Agencies must be prepared for unannounced investigations and audits at any time. The consequences of these investigations can be extreme, both financially and criminally. There are steps an agency can take now to minimize the potential damage of being the target in a government investigation:
Prepare for possible delays in payment or suspension of payment – review your lines of credit or other sources of cash flow to be sure they are adequate if you are caught up in the storm.
Begin to review your system of internal audit of claims to determine that there is adequate documentation of compliance with medical necessity and homebound criteria.
Maintain a separate file for your communications with legal counsel, since those documents can be protected from seizure by government agents under attorney-client privilege.
Contact your health law and criminal law attorneys now to ensure their availability to represent you when needed.
Only the reckless, daring or naive will not have a Fraud and Abuse Compliance Plan in place. A comprehensive plan may include all of the above.
WHAT TO DO DURING AN INVESTIGATION
If you are notified by a surveyor or a fiscal intermediary that your agency is being subjected to an audit, do not expected to be treated fairly, or with meaningful due process:
Make certain that you have copies of all documents that you provide to the surveyor so that you can conduct your own detailed audit of that case file;
Be certain that the intermediary has all of your documentation before the government renders an initial decision; and,
Contact legal counsel at the outset to achieve the greatest protection of attorney-client privilege and perhaps extend that protection to the activities of your accountant, consultant, etc.
If, however, government agents present subpoenas or search warrants, time is of the essence and you should remember to do the following:
Find out who is the agent in charge and ask to see the document. A subpoena requires the production of material, but the officer(s) presenting the documents may not search the premises and seize the material. A search warrant allows agents access to the premises and the authority to seize material described in the warrant, or accompanying affidavit.
Immediately contact your attorney and advise him or her of the situation. At this point, the call is probably being monitored and there are guards at all of the entrances to your agency. Ask the agent in charge to seal the area and delay the search until your attorney arrives. Have trusted supervisors or managers accompany agents to the areas covered by the search warrant to observe, not to interfere.
Advise your employees that they are under no obligation to answer any questions by the agents – Do not tell them that they cannot speak to agents, because that could be construed as obstruction of justice. It is the employee’s choice to answer questions or remain silent. Usually, government agents will not tell your employees that. Then send all non-essential personnel home and otherwise close the agency until the search is completed.
WHAT TO DO IN THE AFTERMATH
An agency must be very careful about agreeing to a settlement with the government without first reviewing all of the legal ramifications with its legal counsel.
Accepting an extrapolated damages claim by the government based on an audit, for example, can have many unforseen consequences. An agency that accepts a monetary settlement of an audit could still be subjected to any of the following:
Mandatory or permissive exclusion from the program;
Inclusion in the national database authorized by the Portability Act as an “abuser” (the so-called scarlet letter provision); and/or, Imposition of civil monetary penalties.
Remember, too, that positions your agency accepts as part of any settlement with the government can have collateral consequences under other federal laws, such as the Fair Labor Standards Act (FLSA), the False Claims Act (FCA), etc.
The government has maintained its position that Medicare/Medicaid fraud is public enemy #3, just behind drugs and violent crime, and is directing much of its efforts at home care.