A Health Care Crackdown in 2018: Inside the Government’s Playbook

Categories: Medicare Lawyer

Health Care Crackdown

Why You Can Count on More Audits and Takedowns in 2018 (And How They’ll Happen)

Has your medical clinic been targeted in a health care crackdown yet? It may be only a matter of time.

What do we mean by a health care crackdown? As sensationalist as the term may sound, the Department of Justice (DOJ) and Drug Enforcement Administration (DEA) use that very language to proudly boast of their dozens, sometimes hundreds, of simultaneous health care arrests – takedowns that are becoming more common with each passing year.

In late 2017, Attorney General Jeff Sessions pledged his renewed support for more strenuous crackdown efforts across the country. It’s a DOJ priority under the Trump Administration, which has promised to tighten the government’s grip on health care fraud, waste, and abuse (especially as it relates to opioid addiction).

Around the same time, the Centers for Medicare and Medicaid Services (CMS) pledged to double down on its auditing efforts while adopting a more targeted approach, all of it focused on prosecuting health care fraud.

We’ve seen the government’s health care crackdowns intensifying since the George W. Bush Administration, with the establishment of six Health Care Strike Force offices around the United States in 2007. Those efforts expanded under President Obama, with three additional Strike Force offices opening in 2009. Now, those same agencies are getting additional direction and support under President Trump.

No matter which way the political winds may blow, it seems that health care providers are always caught in the storm.

Frustratingly, in their rush to “crack down,” health care investigators may act hastily. Good doctors are lumped in with the bad, and unintentional errors (the wrong code on a Medicaid bill, for instance) are made to look like calculated duplicity before a court.

Left in the wake of so many health care crackdowns are literally dozens of medical companies — and many more employees — whose businesses and community standings are shattered without good cause.

Now, between new CMS policy and new direction from AG Sessions, federal health care audits might become more intensive than ever before.

How the CMS Plans to Target Health Care Providers for Alleged Fraud in 2018

The CMS’s new audit policy, announced in August 2017, pertains primarily to its TPE program (Targeted Probe and Educate).

Ostensibly, TPE is designed to benefit medical clinics and supply companies by reducing their overall number of claim denials, educating them on proper billing processes, and helping them to learn more about the appeals procedure.

In reality, however, this “educational” process is executed by means of an audit, a process that can quickly lead to a criminal investigation and/or civil enforcement proceedings. (Even if the investigation doesn’t progress to that stage, the audit itself can cause tremendous disruption to your clinic’s business operations, often entailing extraordinary expense and distress.)

Under TPE, the CMS has authority to:

  • Choose individual health care providers / companies to “enroll” in the TPE program.
  • Audit between 20 and 40 claims from selected clinics, as well as supporting medical documentation related to those claims.
  • Make recommendations for improvement based on the audit.
  • Invite providers to a “one-on-one education session” if even a single claim is denied.
  • Refer cases for further action if the CMS suspects criminal fraud and/or overpayment from past few years. (Additionally, even in the absence of such evidence, failure to sufficiently “improve” after 3 rounds of TPE will subject providers to additional CMS penalties, including prepay review, civil enforcement, and referral to other agencies.)

Previously, CMS selected some providers at random for entry into TPE. Now, in response to agency-wide backlog, agents will take a more targeted approach instead, focusing on agencies with “irregular” billing patterns.

While that might sound reassuring, it’s important to read between the lines. Targeted audits may very well mean more intensive audits — and if you’re selected for audit under the new guidelines, it means your selection wasn’t merely “routine” and you may already be under suspicion of fraud as part of a health care crackdown.

Moreover, the CMS definitions of “irregular billing patterns” are often unreasonable and excessively broad. Merely being located in an area where there are a lot of Medicare or Medicaid patients could be enough for the CMS to suspect of you submitting an “irregularly” high number of claims… and along comes an audit. Sure enough, the Strike Force offices are intentionally located in cities with a disproportionately large population of Medicare / Medicaid beneficiaries.

Recent Examples of a Health Care Crackdown

Sometimes, the best way to appreciate how common and ruthless these health care crackdowns really are is to see them for yourself. Below, we present only a small sampling of recent crackdown announcements by the DOJ (with links to the Attorney General’s official announcements):

  • 412 Individuals Arrested Across 41 Federal Districts in $1.3 Billion Health Care Fraud Scheme (July 13, 2017)
  • Three Detroit-Area Physicians Convicted for Participating in $17.1 Million Health Care Fraud Scheme (May 8, 2017)
  • Medicare Fraud Strike Force Arrests 90 Individuals (Including 15 Doctors and 12 Other Medical Professionals) for False Bills Totaling $260 Million in Health Care Crackdown (May 13, 2014)

These are only a few of the many examples. A quick search for “health care fraud” on the DOJ’s News Release website produces many more cautionary tales. We often blog about these takedowns as they happen, as we think there’s a lot that medical professionals can learn from them in the way of prevention.

Don’t Fall Victim to a Health Care Crackdown. Call Oberheiden, P.C..

The best and first defense is a preventative one. The government is being proactive in executing health care takedowns; you should be proactive in protecting yourself from one.

Oberheiden, P.C. offers free consultations for medical providers and business owners. Let us put our experience on your side. Contact us today.

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This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Merely reading this information does not create an attorney-client relationship. Prior results do not guarantee similar outcomes in the future, every case is different. Oberheiden, P.C. is a Texas firm with its headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.
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