July 1997
Volume 61 |
Number 7
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PRESIDENT'S PAGE
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| "Knowingly?"
- Ignorance Is No Excuse! |
Phillip O. Bridenbaugh, M.D., President
A few weeks ago I received an e-mail message from a private practicing
anesthesiologist. He wrote to express his concern about highly
publicized legal action charging a number of anesthesiologists
with fraud and abuse in their Medicare billing. He wrote, "...
there is a growing perception in the anesthesiology community
that the ASA is abandoning the anesthesiologists in the practice
here." He went on to say, "Could this be true?"
To defend his colleagues, he related that he knew some of those
involved to have a practice style similar to his in maintaining
a 2:1 coverage ratio, which he felt provided excellent care to
his patients. He asked, "Is there a perception that anesthesiologists
in this state are practicing in an unsavory manner?" He went
on, " ... ASA should investigate ... and be satisfied that
they practice in a high quality manner."
I believe he hit the heart of the matter when he said, "The
fraud case is alarming because it enters what are the murky waters
of regulation comprehensibility. I would hazard a guess that anyone
supervising a case could be felt to be fraudulent depending on
how a local carrier or HCFA [the Health Care Financing Administration]
'decided to interpret things.'" His message is clear. These
anesthesiologists are moral, ethical physicians delivering a high
quality of anesthesia care and, therefore, must be falsely accused.
Furthermore, he feels ASA should investigate and then clear these
physicians from the "perceptions of unsavory practice!"
Playing the role of "the accused" is not new to anesthesiologists,
nor to most physicians for that matter. Since the late 1960s when
medical malpractice lawsuits began to reach their peak, the "grand
and glorious" physician has been reputed to be a fallible
human being in an area of knowledge he/she studied, learned and
was licensed to practice. Now physicians, including anesthesiologists,
are being charged with fraudulent practices because they are found
not to be in complete compliance with a body of regulatory requirements
written by legislators and regulators who have never practiced
medicine but who reserve 100 percent of the right to interpret
the application of those regulations to every physician's practice
on Medicare patients. Any wonder physicians feel angry and paranoid
for being publicly accused for fraudulent practice?
It is imperative that all Medicare providers and the public
realize that these federal regulations are legal requirements
only for receiving reimbursement for services rendered.
In spite of an often voiced complaint from many physicians that
the government is telling us how to practice medicine, the simple
truth is: you can practice as you please; just do not send them
the bill for payment.
What Can/Should We Do?
As is true with most of life's problems, what we can do
is often not what we should do. We can refuse to treat
Medicare patients, but this is contrary to our Hippocratic oath
to treat without regard to pay, and it penalizes the elderly from
getting optimal anesthesia care.
We can avoid the risk of being sued by the government for Medicare
fraud by not submitting claims for reimbursement. That would go
a long way toward balancing the Medicare budget, but most physicians
prefer to direct their charity toward more noble institutions
or endeavors. Or, we can choose not to "fight the problem"
but rather try to understand and be a part of the solution.
The first essential is to recognize the "whys" and
"wherefores" of Medicare reimbursement. What may have
started out as a simple contractual requirement for reimbursement
of services rendered has become, over the years, a morass of governmental
interagency micro-management. Physicians submit claims for payment
for services to a variety of payers. Each has different criteria
for types of services they will reimburse and what documentation
they require before payment will be made.
When Medicare reimbursement first began, physicians and their
billing agents learned those guidelines like they did for any
other payer. The usual consequence of errant claims submission
was denial of payment; or sometimes, after claims review, a request
for restitution of monies paid for errant claims. Within the past
decade with ever-increasing frequency, the Inspector General's
office of the Department of Health and Human Services has undertaken
audits of Medicare providers' claims records for determination
of compliance with Medicare regulations, failure of which might
indicate fraud and/or abuse in billing claims.
Physicians found it easier to understand the legal dynamics of
professional liability relating to medical malpractice and paid
for insurance against such actions, realizing we are fallible
and human. Furthermore, we all understand most of the rationale
for the requirements of ethical practice (i.e., informed consent,
etc.) and how to document and defend ourselves against such charges
of medical malpractice. Now we must learn a whole new area of
our practice relating to the legal obligations to defend ourselves
against charges of fraud and abuse. We also need to understand
the consequences, financial and even criminal, of being deemed
guilty of an offense for which we almost certainly have no insurance.
What Is ASA Doing?
Some ASA members, frustrated by the current situation, have claimed
that ASA inadequately informed them on these matters. The fact
is, however, that ASA sent each one of its members a memorandum
describing the 1983 medical direction rules in detail and, through
the NEWSLETTER and other communications, has regularly
updated the membership ever since. ASA involved the leadership
of the principal academic anesthesia organizations in all phases
of development of the new teaching rules and mailed a summary
to every member of those organizations a year ago.
For the past three years, ASA has presented a Conference on Practice
Management, attended each year by 400 anesthesiologists and anesthesia
practice managers. Compendia from all three seminars were available
for ASA members unable to attend, with notice of availability
included in the NEWSLETTER. The first seminar dealt mostly
with managed care, capitation and integrated practices, but it
also included a detailed presentation by ASA staff on Medicare
reimbursement principles. The past two conferences have included
even more lectures and information related to the latest revisions
of Medicare reimbursement requirements and what anesthesiologists
and their practice managers should do to be in compliance in the
event of an audit by any Medicare agency. This past year's seminar
also included significant information about the increase of audits
by the Inspector General's office and the financial penalties
being levied as a result of alleged fraudulent billing.
Late last year, Judith Semo, Esq., of ASA's outside law firm
of Squire, Sanders & Dempsey, Washington, D.C., prepared a
monograph on fraud and abuse principles for presentation at a
regional seminar. On review of this monograph, the ASA Administrative
Council determined to contract with the law firm for an expanded
version to contain significant information on how practices should
develop compliance programs and internal audits. This document
will be edited by legal experts, anesthesiologists and anesthesia
practice managers and should be available to ASA members by late
summer.
Fundamental Principles
(The following information includes excerpts from the monograph
under preparation by Ms. Semo.)
The term "fraud and abuse" encompasses potential liability
under a variety of statutes. In many cases, state laws contain
similar provisions. The Medicare Carrier Manual defines "fraud"
as follows:
Fraud is the intentional deception or misrepresentation
that an individual knows to be false or does not believe to
be true and makes, knowing that the deception could result in
some unauthorized benefit to himself/herself or some other person.
Fraudulent activities can result in both criminal and
civil liability.
Abuse is a lesser offense that refers to incidents and practices
that are inconsistent with accepted medical practice and result
in unnecessary cost or financial loss, directly or indirectly,
to the Medicare program, e.g., claims for services that were not
medically necessary. Abuse can escalate into fraud, especially
where the abusive conduct is repeated until it is discovered.
Examples of Medicare fraud applicable to anesthesiology:
- Billing for services or supplies that were not provided;
- Deliberately applying for duplicate payment from both Medicare
and the patient; and
- Misrepresenting the services provided by upcoding or using
inappropriate procedure codes.
False Claims Liability
A series of laws bars the submission of false claims to the government.
They, too, provide for both criminal and civil liability. The
Medicare law contains criminal penalties for "knowingly and
willfully" making, or causing to be made, any false statement
or representation of a material fact in any claim for benefits
or payment under Medicare. Such false claims or statements constitute
felonies and include fines up to $25,000 and imprisonment for
five years or both.
Civil False Claims Statutes authorize monetary penalties and
assessments on providers for a) a service that the person knows,
or should know, was not provided as claimed, or b) a service
the person knows, or should know, is false or fraudulent (e.g.,
double billing).
Enforcement of the False Claims Act is not limited to government
officials. Private individuals may bring qui-tam actions
in the name of the U.S. government (i.e., whistleblower actions,
in lay terms). Qui-tam plaintiffs can recover as much as
15-25 percent of the settlement if the government intervenes,
and 25-30 percent if the government chooses not to proceed. All
physicians need to be sensitive to the possibility of "whistleblowers"
in their own practices. The whistleblower action is usually initiated
by disgruntled current or former employees who often try to document
billing abuses in exchange for a share of the fines. Such has
been the case in some of the anesthesia actions currently in litigation.
Think about the Medicare claims your practice submits in one year!
The False Claims Act provides for penalties of $10,000 per claim
and treble damages. It only takes a few claims to lead to extensive
liability.
What Is the Point?
My reasons for discussing this rather unpleasant aspect of our
practice is to impress upon all ASA members the critical importance
of compliance with Medicare reimbursement requirements. Back in
1890, a book titled The Gentle Art of Making Enemies contained
the quote, "I am not arguing with you, I am telling you."
As I stated earlier, this is not about the practice of anesthesia,
this is about legal filing of claims for Medicare reimbursement.
The government, as a practical matter, can make the reimbursement
rules as exacting as it wishes and subject to certain constitutional
limits; those who accept reimbursement are obligated to comply.
It is unfortunate that we must practice in an environment where
we must wonder if someone is watching us to see if we comply with
the regulations. Rest assured, those so inclined toward remunerative
vindication know the rules as well or better than most of us.
It gives some credence to the old gag, "I am not paranoid,
they really are out to get me!"
Finally, I take this opportunity to tell all ASA members that
we are doing our best to keep you informed. Remember, our Society's
mission is education in scientific and socioeconomic areas. This
includes legislative and regulatory lobbying. We hope the forthcoming
monograph on "Fraud and Abuse" will provide you all
the information you need to ensure your personal and group compliance
with the Medicare regulations.
ASA legal counsel advised us, as we undertook this project, "It
must be remembered that if a fraud and abuse monograph is widely
distributed among ASA members, the Office of Inspector General
and the Justice Department will start from the proposition that
audit and investigation targets were on notice of its contents."
The point is, we must read this information! Conversely, we also
have been advised that "ignorance of the law is no excuse."
Thomas Jefferson said that in 1787, and the government still says
it today.
Therefore, it is imperative that our practice for billing Medicare
is accurate. As Ms. Semo concludes, "Substantial compliance
with Medicare billing requirements is not a sign of good faith;
rather, it is an admission of the lack of full compliance."
ASA stands ready to help you be knowledgeable. "Coming close
only matters in horseshoes!"
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