How Many Felonies Have You Committed Today?

How many compliance related crimes have you or your colleagues or employees committed today, whether purposefully or, completely inadvertently?

A friend, a former federal prosecutor, recently told me about a book called Three Felonies a Day. The book addresses the fact that, due to the burgeoning number of criminal laws and, even more concerning, regulations imposing criminal penalties including imprisonment, almost everyone unknowingly commits a number of acts each day that could be charged as federal crimes by overzealous prosecutors.

Among the top hits for many medical groups are billing related crimes. The wrong code, the overstated anesthesia time, the unknowing Stark Law violation, can all result in criminal liability charged under multiple federal laws such as health care fraud, mail fraud, and wire fraud.

Also ever popular are violations of the federal Anti-Kickback Statute, a criminal law making it illegal to offer, solicit, pay, or receive any remuneration for the referral of federal health care program patients. What, you didn’t realize that health services for Peace Corps volunteers are one of the covered programs? Oops. Felony time.

The sheer magnitude of the punishment, let alone being tossed out of further participation in federal health care programs, means that medical groups must take prophylactic steps to prevent, detect, and remedy compliance law violations. As in now. Before you get caught.

For example, every physician group’s (or health care entity’s) billing and coding operations, whether in-house or outsourced, should be audited on at least an annual basis, if not more often. And, every group must have an active compliance program, not just a “policy” or a “plan” kept in a three-ring binder designed to gather dust.

Let’s all go on a felony diet, starting today.

It doesn’t require much will power. You can get all the help you need.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

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Healthcare Freedom of Choice: Doughnuts and Doing Time

In a Wall Street Journal piece published in last weekend’s Saturday/Sunday Nov. 11-12, 2017, edition, Ezekial Emanuel, M.D. of the University of Pennsylvania and other pursuits, wrote of the “hype of virtual medicine.”

In particular, he cited studies that show that virtual medicine and high-tech health gadgets such as Fitbits accomplish nothing in regard to increasing patient compliance with doctors’ orders or to actually live healthier lifestyles. The same compliance problems that exist with regard to traditional medical encounters exist with regard to technological encounters.

The bigger issue is why he’s surprised at all.

People are free to do with their health what they want to do, and the simple fact of the matter is that many people don’t feel like complying with physicians’ “orders” any more than many physicians feel like complying with “compliance” laws.

It’s simply a fact of free choice.

Just as I wasn’t surprised when, several years ago, a corpulent physician suggested that I eat a second lunch in the physician’s dining room at the hospital “because the food is free,” I’m not that surprised when a group of hospital administrators thinks that an obviously defective and illegal kickback scheme is a perfectly valid business model.

Free choice in structuring healthcare deals, just as free choice in having that fifth doughnut, falls on a risk-reward-punishment continuum.

What’s Sally’s (the wife and mother) health risk when faced with the question of second glazed or fourth jelly? What’s Sally’s (now at her desk as hospital CEO) risk when faced with the question of entering into an undocumented financial arrangement with a referring physician, thus implicating Stark and the Anti-Kickback Statute? What’s Sally’s sister Sarah’s risk when faced with the question of entering her medical group into a deal with pharmacy owners and investors to telephonically prescribe pain creams to patients on a one-off, transactional basis?

Pleasure/money now, with some risk of diabetes/debarrment/detainment far off in the future. Or, maybe not so far off.

The issue of risk isn’t just the cold calculation of the chance of getting caught. It’s that chance times the intensity of the punishment. A 5% chance of 10 years in prison is riskier than a 60% chance of a $50,000 civil monetary penalty and being forced into a Corporate Integrity Agreement.

Of course, the scale that we use to measure risk isn’t fixed either, and some put an extra finger or even two on the side of the scale marked “it won’t happen to me.” But, then again, we’re also free to fool ourselves.

How else can you explain deals gone awry such as these:

Sweet Dreams Nurse Anesthesia agreed to pay $1,034,416 to the U.S. government and $12,078.79 to the the State of Georgia to resolve allegations that it violated (due to underling AKS violations) the False Claims Act and the Georgia False Medicaid Claims Act.

Specifically, they were alleged to have entered into arrangements with ASCs to provide the facilities with free anesthesia drugs in exchange for exclusive anesthesia agreements. They were also alleged to have agreed, through an affiliate, to fund the construction of an ASC in exchange for contracts as the exclusive anesthesia provider at that and a number of other ASCs.

MediSys Health Network Inc., the owner of Jamaica Hospital Medical Center and Flushing Hospital and Medical Center, both in Queens, New York, agreed to pay $4 million to the U.S. government to settle allegations that it violated (due to underlying Stark Law violations) the False Claims Act by engaging in improper financial relationships with referring physicians.

Specifically they were alleged to have have submitted false claims to the Medicare program for services rendered to patients referred by physicians with whom the defendants had improper compensation and office lease arrangements.

So, strap on that Fitbit and have the glazed, or give free drugs to the ASC, or provide free office space to the cardiac surgery group.

Hey, it’s a free country. Just remember that you’re free to suffer the consequences, too.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

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