Joshua Berman, JD
Urologists hear quite a bit about risk from the legislative and regulatory angles. But they should also be aware of a third risk arena: the enforcement side, said attorneys from Katten Muchin Rosenman in Washington, DC, during a presentation at the 2014 LUGPA Annual Meeting in Chicago.
Howard Rubin, JD, LUGPA’s legal counsel for the past 5 years, addressed some of the triggers that can bring heightened scrutiny on a practice, especially in light of recent examinations of healthcare spending, including US Government Accountability Office (GAO) reports on overuse of services.
Joshua Berman, JD, said the scrutiny has intensified in scope and method.
“They’re coming to your door, they’re coming to your houses…They’re coming to speak to your professional staff, not just physicians,” Berman said. “This is a highly orchestrated strategy from the Justice Department.”
Rather than focusing just on hospitals, the scrutiny is trickling to the individual practice level in an effort to find HIPAA violations, data breaches, and Stark law payment and referral violations, he said. These inquiries come from agencies including the FBI, the Federal Trade Commission, the Department of Health and Human Services, the IRS, and state and local licensing agencies.
Investigators may approach staff who don’t necessarily know which information they should disclose, so training is important, the attorneys said.Be Proactive
Too often, physicians are reactive when, had proper procedures been in place, problems could have been averted, said Glen Donath, JD.
One area that can lead to trouble is inadequate internal practices for resolving disputes, he said. That’s problematic because, without those practices, disputes tend to get communicated through emails and documents. When people feel there’s no process in place for venting their concerns, that can create acrimony and tension and motivate whistleblowers, Donath said.
Many practices also lack a clear compliance plan, or created one years ago and haven’t reviewed it since. In making a case against a practice, prosecutors can point to a compliance plan that staff may not know about or follow.
Rubin urged the group gathered at the Drake Hotel to prioritize finding their practice’s compliance plans and reviewing them with staff. “We can’t emphasize this enough,” he said.
Another important document to locate and review is a practice’s document retention plan.
“When an investigation or a subpoena happens, the first thing the government attorney or prosecutor asks for is a copy of that plan, because that indicates the desire to be compliant,” Donath said.
A document retention plan allows for regularly scheduled deletion of and purging of nonessential emails. That means it allows for the deletion of “ticking time bombs,” or ill-advised emails about compensation or profit and revenue projections that, in the wrong hands, could be used against a practice, Donath said.
But it’s not just electronic communication that can get a practice in trouble, Berman said. An investigator can pull aside someone from a billing department, or another non-physician, who might share information inappropriately if disclosure policies aren’t in place.Some Solutions
The attorneys summarized best practices in the event of an investigation:
Make sure you have a written document retention plan. Investigators will ask both whether the plan exists and whether it’s being followed. “What you don’t want is investigators coming with one set of questions and all of a sudden morphing into a much more aggressive investigation,” Donath said. He noted that a practice being investigated must suspend any deletion of documents. The length of time for keeping documents varies by practice, but 30 to 45 days is common.
Educate your staff, starting with the receptionist or the first point of contact, on protocols in case an investigator comes knocking. Let these employees know their rights regarding speaking to investigators, and make the name and contact information of the practice’s legal counsel widely known at all affiliated offices and surgery centers.
Have a media plan in place. If a member of the media calls, who is authorized to speak and how are those requests handled?
Rubin said that, in this environment of heightened scrutiny of individual practices, a disgruntled former partner or employee can bring a false claim and find the government particularly willing to listen.
“Market competitors are writing letters to the US attorney’s offices trying to gin up issues,” he said. “I wouldn’t have said this a year ago.”