What is the Purpose of a Compliance Program?

There are a number of purposes for developing a compliance program. One, to maintain (even enhance) the quality of care you and your team provide. By having written standards there is a clear communication what you expect of your employees. For your employees there is safety (comfort) in knowing what is expected. Just because you think your employees know and understand your expectations does not mean this is true.

It is essential you and your employees demonstrate a sincere and ongoing effort to obey the law – all of them. There are hundreds of laws that affect dentists and their practices and they some them are changing, so over time something is always changing. How do you currently keep up? Is a discussion over a bottle of wine at your study club your source for information? How do you know your colleagues there have the correct information? Chances are they do not have all the facts or they heard a rumor from another colleague. Are you willing to stake the health and success of your practice on gossip, rumor or collegial chitchat? Dangerous!

A compliance program should empower you and your dental team to prevent, detect, and resolve conduct that does not conform with applicable laws and rules, which can prevent punitive fines and penalties, sanctions, harm to your professional reputation, financial harm due to expensive legal fees, loss of production time, loss of license, even the loss of your freedom.

Why the later? Well, typically a compliance violation unrecognized and/or unaddressed over a substantial period of time can result in the government’s successful claim that you are criminally liable for your (or your employees’) actions or inactions. Are you willing to lose everything over a series of repeated mistakes?

Just ask Dr. Michael Goodwin. In 2013 the Amarillo (TX) orthodontist, like other dentists convicted of criminal Medicaid fraud, was convicted and sent to prison (in part) over a credentialing and billing issue whereby claims were submitted under Dr. Goodwin’s credentials for work completed by his associates. When investigators and prosecutors constructed a timeline of his work, based on submitted claims to multiple payors, they were able to prove that Dr. Goodwin did not perform work at more than one location at the same time as the claims indicated. Each claim form had a stamped signature indicating the claim was ‘true’ and ‘correct’, which (ultimately) they were not. Those erroneous claims were treated as false claims, which left him liable for fines and penalties under the False Claims Act.

As the Captain of the (proverbial) ship, in audits and investigations (and subsequent legal actions) it is presumed that you either knew or “ought to have known” about any issues/ violations. Further, it is expected that you should have corrected the issues/ violations. Additionally, when the corrections do not occur in a timely manner it is easy to convince a jury that you intentionally committed fraud. All it takes is one count to secure a conviction. It is my experience that government prosecutors seldom seek convictions on multiple counts of healthcare fraud when just a dab will do (though this is not always true).

It is far more appealing for prosecutors to demonstrate to a jury that a dentist perpetrated one act of fraud in cahoots with other persons (organized crime) and tag a dentist with RICO violations, money laundering and other juicy sounding charges. However recent enforcement trends reveal that prosecutors are less likely to pursue a criminal case in favor of excluding dentists from participation with Medicaid (we will talk about this in detail in a later article) and by burdening dentists with heavy monetary penalties that will likely hand a dentist a sentence to death by handpiece as they work well into their golden years to repay a civil settlement with the government for what amount to mistakes

Going forward I tell you it not just foolish, rather insane, for any dentist to continue practicing without compliance as a priority and focal program for their practice. The Federal Sentencing Guidelines in recent years have increasingly given credence that a “reasonably effective compliance program” deserves “due regard and consideration”.  

Let me restate this for you. The judicial system is telling you, in black and white, that it is your best interest to make compliance a priority in your dental practice AND they have given you instructions to meet their criteria (nearly identical to the 7 core elements as outline by the Office of the Inspector General that I have outlined in recent articles). Additionally, they have given you a humongous carrot in that the FSGs can reduce fines and penalties by up to half. That’s like getting a coupon or discount if you get busted for making a mistake if you make a concerted effort to do the right thing, but miss the mark.