More Surprises from the Affordable Care Act

ACA section 10606(a) affirms the applicability of the Federal Sentencing Guidelines, which I previously discussed.  Additionally, in 10606(b) states, “With respect to violations of this section (Healthcare Fraud), a person need not have actual knowledge of this section or specific intent to commit a violation of this section.’’ Let this simmer for a second…

To restate the previous paragraph if it occurs whether you know about it or not and whether you mean to claim payments you are not entitled to (called an overpayment) you can be found guilty of a crime – for your or your staff’s mistakes. Now this does not mean the government will be looking to arrest, try and convict dentists and their staff for making mistakes, but it does not mean they are not equipped to do so when the deal necessary.

What to do? Well, perhaps Santa Claus is a good example for dentists to follow – make a list, check it twice, find out who’s naughty or nice and come to town. In case I lost you with my strange, but festive, analogy I mean you need to make a list of what you are doing right, what you are doing wrong, make corrections where corrections are due. Check your progress and actively supervise and train your staff. Weed out employees who cannot perform their jobs correctly. Be present (mentally and physically) in your practices. You need to be involved and know what is going on. Sadly, too many dentists supervise by abdication. If you are determined to play Russian roulette at least do so with a water pistol.

ACA section 10606(a) also states, “the aggregate dollar amount of fraudulent bills submitted to the Government health care program shall constitute prima facie evidence of the amount of the intended loss by the defendant”. Errors on claim forms amount to fraudulent claims for payment, which are subject to treble plus fines up to $11,000 per claim under the False Claims Act (FCA). What this means is mistakes can cost you repayment of three times the amount of each claim, plus fines up to $11,000 per claim.

Incentive to ‘do-the-right-thing’, identify your own mistakes and return overpayments is this. Identify and return overpayments on your own within 60 days of the discovery of the overpayment and you will not typically trigger the False Claims Act, which means dollar for dollar repayment of monies paid that you did not earn as opposed to triple repayment plus penalties. I am no mathematician, but this is a substantial savings let alone the legal fees you would accrue fighting a FCA allegation.

What this may look like it this:

·      Duplicate billing for services

·      Billing for services not provided (do you actually have every radiograph you billed for AND are they diagnostic quality AND is there clear supporting documentation to indicate that you interpreted the radiographs)

·      Billing for services using an inaccurate date of service

·      Identifying the incorrect provider of care (billing provider vs. treating provider)

By now you should see that a compliance program is not necessarily about finding deliberate and intentional fraud (criminal actions), but about quality control, accuracy and correcting your own mistakes. How will you accomplish this?

The best time to implement a compliance program was yesterday. The next best time is today. Better get going.