This week, Medicare released the payment amounts received by over 800,000 medical professionals. This unprecedented move has created a lot of controversy, both regarding potential salaries of health care providers and the fact that such data does not tell the full story. In reality, the release of this data creates increased risk to patients, hospitals, and practitioners.
Patients across the country now having access to payment amounts is not itself a bad thing. Transparency is certainly an admirable objective for everyone. As CMS Administrator Marilyn Tavenner notes, "[d]ata transparency is a key aspect of transformation of the health care delivery system." I believe most would agree; however transparency lacking context can be a dangerous combination. For example, the data does not actually give insight into personal income, the fact that a group's practitioners may bill Medicare under a single National Provider Identifier number, or that the data is not indicative of quality.
From a hospital and practitioner view, these issues should certainly be concerning. However, the real risk of transparency lacking context rests upon the False Claims Act (FCA). The FCA originally was enacted during the Civil War to deter government contractors from taking advantage of the United States need for supplies and commodities during war time. A century and a half later, the FCA is consistently used as a method to deter health care fraud. For example, the Justice Department has recovered $17 billion since 2009 under the FCA.
A FCA risk can arise for hospitals and practitioners in two different scenarios. First, if a person knowingly submits a false claim or causes another to submit a false claim or knowingly makes a false statement to get a false claim paid by the government. Second, if a person acts improperly to avoid having to pay money to the government. In a nut shell, FCA liability can arise for services billed to the government but not provided, retention of overpayments, and possibly for common billing errors. The government also includes as false claims the failure to submit documentation supporting the claim billed even if the service was provided and was medically necessary.
The real risk is that under the FCA, individual whistleblowers can file lawsuits alleging false claims on behalf of the government. In fact, in 2013 alone whistleblower lawsuits under the FCA recovered nearly $3 billion, with the whistleblowers recovering $345 million. Since the data has been released, numerous attorneys and other whistleblower organizations have begun to mine the data for clues to fraud.
Hospitals and practitioners should take a proactive approach to limiting these risks. First, ensure internal reporting is occurring within your organization. Employees often become whistleblowers due to the fear of retaliation by the employer for reporting compliance issues. Second, review the current data provided by CMS to ensure it is correct. If it is not, audit your own records and make a note regarding any outliers. Third, ensure timely and accurate submission of data to support the claim billed. By highlighting potentially problematic areas, your organization can investigate and fix any issues moving forward. Finally, ensure education is occurring in your organization. This includes educating board members, executives, managers, and practitioners on these risks.
Although the jury is still out on the impact this release of data will have, it is certain to increase liability for health care organizations and practitioners. If you have any questions about the False Claims Act, or Compliance, please feel free to contact Robert A. Wade at (574) 485-2002 or Alex T. Krouse at (574) 485-2003.