Steven I. Kern, JD

An allegation of fraud can significantly affect all aspects of a physician's practice. Not only will the physician risk loss of license if the allegation can be proven, but the allegation alone may be sufficient for a malpractice carrier to deny coverage renewal or impose a significant increase in premium. After all, if he or she is sued for malpractice, the physician's credibility almost always is at issue. If the physician is found to have committed fraud, a jury could well conclude that the physician could be dishonest in all aspects of practice. 

In this column and three subsequent columns, I will highlight current laws and provide guidance on how best to avoid allegations of fraudulent practices. Before addressing any particular law, however, it is important to understand the meaning of healthcare fraud and its growing importance as a national issue. 

The government need not prove that the physician intended to submit a false or misleading claim. Rather, the government only needs to demonstrate that a claim was submitted "knowingly" or with "reckless disregard" for the way in which claims are prepared or submitted, even if the physician is unaware of the fact that the claim was false. Alternatively, the government can show "deliberate ignorance" of billing practices. Given these reduced levels of culpability, the old excuse that "the billing department handles that" no longer is sufficient to avoid prosecution. 

Although much of healthcare fraud may be intentional, a large percentage of it relates to miscoding of claims. Given the complexity of the CPT coding system, this fact is not surprising. 

Until recently, the usual remedy for miscoding was little more than paying monies back, if audited, perhaps in recognition of the high error rate throughout the physician community. Now, however, miscoding can lead not only to reimbursement of overpayments but also to civil penalties, loss of license, and even criminal charges Last year alone, the federal government recovered $1.6 billion in healthcare fraud-related settlements and judgments through the False Claims Act (FCA), its most important weapon in such cases. With the recent enactment of the Fraud Enforcement Recovery Act of 2009, the federal government now has even greater tools to combat fraud, waste, and abuse. 

A significant source of information concerning healthcare fraud comes from past or present employees who become "whistleblowers." By bringing a complaint of fraud on behalf of the government - called a Qui Tam action - a whistleblower can receive 15 to 30 percent of any recovery. In 1988, Qui Tam settlements and judgments constituted less than 2 percent of total FCA cases. By 2008, 63 percent of FCA recoveries resulted from Qui Tam actions. In a future column, I'll discuss methods to reduce the risk of an employee turning against you or your practice. 

consultant Steven I. Kern, JD, is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, New Jersey; Lake Success, New York; and Philadelphia. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to 

Articles

With healthcare fraud now estimated to be a $100-billion-a-year enterprise, the federal government has developed new tools to aggressively pursue fraud.

Viewpoint: Intent not part of healthcare fraud finding

 Is it legal to withhold the medical records of a patient who has an outstanding account balance?

 As with most medical records-related issues, this one is state-specific, so the answer is, it depends. The states, as always, vary. Generally, however, if the record is needed for purposes of treatment, then it must be turned over. If the record is not needed for purposes of treatment, then you may be able to withhold the record pending payment of the patient balance, as if you had a lien on the record. 

Get your questions answered on handling an outstanding account balance.

Q&A: Withholding medical records

As politicians run for cover, the New Jersey courts, responsible for many of the nation's leading right-to-die cases, may again plow into this politically and emotionally charged territory. The matter currently before a state appeals court involves a 73-year-old man in a moribund, permanent vegetative state, who requires dialysis several times a week. The only thing prolonging biological life is the medical care he receives.  

The patient's treating doctors sought to discontinue dialysis but the family objected, so the doctors pursued a court order allowing them to discontinue treatment. At a hearing, the doctors testified that continued treatment was both futile and contrary to accepted standards of care. The family produced a physician-expert who testified that, essentially, the standard of care required physicians to provide any care requested by the family. The trial court ruled for the family, concluding because it desired all possible avenues of treatment to be pursued, there were no circumstances that would justify withholding even treatments deemed inappropriate. 

Given the AMA's position, it appears impossible to base end-of-life decisions on the concept of futility. However, physicians must be able to exercise their judgment, in consultation with medical experts or hospital committees, to determine when care is appropriate and when respect for life warrants cessation of treatment.  

Decisions of this magnitude can be resolved if they are left to physicians and are based upon recognized standards of care, and due consideration is given to the wishes of the patient or his representatives. We can also be assured that the family can resolve any disagreements regarding what constitutes appropriate standards of care by choosing physicians who are willing to honor their wishes. Only when there is uniformity of opinion that the treatment sought deviates from accepted standards of practice will the wishes of the family remain unfulfilled.  

When all physicians agree, neither the courts, government bureaucrats, nor insurance companies should reverse those decisions. 

				
				Do you have an assisted-suicide plan? Find out why it's important at 

Consultant Steven I. Kern, JD, is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, New Jersey; Lake Success, New York; and Philadelphia. He can be reached at 

Malpractice Consult deals with questions on common professional liability issues. If you have a general question or a topic you'd like to see covered here, please send it to 

Efforts to thwart the increasing costs of healthcare cannot succeed without addressing the question of how much care to provide the terminally ill.

End-of-life care: Who decides when to pull the plug?

Are doctors required by their contracts with insurers to write letters at patients' request, even when the doctor believes the request is frivolous? For example, a patient called us after he'd taken a week off work and asked us to write his employer a letter saying the time off was medically necessary, even though he'd never even called us or come into the office prior to taking the time off. If we do write these letters, can we at least charge patients for our time spent writing them?

Generally, the cost of writing letters is not included as a covered service under managed care contracts. As such, you're free to decline to write letters that you deem medically unnecessary, and you can separately bill patients for time spent writing most letters. There may be certain exceptions, such as when the letter is related to filling out insurance forms. Otherwise, school and camp clearance, work evaluations, etc., are generally not covered. Of course, charging for a two-sentence, handwritten note is not necessarily a good business decision. By contrast, drafting a five-page report is certainly a reimbursable service.  

Generally, the cost of writing letters is not included as a covered service under managed care contracts.

Author | Steven I. Kern, JD

Articles

Viewpoint: Intent not part of healthcare fraud finding

Q&A: Withholding medical records

End-of-life care: Who decides when to pull the plug?

Q&A: When patients request 'frivolous' letters