October 9, 2012
   For those unaware, a war is being waged against Medicare providers.  The government is no longer interested in reimbursing you, or interested in allowing you to retain monies you have already been paid (despite the fact that you have paid taxes on such amounts and utilized same for overhead, etc.).  How are they going about withholding reimbursement and recouping what has already been paid?  Simple: the hunt for fraud, which is being conducted by all government agencies AND MORE - CMS had authorized third party contractors to work off of commission to hunt down fraud of all types, including activity that may not necessarily constitute fraud with a criminal intent, but where providers are billing for services that may not meet CMS's determination of medically necessary care (regardless of the treating practitioner's opinion).  Some of your colleagues are facing audit activity moreso than others.  For instance, Chiropractic seems to be getting hit particularly hard, as well as PT.  The Affordable Care Act has given the government more teeth in this fight, actually authorizing the withholding of future payments where "credible allegations of fraud" exist.  The language approved, now housed in the Social Security Act (cut and pasted below) allows payments to be suspended "pending an investigation of a credible allegation of fraud".  Guilty until proven innocent.  How the government expects practitioners to pay for defense or living expenses during a costly investigation and audit process, I can't comment on.  I will mention that you should take this opportunity to ensure that your malpractice carrier has a rider covering you for Medicare audits - most malpractice carriers offer this for a minimal additional premium - I recommend that you obtain same if your policy does not cover you.  If you do receive an audit letter, contact  your attorney and your carrier, or have your attorney contact your carrier.  You do not want coverage disclaimed for late notice.   

Under the current regulatory framework, the provider is clearly David fighting the bureaucratic Goliath of CMS, with the support of government (and tax payors) behind it.  The intent of this article was to forewarn that operating in a non-compliant manner - with kickbacks, referring for DHS inappropriately, operating without contracts, operating without policies and procedures, operating without proper documentation, operating without maintaining proper documentation, etc., leaves you and your practice incredibly exposed. And, while  you may think being the target of a federal investigation would/could never happen to  you, it is happening right now to colleagues of yours who arguably ARE NOT criminals, do not and have not had criminal intent; they may not have operated as transparently as possible, they may have had a sloppy biller or improper documentation.  Operating improperly is entirely preventable, but basically impossible without assistance.  You did not attend law school and you do not have time to stay abreast of the thousands of regulations impacting your practice.  The first step you have taken is reading this newsletter, which is a step in the right direction.  The next step is asking for assistance if you believe you need it; do not leave yourself and your practice exposed.  Call for a compliance evaluation if you think  you may be operating non-compliantly. 

(o) Suspension of payments pending investigation of credible allegations of fraud.
   (1) In general. The Secretary may suspend payments to a provider of services or supplier under this title pending an investigation of a credible allegation of fraud against the provider of services or supplier, unless the Secretary determines there is good cause not to suspend such payments.
   (2) Consultation. The Secretary shall consult with the Inspector General of the Department of Health and Human Services in determining whether there is a credible allegation of fraud against a provider of services or supplier.
   (3) Promulgation of regulations. The Secretary shall promulgate regulations to carry out this subsection and section 1903(i)(2)(C) [42 USCS § 1396b(i)(2)(C)].

42 USCS § 1395y