REPORTING FRAUD AT YOUR HOSPICE
PROTECT THE PUBLIC AND THE HEALTHCARE SYSTEM
While many hospice professionals may not be aware of fraud
occurring at their hospice agency, others may be in a position to
see situations that just don't seem "right." When
you are informed about the regulations governing hospice care,
you will view the way patients and their families are treated in
a different light. Knowing the regulations, you will recognize
immediately when your agency steps across the line. Hopefully,
you will never have to deal with this situation, but others may
be confronting this type of situation right now.
The individual staff member most able to determine if fraud is
occurring in a hospice agency depends upon the type of fraud
occurring. Fraud related to an improper denial of required and
needed services would be known to the nursing staff, especially
the RN case managers. Fraud related to improper billing practices
may only be known to office staff in the billing departments.
Government investigators target intentional fraud,
not billing errors
Often, healthcare professionals will tell each other,
"Don't report this," or " don't make a
complaint about that [fraud] because if you do, the government
will shut down the agency and you'll lose your job." Is
this true? Well, how many hospice agencies do you know that have
been shut down in the USA? Name five. Can't? Well, name four,
or three or two. The fact is, the federal government is not in
the business of shutting hospice agencies down. They simply want
to stop agencies from fraudulently collecting money for services
or equipment they don't provide.
The U.S. Office of Inspector General reports that:
".... in recent years, both State and Federal
prosecutors have increasingly relied on civil remedies to achieve
a full resolution of health fraud cases."
- written by Frank Nahlik, Assistant Inspector General for
Investigation, Oversight and Support, (in the OIG June 2000
Annual Report on State Medicaid Fraud Control Units, page 42
available at: http://www.hhs.gov/oig/oi/mfcu/index.htm )
[emphasis added]
This means that if possible, the prosecutors are increasingly
accepting settlement payments where agencies pay back what they
fraudulently took from Medicaid or Medicare. The government may
require plans of correction to prevent the fraud from occurring
in the future, and certain individuals who were most responsible
may lose their position and face fines, but the government's
goal is not to shut down hospice agencies!
The federal government budgets money for health care services
to those who need it. The government doesn't want to pay
money to make white-collar criminals rich. Are hospice agency
administrators who commit white collar crimes
"criminals?" Certainly, and these administrators give
hospice a bad name, and cause untold suffering for the patients
and families who do not receive quality care.
So what is the policy of the federal government, in terms of
enforcement and investigations? Let's consider what the head
of the US Office of Inspector General says herself:
The following excerpt is taken from a letter to Mr. Dick
Davidson of the American Hospital Association, dated June 26,
2000, and written by June Gibbs Brown, Inspector General for the
Department of Health and Human Services of the U.S. The letter
addresses concerns related to hospitals, but the excerpts below
are general and apply to all healthcare agencies in the U.S.
".... First, as we have stated in the past, under the
law, ...[health care agencies] are not subject to civil or
criminal penalties for innocent errors, mistakes or even
negligence. The Government's primary enforcement tool, the
civil False Claims Act ("FCA"), covers only offenses
that are committed with actual knowledge of the falsity of the
claim, reckless disregard of the truth or falsity of the claim,
or deliberate ignorance of the truth or falsity of the claim. The
FCA simply does not cover mistakes, errors, or negligence. The
other major civil remedy available to the Federal Government, the
Civil Monetary Penalties Law, has exactly the same standard of
proof. The OIG is very mindful of the difference between innocent
errors and negligence ("erroneous claims") on the one
hand, and reckless or intentional conduct ("fraudulent
claims") on the other."
"When billing errors, honest mistakes or negligence
result in erroneous claims, the ... [health care agency] will be
asked to return the funds erroneously claimed, but without
penalties. In other words, erroneous claims result only
in the return of funds claimed in error. Nevertheless,
inadvertent billing errors are a significant drain on the
programs and all parties need to work cooperatively to reduce the
overall error rate."
".... providers need to be especially vigilant in
identifying erroneous claims. We believe an effective voluntary
compliance program can help ... [a health care agency] identify
erroneous claims, correct the underlying problems causing the
erroneous claims and ensure that any overpayments caused by such
erroneous claims are promptly returned to the Government. But
again, it should be emphasized that civil or criminal
penalty action will not be initiated for billing errors due to
inadvertence or negligence." [emphasis added]
"Should a question of improper billing ... , as in all
cases, in assessing whether there is sufficient knowledge to
trigger civil or criminal penalties, the OIG will look at a
variety of factors, including (1) the clarity of the relevant
rule; (2) the complexity and novelty of the billing system at
issue; (3) the guidance issued by HCFA [edit: now called Centers for Medicare Services (CMS)] and/or its agents (e.g.,
fiscal intermediaries); (4) the extent to which the provider has
attempted to ascertain an understanding of the relevant rule; (5)
the quality of the efforts of the provider to train personnel on
the billing system; and (6) whether the provider has an effective
compliance program in place. This list is merely illustrative in
order to give your members an appreciation for the kinds of
factors the OIG evaluates when investigating allegations of fraud
and should not be construed as an exclusive list of
factors."
"We hope that the foregoing has made it clear that
the OIG's law enforcement efforts are not directed
toward erroneous claims. Rather, they are focused on false or
fraudulent claims that are submitted with the requisite level of
intent or knowledge to trigger civil or criminal
penalties." [emphasis added]
"Should you have questions or need of further assistance
regarding this issue, please feel free to contact D. McCarty
Thornton, Chief Counsel to the Inspector General, at (202)
619-0335."
Sincerely,
/s/
June Gibbs Brown
Inspector General
The above excerpt is taken from a letter to Mr. Dick Davidson
of the American Hospital Association, dated June 26, 2000, and
written by June Gibbs Brown, Inspector General for the Department
of Health and Human Services of the U.S. The letter addresses
concerns related to hospitals, but the excerpts are general and
apply to all healthcare agencies in the U.S. Emphasis and
"[health care agency]" added.
Government prosecutors push for reimbursement,
not agency closure
So should hospice employees be fearful of reporting problems
at their hospice? Definitely not. Why? Because simple errors in
billing are not going to result in criminal charges being
brought. Even when intentional fraud occurs in a hospice, the
federal government simply orders the agency to pay back the
overbilled money. This has happened numerous times, and the
hospice agency continues to provide hospice care to the public.
The U.S. government is actively promoting the
availability of hospice services to the public.
The U.S. government does not want to shut any hospice down,
and they haven't made a practice of doing so. Anyone who
tells you they are going to shut the agency down is simply trying
to get you to keep quiet and become an accomplice to the fraud.
Did you know that if you have knowledge of fraud and don't
report it, you are liable for criminal charges to be brought
against you and your license?
Private insurance companies
seek reimbursement and cooperation
Fraud also occurs with respect to private insurance companies.
If the patient's private insurance pays for the hospice
services, the insurance company may be being defrauded. Each
insurance company has its own "Fraud Investigation
Units" which track down and find fraudulent claims by health
care agencies who are billing for services not rendered.
Fraudulent claims drive up the cost of health care insurance for
all of us, in addition to being illegal. Reporting health care
fraud to a private insurance company or the federal government
can help keep health care costs down for everyone. When private
insurance companies discover fraud, they normally seek a
settlement with the hospice agency and simply require that the
agency pay back the money fraudulently taken. It is rare for
prosecutions to occur. Doubt that? Name one hospice agency
prosecuted for defrauding a private insurance company. Hasn't
made the news because hospice agencies settle behind the scenes
when they're caught.
Employees are used as scapegoat
When agency fraud discovered
It is important to remember that it IS the practice of
hospice agencies to blame the employees whenever the agency
gets caught in a violation of standards or laws. If
you want proof of that, request a copy of State inspection
reports for any hospice that has been cited for violations of the
standards of care (many have). You will always read that the
hospice agency's plan of correction involves
"re-education" and "increased training" for
employees so that violations do not occur again.
You will never read that the hospice agency states it will
"re-educate or "re-train" the hospice top level
administators themselves, because the hospice administrators will
never admit officially that they themselves were the originators
and perpetrators of the fraud!
Risk Management Departments
Ever wonder what "risk management department"
managers do? Seem to be a "mysterious" bunch? Well, if
you feel that way, you're not alone. Risk managers do just
what the name implies: manage risk. But they manage risk to the
hospice agency, not to the hospice employee. For example, many
health care employers tell their employees, "we have company
insurance for malpractice liability" so if any problem
arises, our attorneys will take care of the case...you don't
have to have your own health care liability policies."
Agency Malpractice/Liability Insurance
Protects the Agency, Not You
Well, guess what? Any time there is a serious risk of legal
liability for a hospice or other healthcare agency, (due to fraud
or malpractice) the agency will look for a scapegoat. Employees
who commit serious errors or who can be blamed for serious errors
that occur, are often terminated from employment. Then the
agency's liability policies/attorneys protect the agency, not
the former employee. That's the point to
remember, if there's a major problem and the agency chooses
to blame you, you will be the former employee,
not a current employee.
So the liability/malpractice insurance for the agency may not
cover your actions. The agency attorneys (insurance company
attorneys as well) will protect the agency, whatever it takes,
because that will save the insurance company and the agency lots
of money. They may act to protect you if it is in the
agency's best interests to do so, but if they do so, it will
not be motivated by real concern about you. Actions taken in the
"crisis" of being caught in fraud will be motivated
totally by business considerations, i.e., what will save the
agency the most money and reduce any other risk to the agency.
Health care agencies have even been known to defend a malpractice
case involving an employee and then turn around and sue their own
former employee as the scapegoat to get the money back, and if
you don't have your own insurance, then the bills could force
you into bankruptcy, personally. The nursing journals often
mention stories where employers did not stand behind the nurse.
Make sure you don't become the scapegoat for your hospice
agency.
You may ask, what happens if you have your own
malpractice/liability insurance covering you and you alone? Well,
the insurance company has its attorneys act to protect you so
that the insurance company doesn't lose money on a settlement
or judgment against you. Having your own malpractice/liability
insurance gets you an attorney focused solely on what will reduce
the loss to the insurance company and that translates into
looking out for your best interests. However, it should be noted
this type of insurance normally does not cover fraud or any
criminal acts, so that if you are made the scapegoat and the
insurance company believes you did commit fraud or were involved,
they may not cover you or help you as expected.
Another concern some health care professionals have is that
the insurance company may settle the case rather than going to
trial, because it thinks that it will save more money by settling
than by going to trial. If that occurs, a settlement is made and
you have to live with that on your record. Doctors who get sued
often have their malpractice insurers telling them to settle out
of court and exert tremendous pressure on the doctors to settle,
even though many times the doctor believes that he or she did
nothing wrong. So there are different sides to the issue. If you
have serious questions about these types of issues, it is
advisable to contact a competent attorney for guidance.
The surest way to reduce "risk" to a hospice agency
(after a problem or fraud is discovered) is to find a hospice
employee to blame, someone who knew what was going on and was in
a position to report it or stop it. The administrators won't
mention that they themselves steered the employee in the
direction of committing fraud; they're not that foolish. And
do administrators outright "tell" employees to commit
fraud? If they can do so, they will avoid telling the employee
directly to commit fraud; really clever white collar criminals
will instead maneuver employees into committing fraud for them,
sometimes by misinforming them, or by telling them half truths.
They will create the impression that committing fraud will
benefit the agency and agency's mission. They may tell them
that what the employee is doing is "perfectly legal"
.... "we've checked this all out with the agency
attorneys, and they assure us that this is perfectly
legal."
However, if the agency is caught and an employee is
questioned, if an employee tries to defend herself and states
that, "they told me to do it" the administators will
always deny it. Guaranteed! Who's left holding the bag, so to
speak? ... the employee, of course.
So, you're not doing yourself or your family any favors by
keeping quiet when you know about fraud. Ever hear of a health
care professional getting their license yanked? It does happen,
especially if a crime is involved. But have you ever heard of a
hospice nursing manager or administrator losing her license? Let
us know if you have, because we haven't. State Boards of
Nursing will "go after" the lowly nurse who provides
the care to the patients, but will block any attempt to have a
nurse manager disciplined. Employees have lost their license and
their jobs in such cases, while the agency and its nurse managers
got off lightly with no serious consequences at all.
If you keep quiet when fraud occurs, you're betraying the
very patients and families the hospice is supposed to serve.
Fraud increases the financial burden of health care to every
citizen of the U.S. And who benefits? The rogue administrators
and corporate owners (for-profit corporations) who pay themselves
handsomely when they live it up at the expense of the dying while
the rest of society pays for that fraud.
Qui Tam Claims Enable You to Collect
A Reward: A Percentage of Money Recovered
You should also know that the government provides a very
substantial reward to whistleblowers who help the government get
their money back. If you report to the government about fraud at
your employer and the government recovers the funds, you are
entitled to a percentage of the money that you helped the
government get back. However, in order to get that reward, you
need to file what is called a "qui tam" claim using an
attorney expert in such claims to guide you. You can find more
information on "qui tam" claims at
http://www.quitam.com or search for "attorneys" and
"qui tam" on the internet.
Reporting violations of the regulations or law by the hospice
you work at can be a difficult step for an employee to take. Yet,
if you wish to live with a clear conscience with regard to
society and to your patient care responsibilities, it may be
necessary. Every single patient and family you deal with expect
you to be truthful and to protect their best
interests. If you were the patient, wouldn't you
expect honesty and integrity from those who take care of you?
You can find information on how to report serious health care
fraud below:
When hospices defraud the federal Medicare Program:
When hospices defraud the State Medicaid Program:
State Medicaid Fraud
Control Unit Addresses
When hospices defraud Private Insurance Health
Plans
or Managed Care plans, you can contact the private insurance
company directly and ask for the address or telephone number of
their "Fraud control unit," or call the National Health
Care Anti-Fraud Association (NHCAA) at 202-659-5955 and ask them
for the address and telephone number. You can also ask NHCAA for
the telephone number and address by e-mail at: fraud@nhcaa.org. They are not set up
to take the actual complaint at their site, but can give out the
individual addresses and telephone numbers you need to report
fraud committed by a hospice against a private insurance company.
Their website is located at: www.nhcaa.org.
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