Compliance programs should keep a sharp eye on all communications

Every word written or spoken in connection with a health care practice presents the potential for risk. At a Wolters Kluwer webinar entitled, Health Care Communication Risks—From a Compliance Perspective, two presenters pointed out various areas of concern and ways for compliance professionals to approach them. Robert Liles, managing partner at Liles Parker PLLC, and Paul Weidenfeld, chief legal officer of Exclusion Screening LLC, spoke from years of experience on topics such as criminal issues, administrative concerns, employment, and documentation.

Text messages

The presenters noted that smartphones, while convenient, have caused countless compliance issues. Communications as seemingly private and innocuous as a text message present a significant risk, as law enforcement can easily obtain information about texts that a service provider might tell a customer is unavailable. One example offered in the webinar told of a dentist who extracted a tooth from a sedated patient while on a hoverboard, then texted a video of the event to a friend; another example came from an office manager who texted her mother to tell her of pulling two teeth from a sedated patient.

Exam recordings

Many states have one-party consent laws for recording communications, and in such states only the party taping the conversation needs to know that it is being recorded. In these states, a patient might record a physician during an appointment or procedure without obtaining the physician’s permission. Such recordings can be used in malpractice cases, such as a recent case during which a physician made disparaging comments during a colonoscopy, before which a patient had started recording the procedure on his phone. The presenters suggested posting specific policies concerning such recordings, recommending language that prohibits use of recording devices unless specifically permitted by the provider.

Reducing risk

The presenters spoke of the seven elements to an effective compliance program identified by the HHS Office of Inspector General:

  • implementing written policies, procedures, and standards;
  • designating a compliance officer and committee;
  • conducting effective training an education;
  • developing effective communication;
  • enforcing standards;
  • conducting internal audits; and
  • responding promptly to detected offenses and developing corrective action.

One important piece of a program is a compliance hotline to allow employees an opportunity to report compliance issues. Employees should be able to do so anonymously, but also be able to provider his or her name with confidence in the organization’s confidentiality. Employees must be assured that they will not be retaliated against for reporting issues in the organization.

Hospital compliance programs need to integrate explanted device policy

Medicare requires that explanted medical devices—implantable devices that are removed due to recall, advisory, malfunction, failure, or early battery depletion—must be pursued by the provider as for free replacement or reduced charges under warranty. The failure to do so results in an overpayment for the provider or hospital, which must then be repaid to CMS. In a Health Care Compliance Association (HCCA) webinar, Jesse Schafer, Explant Control Manager, Mayo Clinic, and Peter Casady, CEO and Co-Founder, Champion Healthcare Technologies discussed best practices for medical device warranty credit failures and related HHS Office of Inspector General (OIG) audits.

Since 2010, the OIG has conducted six audits specifically for credit failures on medical device warranties, and found overpayments ranging between $30,000 and $300,000. In these cases, the warranty credit failures occurred because the hospitals:

  • did not pursue available credits;
  • did not report credits received;
  • did not have adequate internal control procedures to coordinate functions among various departments; or
  • relied upon the vendor to manage the device return and credit process (and gaps resulted).

Schafer recommended a workflow among various departments, including compliance, coding, clinical, pathology, supply chain / contracting logistics, accounts receivable, and patient financial services. Hospitals should (1) identify explanted devices that are eligible for warranty credits due to performance issues; (2) secure eligible explanted devices; (3) make sure the devices were returned to the vendor for warranty claims; (4) follow up on warranty claims to confirm approval; (5) make sure the provider then received credit or a no-charge replacement; and (6) adjust claims for credits that are greater or equal to 50 percent.

CDC urges providers to consider risks of opioid treatments

Although opioid prescriptions declined for five years since a peak in 2010, the Centers for Disease Control and Prevention (CDC) found that the highest-prescribing counties dispensed six times more opioids per resident in 2015. The CDC urges providers to consider evidence-based guidance for opioid prescriptions and weigh the risks and benefits of such treatment with patients.

Demographics

According to the CDC’s Vital Signs report, a breakdown of the number of opioids prescribed per person in 2015 by county revealed considerable variation, with clusters of high-rate counties located in various places across the country. The CDC believes that the variation reveals inconsistencies among providers who prescribe opioids. Counties with higher prescribing tended to have small cities or large towns, more white residents, more dentists and primary care providers, a higher rate of uninsurance or unemployment, and more people with a chronic condition like diabetes or arthritis, or a disability.

Issues

The CDC identified three specific issues with high prescribing that pose risks for patients. In 2015, there were enough opioids prescribed to keep every American constantly medicated for three weeks. This level of prescription may indicate that providers need to consider more non-opioid treatment options, such as physical therapy and other medications, and only use opioids when the benefits are most likely to outweigh the risks.

Even for those on low doses, taking an opioid for more than three months increases a patient’s risk of addiction 15 fold. When treating acute pain, opioids should only be prescribed for the expected duration of severe pain. In addition, a dose of 50 morphine milligram equivalents (MMEs) or more per day doubles a patient’s risk of overdose death. The CDC believes that the average daily MME per prescription remains too high.

Resources

The CDC recommends continuously balancing risks and benefits throughout opioid treatment, from the starting prescription through dosage increases. The agency’s Guideline for Prescribing Opioids for Chronic Pain outlines when a provider should initiate or continue opioids for chronic pain, treatment options, and risks and harms of opioid use.

Fraud perpetrators receive lengthy prison sentences for false claims, kickbacks

Two health care fraud scheme perpetrators in separate cases successfully prosecuted by the Department of Justice (DOJ) have been sentenced for their crimes. A physician who accepted kickbacks and committed tax fraud received a sentence of seven years in prison. A Detroit medical biller received a sentence of 50 months in prison for her role in billing $7.3 million in fraudulent claims to Medicare and Medicaid.

Physician

A Pennsylvania physician was sentenced to 84 months in prison with three years’ supervised release, 60 months of which run concurrently with a sentence imposed by a Florida district court. The DOJ presented information to the court showing that the physician, who practiced anesthesiology and pain management, owned and operated pain management clinics. The physician conspired to receive kickbacks from a drug testing lab in exchange for referring patients to the lab, totaling over $2.3 million. Medicare and Medicaid paid the lab over $4.5 million based on the physician’s referrals. The physician also failed to remit employment taxes for a corporation of which he was a 100-percent shareholder.

Medical biller

At trial, the DOJ showed that the medical biller submitted fraudulent bills on behalf of a physician for services that she knew could not have been rendered or were not rendered as billed as part of a $7.3 million fraud scheme. She received 6 percent of the total billings received from Medicare. She was sentenced to 50 months in prison with one year of supervised release and ordered to pay restitution of $3.2 million jointly and severally with co-defendants.