The issue of Fraud and Abuse is an important topic and most are aware the government has their eyes on the Anesthesia profession. Anesthesia providers must be very familiar with these concepts.

Fraud is an intentional action that results in a benefit to the perpetrator. The intention must be present for an action to be found to be a fraudulent activity. In healthcare that is usually found with intentionally submitting claims for reimbursement for services that weren’t rendered or were not given in the manner claimed. A violation of the anti-kickback statute that results in reimbursement to the group can result in a false claims allegation by the OIG.

Other actions can lead to allegations of false claims such as retention of overpayments, billing for services not provided or medically unnecessary, or up coding a claim, which uses a higher code than that which indicates the service rendered. An example of up coding is using a code with a higher amount of base units than that performed. Unbundling services breaks apart elements into separate items of a service that is reimbursed as a bundle. There have been cases where an anesthesiologist unbundled provision of oxygen and basic monitoring from basic anesthesia care to bill for them separately.

Other actions can lead to allegations of false claims such as retention of overpayments, billing for services not provided or medically unnecessary, or up coding a claim, which uses a higher code than that which indicates the service rendered. An example of up coding is using a code with a higher amount of base units than that performed. Unbundling services breaks apart elements into separate items of a service that is reimbursed as a bundle. There have been cases where an anesthesiologist unbundled provision of oxygen and basic monitoring from basic anesthesia care to bill for them separately.

Examples of fraud that show intent to defraud include: documenting a service that did not occur, upgrading the physical status, submitting documentation for reimbursement that you know is not correct and creating false documentation to support a higher level of service.

Abuse

The term abuse means practices that are not consistent with medical, business or financial standards that result in waste of funds for reimbursement. It is usually used in association with fraud.

Some examples of abuse are billing non-covered services as covered services, reporting duplicate charges on a claim, charging excessively for services, and improper billing that results in payment by a government program when another payer is responsible.

It is important to be aware of the rules to prevent claims of Fraud and abuse.

A Criminal Law

The Anti-Kickback Statute is a criminal law that prohibits the knowing and willful payment or “remuneration” to induce or reward patient referrals. ?It also applies to ?the generation of business involving any item or service payable by the Federal health care programs. Remuneration includes anything of value and can take many forms besides cash, such as free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies.

Penalties

Criminal penalties and administrative sanctions for violating the Anti-Kickback Statute include fines, jail terms, and exclusion from participation in the Federal health care programs. Under this law, physicians who pay or accept kickbacksalso face penalties of up to $50,000 per kickback plus three times the amount of the remuneration.? It is important to be aware of this to prevent claims of Fraud and abuse.

Target for Kickbacks

As a physician, you are an attractive target for kickback schemes?because you can be a source of referrals for fellow physicians or other health care providers and suppliers. You decide what drugs your patients use, which specialists they see, and what health care services and supplies they receive. Many companies will attempt to take advantage of this relationship. They will attempt to pay you for the referrals.

Moreover, just as it is illegal for you to take money from providers and suppliers in return for the referral of your Medicare and Medicaid patients, it is illegal for you to pay others to refer their Medicare and Medicaid patients to you.

In addition, Medicare and Medicaid programs require patients to pay copays for services and you are required to collect them. Waiving these copays could implicate the Anti-Kickback Statute. Of course it is OK to waive if the patient cannot afford or if you have made efforts to collect.

An Important Law

The Federal False Claims Act and anesthesia is a topic worth considering. Of note, there are many federal laws in place that govern Medicare fraud and abuse. One of the most important laws that addresses fraud is the Federal False Claims Act. Most importantly, it allows private citizens to bring civil actions on behalf of the United States.

The False Claims Act protects the Federal Government from overcharging or selling substandard goods or services. Consequently it imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal Government. Of interest, this is a law that dates back to the Civil War era.

Knowledge of Wrongdoing

The terms ?knowing? and ?knowingly? mean a person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim. Furthermore, to violate the False Claims Act does not require proof of specific intent to defraud.

Qui Tam Complaint

The qui tam provision allows a person to file a qui tam action by which they assist a prosecution in a claim against a perpetrator of fraud. Initially the government seals the qui tam complaint 60 days. Secondly, during this time the government will investigate the allegations and decide if it is proceeding with the action. Eventually if convinced by the case the government will prosecute. Finally, the individual who initially brought the case may receive between 15 and 25 percent of the amount

Lack of Compliance Plan

Of importance is that the lack of a compliance plan increases the threat of Qui tam lawsuits.? Indeed this act provides significant financial incentives for private citizens to come forward as whistleblowers.

In short, the Federal False Claims Act and anesthesia is a topic that cannot be taken lightly.? Anesthesia providers should be prepared with an active compliance plan.

This is the best way to prevent Fraud and abuse

Through the Exclusion Statute, the Office of Inspector General has the authority to exclude individuals and entities from Federally funded healthcare programs. In addition, it also maintains a list of all presently excluded entities and individuals. This list is commonly known as the List of Excluded Individuals/Entities (LEIE). Most importantly, all organizations who hire an individual or entity that your foresee will participate in a government program must review this list.

Initially we must focus on Mandatory exclusions:

First of these are the exclusions by which the OIG is required by law to exclude from participation in all Federal health care programs individuals convicted of the following types of criminal offenses:

1. Initially, Medicare or Medicaid fraud, or any offenses related to the delivery of services under Medicare, Medicaid, or State programs
2. Secondly, patient abuse or neglect
3. Next, felony convictions for health care-related fraud, theft, or other financial misconduct
4. Finally, felony convictions relating to unlawful manufacture, distribution prescription, or dispensing of controlled substances

Secondly there are Permissive exclusions:

These are exclusions in which the OIG has discretion to exclude individuals and entities on a number of grounds,

1. First, are misdemeanor convictions related to health care fraud other than Medicare or a State health program
2. Fraud in a program funded by any Federal, State or local government agency
3. Misdemeanor convictions relating to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances
4. Suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity
5. Provision of unnecessary or substandard services
6. Submission of false or fraudulent claims to a Federal health care program
7. Engaging in unlawful kickback arrangements
8. Finally, defaulting on health education loan or scholarship obligations; and controlling a sanctioned entity as an owner, officer, or managing employee

Most important, to avoid Civil Monetary Penalty liability, health care entities need to routinely check the (LEIE) List of Excluded Individuals and Entities to ensure that new hires and current employees are not on the excluded list. Above all it is perilous to ignore the Exclusion Statute. Knowing the above helps prevent claims of Fraud and abuse.