This is a review of some important legal considerations for physicians who bill the United States government. Billing the U.S. government for medical services comes with a unique set of legal requirements and challenges.
Physicians who serve Medicare, Medicaid, and other government program beneficiaries must navigate stringent regulations designed to ensure the integrity and efficiency of these healthcare systems.
The U.S. healthcare system relies on third-party payers, which include commercial insurers and the federal and state governments. Thus, patients often do not pay most of their medical bills.
Federal fraud and abuse laws apply when the federal government covers items or services rendered to Medicare and Medicaid beneficiaries.
Patients trust physicians to provide necessary, cost-effective, quality care. Doctors exert significant influence over what services patients receive and control the documentation describing those services. This documentation is the basis for bills sent to insurers for services provided.
The Government's payment of claims is generally based solely on the physician's representations in the claims documents.
Since the Government invests so much trust in physicians, Congress has provided powerful criminal, civil, and administrative enforcement tools for cases when unscrupulous providers abuse that trust.
The government can audit claims and investigate providers when there is a reason to suspect fraud. Unusual billing patterns or reports from others, including staff, competitors, and patients, may raise suspicion of fraud and abuse.
Compliance with these rules is critical, as violations can lead to severe legal consequences, including civil penalties and criminal charges. If you're a doctor who bills government healthcare programs, here's an overview of what you need to know.
What are the Government Payer Regulations?
As noted, the U.S. healthcare system significantly depends on third-party payers, including commercial insurers and the federal and state governments.
Medicare and Medicaid are pivotal in this ecosystem, providing coverage for millions of Americans. Because the government covers many healthcare costs, stringent fraud and abuse laws protect the system from unscrupulous practices. Healthcare fraud is a commonly charged federal offense.
When physicians submit a claim for services performed for a Medicare or Medicaid beneficiary, they file a bill with the federal government, certifying that they have earned the payment requested and complied with the billing requirements.
If a physician knew or should have known that the submitted claim was false, the attempt to collect unearned money constitutes a violation. Federal fraud and abuse laws include the following:
- False Claims Act (31 U.S.C. 3729-3733)
- Anti-Kickback Statute (42 U.S.C. 1320a-7b(b))
- Physician Self-Referral (Stark Law).
- Exclusion Statute (42 U.S.C. 1320a-7).
- Civil Monetary Penalties Law (42 U.S.C. 1320a-7a).
These laws aim to prevent improper billing practices and financial incentives that could compromise patient care. These laws also grant powerful enforcement tools to federal agencies to penalize violations, ranging from civil fines to criminal charges.
What is the Accuracy of Coding and Billing?
One of the most critical aspects of government payer compliance is coding and billing insurers accurately for services rendered. Physicians wield significant influence over the services patients receive and the documentation supporting these services, which forms the basis for claims submitted to insurers.
A common violation, "upcoding," involves billing codes that reflect more severe illnesses or more expensive treatments than what was provided. Such practices constitute false claims and can lead to severe penalties. To avoid upcoding, physicians must:
- Ensure all billing codes accurately represent the services rendered.
- Maintain thorough and accurate documentation supporting each claim.
- Regularly audit billing practices to identify and correct errors promptly.
As noted, a common type of false claim is "upcoding," often referring to the use of improper billing codes for more expensive treatment than was provided. Other examples of improper claims include:
- Billing for services that were not rendered.
- Billing for services that were not medically necessary.
- Billing for services that an improperly supervised or unqualified employee performed.
- Billing for services that were performed by an employee who has been excluded from participation in the federal health care program.
- Billing for services of such low quality that they are virtually worthless.
- Billing separately for services already included in a global fee.
- Billing for an evaluation and management service the day after surgery.
What is Maintaining Accurate Records?
Accurate and complete medical records are paramount for compliance with government payer regulations. Physician records should be detailed, accurate, and contemporaneous and reflect the medical necessity of the services provided.
This documentation supports the billing and coding process and serves as evidence in case of audits or investigations.
Physicians must also adhere to federal and state laws regarding the retention of medical records. Generally, records should be kept for at least five years from the date of the last treatment. Failure to maintain accurate records for the required period can lead to compliance issues and legal repercussions.
Physicians must document every service they provide with precision, as these records:
- Serve as evidence that billed services were necessary and performed.
- Support the claims submitted for reimbursement.
- Provide a defense in audits or investigations.
Physicians should implement robust record-keeping practices, including:
- Using electronic health records (EHRs) to streamline documentation.
- Conducting regular training for staff on proper documentation procedures.
- Periodically reviewing records to ensure completeness and accuracy.
What is Protecting Patient Privacy?
In addition to accurate billing and record-keeping, physicians must comply with privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA). HIPAA mandates strict protocols for protecting patient information, ensuring that personal health data is secure and confidential.
Non-compliance with HIPAA can result in significant penalties, including fines and reputational damage. To safeguard patient privacy, physicians should:
- Implement secure data storage systems and encryption methods.
- Train staff on HIPAA requirements and best practices for data protection.
- Establish clear protocols for handling and sharing patient information.
What are the Legal Ramifications of Non-Compliance?
Failure to adhere to government payer regulations can have severe legal consequences. Violations of fraud and abuse laws may lead to:
- Civil Penalties: Under the False Claims Act, physicians can face substantial fines for each false claim submitted. These penalties can quickly accumulate, resulting in significant financial burdens.
- Criminal Charges: Intentional fraud or abuse can lead to criminal prosecution, which can result in imprisonment and criminal fines.
- Exclusion from Federal Programs: Physicians guilty of severe violations may be excluded from participating in Medicare, Medicaid, and other federal healthcare programs, which can severely impact their practice.
When Should You Contact a Federal Criminal Defense Attorney?
Given the complexity and severity of potential penalties, physicians who find themselves under federal scrutiny for billing practices should seek the counsel of a federal criminal defense attorney as soon as possible. An experienced attorney can:
- Provide guidance on compliance with federal regulations.
- Represent physicians in audits, investigations, and legal proceedings.
- Develop a robust defense strategy to mitigate potential penalties.
By proactively addressing compliance issues and seeking legal counsel when necessary, physicians can better navigate the regulatory landscape of billing government programs and avoid the severe repercussions of non-compliance. For more information, contact our federal criminal defense law firm, Eisner Gorin LLP, in Los Angeles, California.
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