Answering the Call (or Mail)
What should you do first when you receive a legal inquiry?
Healthcare anti-fraud and abuse enforcement remains alive and well in 2018. The anti-fraud provisions in the Patient Protection and Affordable Care Act (ACA), such as mandatory reporting and returning overpayments, continue after Congress failed to repeal the ACA in 2017. In addition, federal and state investigators and prosecutors have applied the longstanding framework of the False Claims Act and the Anti-Kickback Statute in many high-profile cases against physicians. As imaging remains central to patient care, ACR members must run their practices carefully to protect their patients’ interests and avoid claims being brought against the group.
Radiology has not escaped these federal or state “interactions.” For example, radiologists in California and Maryland have recently faced charges of significant healthcare crimes. A jury in the California case found a radiologist — and his imaging practices — guilty on federal fraud and bribery counts.1 The defendants paid kickbacks to local clinics to receive referrals of patients undergoing medical treatment under workers, compensation and then billed insurers over $25 million fraudulently for various imaging and pain medication services. As of this column’s press time, the court has not yet sentenced the radiologist. In Maryland, a radiologist pled guilty to mail fraud because he unlawfully received travel reimbursements from his former employer.2 The federal court sentenced him to prison and ordered restitution. Both these cases illustrate that legal entanglements can cost time, money, and sometimes freedom.
What does this mean for you? Let’s echo the old scout motto: Be prepared. We’ve discussed in prior RADLAW columns that members may receive legal inquiries in different forms. You could receive a literal knock on your practice’s office door from an investigator or auditor. Or, more commonly, you could receive a telephone call or message (snail mail or email) that signals a problem. What should you do if you receive one of these inquiries, either from the government or a private party?
First off, stay calm and call your lawyer. Then notify your insurance company. If the knock on the door or the letter arrives from a current or former patient or their lawyer, do not talk to either of them. Do not discuss the matter with your colleagues, family, or friends.
You may wonder why you would call your lawyer first. Wouldn’t the insurance company appoint a lawyer to represent you? The lawyer provided by the insurance company will have an inherent conflict of interest. She or he has to represent both the insurer and you (or, in some cases, the insurer, your practice, and you). Sometimes, all those interests will be the same; in other cases, the interests of the insurer or the practice may not align with your best interests. For example, the insurance company or your practice may want to settle the case if the cost of settlement is less than the cost of going to trial — whether or not you made an error. That’s fine for them — just a business decision — but it’s your name that may be reported to the National Practitioner Data Bank and your malpractice premiums that could skyrocket.
Therefore, you should seek the advice of an experienced medical liability attorney before you talk to anyone else or make any decisions about how to handle the claim or lawsuit. If your personal lawyer does not have the experience in this area, ask him or her to refer you to an attorney who does. Your attorney can advise you on how and when to cooperate with the insurance company lawyer and may be able to help convince the insurer and your practice to present a vigorous defense when it’s in your best interest to do so.
What if the knock or letter originates from a government agency or its designated agent? In that case, you should follow a similar approach. Contact your lawyer, then your insurer. Whether you receive a subpoena from a regulatory body (such as the Office of Inspector General for the U.S. Department of Health and Human Services or the state department of health) or a demand letter from a Medicare auditor, allow your representative to address it for you. Your lawyer might have contacts with a federal or state investigator or prosecutor’s office and can negotiate a narrower scope of the subpoena or audit. You could save time and money if you submit fewer documents over a shorter period of time to the government. Additionally, review all images and records for the incident in question and share those with your lawyer. The best defense in any government-related matter sometimes is a prudent, well-organized, and executed offense.
1. McAllister T. Radiologist Bilked $25 Million From Insurance Companies, Paid Kickbacks to San Diego Health Clinics. San Diego Times. Dec. 13, 2017. Available at bit.ly/Rad_Kickbacks.
2. Former Johns Hopkins Physician Sentenced To One Year In Federal Prison For Fraud Scheme [news release]. Baltimore, MD: U.S. Attorney’s Office District of Maryland; Sept. 27, 2017. Available at bit.ly/Physician_Fraud.
By Bill Shields, JD, LLM, CAE, and Tom Hoffman, JD, CAE