Providers are generally familiar with prohibitions against fraud and abuse in the Medicare and Medicaid Programs, including Medicaid waiver programs, and other state and federal health care programs, such as the VA and TriCare. Private insurers now often enforce the same prohibitions applicable to federal and state programs. But there are at least two common misconceptions about fraud and abuse, as follows:
(1) Enforcers must prove intent in order to show that providers engaged in fraud, but providers may not understand what the government can use to show "intent."
Many providers seem to think that the only way to show intent is to prove that they sat down at their desks on a Monday morning and decided to commit fraud, but court decisions tell a very different story! They say that if enforcers can prove that providers knew or should have known of a pattern of fraudulent conduct, enforcers may conclude that providers had intent. Other court decisions say that when providers show reckless disregard for a pattern of fraudulent conduct regulators can show intent necessary to prove fraud.
When providers grasp these crucial standards, it is clear that they must become vigilant to prevent patterns of fraud and abuse. This is necessary in order to prevent government enforcers from concluding that they had intent necessary to prove fraud and/or abuse.
(2)Many providers also may not understand that every provider, regardless of position, is personally responsible for fraud and abuse compliance. It is extremely tempting to think that fraud and abuse compliance is management's responsibility, or the exclusive job of the Administrator/Chief Executive Officer or the organization's Compliance Officer.
On the contrary, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, is quite clear that every practitioner has personal, individual responsibility for fraud and abuse compliance. The OIG has taken this position because it realizes that the problem of fraud and abuse will never be solved until every practitioner takes individual responsibility for it. Enforcement action is often taken against individual practitioners, as well as members of management and owners.
When providers understand these two basic points, they are well along the road to active participation in fraud and abuse compliance efforts. Providers must remember that fraud and abuse compliance is now a permanent part of the health care landscape across the nation. Compliance is not a fad that will blow over or disappear! Providers must be prepared to actively work to prevent or correct fraud and abuse for as long as they work in the healthcare industry.
©2020 Elizabeth E. Hogue, Esq. All rights reserved.
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