While it may be the case that attorneys in any field will naturally reflect the views of their clients, for the two hundred or so attorneys attending the meeting of the Health Law Section of the New York State Bar Association there was more than the usual unanimity. The tone was captured by the program’s title: “Penalizing Health Care Providers: Enforcement or Exploitation?” While the title was cast in the form of a question, pretty much all of the presenters and audience members thought they knew the answer--exploitation.
The tenor of the environment was expressed in a special edition of the Health Law Section’s journal, which included statements like “We sense a change in the way government perceives providers--from colleagues, with a common interest in promoting public health, to suspects,” and “Health care is not organized crime.” The editor of that issue is a former State health official.
There were exceptions, of course, the State government attorney and State Health Department official who braved the skeptical audience. Notably absent were representatives of the Department of Justice or the Office of Inspector General of the Centers for Medicare and Medicaid Services, the federal agencies which one panelist identified as being much more unduly aggressive than State officials.
What has led us to this hostile relationship between health care’s largest payers, federal and State governments, and health care providers? The easy answer would be Willie Sutton’s: “Follow the money.” With 13% of the gross domestic product consisting of health care, there inevitably will be true fraud and abuse. However, one panelist described the view of federal officials as going well beyond that. According to the panelist, if you made the same billing mistake consistently, federal officials would not consider that it was just a mistake requiring repayment, but rather was actionable as a false claim subject to treble damages and penalties of $5,000 or more per claim. When each patient visit results in a claim, the potential liability of a health care provider can quickly outstrip his or her net worth.
Certainly at the federal level health care fraud is big business. Over the past five years the number of FBI agents assigned to health care has increased over fourfold, from 112 to more than 500. Recoveries from health care providers are a federal profit center, substantially outstripping the cost of the resources devoted to pursuing them. While some panelists said that the reallocation of resources to fight terrorism might provide some respite for health care providers, others said that the returns to the government were too great.
Tales of FBI agents interviewing employees at their homes during the Friday night dinner hour, or arriving as a group to execute a search warrant at a health care office, highlighted the need for compliance plans to identify and correct problems before federal officials do come knocking. The difficulty with that is that it is quite expensive and can require considerable staffing. For a large hospital this may be manageable, but for a smaller facility like a nursing home, or for a physician practice, there may not be sufficient management or financial resources.
For example, the compliance plan at the mid-sized upstate hospital where the speaker is general counsel requires a compliance officer, a compliance auditor, and a compliance assistant. There is a compliance council of representatives from ten hospital departments plus a management compliance committee. Try that in a four physician group practice.
The skepticism with which the panelists viewed the government was reflected in the remarks of an attorney from Long Island. He said that while he had frequently counseled clients to make repayments to Medicare, he had never used the procedure developed by the Office of Inspector General because it was too cumbersome and offered no real benefits to his clients. If, in the jargon of business, the federal government were listening to its customers, you would expect it to address concerns like this.
As the baby boomers age, the numbers of people relying on Medicare for their health services will increase greatly. So will the fiscal pressure on the federal government to stamp out fraud and abuse. Before then, we need to develop a model for enforcement which encourages compliance and self-reporting of errors, and which does not treat every health care provider as a robber.
