“You keep using that word,” Inigo Montoya says to Vizzini in the cult-classic comedy The Princess Bride. “I do not think it means what you think it means.” The word that Vizzini so frequently misuses in the film is inconceivable. Unfortunately, it’s a term that seems to be floating around in the heads of too many chiropractors as well. As we near 2010, many chiropractors are now painfully aware that their coding and billing activities are being scrutinized more closely than ever before.
(Inconceivable? Read on…)
If you have been following recent legislative developments, you will have noted increasing overpayment recovery efforts by Medicare and its contractors. The current administration has declared that health care fraud enforcement will be a top white-collar crime priority for the Department of Justice (DOJ) and the various investigative agencies. Moreover, additional funding to fight health care fraud has recently been proposed in the Senate. Senator Ted Kaufman (D-DE) has sponsored the Health Care Fraud Enforcement Act of 2009, which, in addition to increasing the criminal penalties for health care fraud, allocates an additional $20 Million per year for health care fraud detection and investigation.
($20 Million extra for fraud detection? Inconceivable!)
While universal health care coverage may remain controversial, there is widespread support for additional legislation aimed at reducing health care fraud. This is not an attack on chiropractic per se (that would be inconceivable!) — these guys are going after every health profession at large!
Though I hesitate to get involved in all manners of political wrangling, there are some major issues creeping our way which can vastly affect our profession of chiropractic. We need to be aware of these not only on a profession-wide political level, but also in terms of how they affect our everyday practice.
If you haven’t already heard, here’s what’s coming unless someone puts a stop to it:
- Requiring that the U.S. Sentencing Commission amend the Federal Sentencing Guidelines to redefine the term “health care fraud offense” to include all health care crimes, regardless of where they are codified. Notably, it would also increase the offense score associated with health care fraud offenses, considerably increasing the length of any sentence handed down by the Court;
- Making it clear that all payments made in connection with illegal kickbacks constitute “false claims” under the False Claims Act; and
- Clarifying that it is not necessary that a defendant be aware that their conduct violates a specific provision of criminal law in order for them to be held accountable for their actions. Instead, a person would be guilty of a health care fraud offence if he (or she) knowingly does what the law forbids. (Inconceivable!)
That last proposed provision in Senator Kaufman’s bill should scare the bejeebees out of all small physician practices, including (and perhaps) especially chiropractors. Here’s why:
Unlike the big entity hospitals who have a fleet of attorneys to defend their every move, this provision puts the small timer at a big mechanical disadvantage.
To make matters worse, we have another problem related to the meaning of the word fraud. For many physicians, Inigo Montoya’s clarification is again applicable: “I do not think that it [ in this case, the word fraud] means what you think it means.”
For many of us, we have heard lawyers argue that the fine line between what constitutes fraud and good old fashioned red blooded ignorance (oops I made a mistake) is intent.
This definition makes sense to me, as a non-lawyer type. If I repeatedly conduct my business or an aspect of it (say documentation, billing or coding) in a way that is deemed illegal, substandard or just plain wrong and despite my knowing better, I continue to do so for financial gain, this seems like a reasonable definition of fraud. On the other hand, if I don’t really know what I am doing, I may be wrong but it is out of ignorance not bad intentions. Consequently, the ignorant (but well meaning) doctor who is reprimanded, fined or otherwise correct then proves that his intent was always good by doing one thing: he corrects his actions.
Again, I am not an attorney, but if this provision passes through, I believe it sounds like the word fraud may not mean what we think it means. Or at the least, the lines of intent will be sufficiently blurred to be inconsequential. It won’t matter whether you acted honestly but erroneously; you will still be guilty of health care fraud.
The Bottom line: I see a few action steps here:
1. Now, more than ever, is the time to support your local (state) AND national association to help fight these battles on our behalf! No excuses. Most state or national memberships will cost you the equivalent of one adjustment per month to join. Membership in both will run you two whole adjustments per month. The safety of your livelihood is certainly worth that much regardless of your political persuasions, philosophical differences or nitpicking with their ability to fulfill your agenda. Get over it and support these associations now!
2. Training in compliant billing, coding, documentation should be a priority for both doctor and staff. The only way you can adequately defend yourself, prevent fraud and screen for errors is to know what you are looking for. Unfortunately, chiropractors are either woefully inadequate at detecting their own problems or unwilling to address the issues. Both can have devastating effects on your practice and the profession.
3. Encourage each other to rise to a higher level. Many states are requiring billing, coding or documentation education as a part of their CE requirements. State Boards need to be proactive in teaching doctors on how to comply with the requirements of their state before the docs get in trouble. Unfortunately, I have seen many docs disciplined for things that are “grey areas” such as exam documentation, SOAP note requirements, cash or TOS discounts, etc. If we fail to meet local standards, it’s practically a sure bet that we will fail nationally as well. So we need to go to our state Boards and associations with our challenges and work to find solutions so they don’t become national problems on public display.
Certainly, I am not proclaiming that better billing, coding and documentation will solve all our chiropractic problems (that would be inconceivable!) but a lack of proper systems in these areas will definitely put us at risk for failure in a variety of different forms.