Finishing at the Top of the Class: The Risks Faced by High Achievers on the Medicare Billings List

by Davis Wright Tremaine LLP

In this increasingly competitive world, providers generally want to be at the top of almost any official ranking. CMS’s recently released list of medical groups and physicians receiving the most Medicare reimbursement dollars may be the exception to that general rule. The medical professionals who received the highest amount of Medicare reimbursement have received unwelcome media attention and the publication of the list has sparked industry debate over whether those groups and physicians have been operating their practices and billing the Medicare program in a legitimate manner. Whatever the outcome of the debate, those groups and physicians are now likely targets for government scrutiny, regardless of the underlying circumstances.  

For most groups and physicians on the list, it makes sense to “kick the tires,” confirm that operations are within acceptable boundaries of legal compliance, and if deficiencies are identified, to correct them before a whistleblower or the government comes knocking. 

Where should you start? 
A medical group or physician organization that wants to determine its current level of legal compliance should consider reviewing the following:

1. Any policies, procedures, educational materials and other clinic resources that are used to help identify and correct:

  • Billing for items or services not actually rendered (no-shows)
  • Billing for physician services rendered by non-physicians
  • Duplicate billing
  • Providing medically unnecessary services
  • Proper documentation needed for referrals, prescriptions, lab orders, DME, home health, etc.
  • Upcoding
  • Misrepresentation of diagnosis
  • Incentives that may violate fraud and abuse laws (e.g., excessive payment for medical directorships; free or below market rent; fees for administrative services at hospitals; relationships with referring physicians; dealings with drug and device manufacturers; suspect marketing/advertising activities; self-referral or inner office referrals for ancillary services; excessive discounts or routine waiver of deductibles/coinsurance; intentional billing fraud; etc.)
  • Any material corrective action taken by the clinic with respect to any of the above

2. Any policies, procedures or other documentation regarding:

  • Billing and coding
  • List of procedures performed at the clinic and procedure codes billed
  • A “Compliance Plan,” “Code of Conduct,“ “Standards of Practice,” or similar document or policy
  • The designation of a compliance officer or other persons or committees with oversight of compliance activities
  • The development and implementation of any compliance training and education programs
  • Disciplinary guidelines
  • The use of audits and other evaluation techniques to monitor compliance
  • Procedures to respond to detected offenses of billing or compliance standards and procedures to initiate corrective action
  • Preparation and delivery of Advance Beneficiary Notices
  • Assignment and reassignment of billing and/or collection rights concerning procedures performed at the clinic
  • Patient complaints
  • Audits, inquiries, sanctions or other complaints from commercial health plans
  • Audits, inquiries, sanctions or other complaints from government payors including but not limited to Medicare and Medi-Cal
  • Employee complaints
  • Scope of practice and permitted procedures performed by physicians and non-physician clinicians

3. Contracts

  • Commercial health care payors (HMO, PPO, other)
  • Government health care payors (Medicare and Medicaid FFS and managed care contracts, etc.)
  • Third-party billing service contracts
  • Contracts with employed and contracted physicians and non-physician practitioners
  • Contracts with outside service providers
  • Contracts with hospitals or other medical groups, clinics, or providers of any kind, including service contracts and joint ventures
  • Other vendor contracts, e.g., device, equipment, supplies

4. Licenses, Permits, Accreditations, Approvals

  • Licenses of physicians and non-physician practitioners
  • Licenses, permits, accreditations and other approvals, if any, issued to you or the clinic to perform cardiac catheterizations or other procedures that are performed at the clinic
  • Other federal and state licenses, permits, accreditations and approvals

5. Summaries of the following, if any:

  • Audits, inquiries, sanctions or other complaints from commercial health plans within the last five years
  • Audits, inquiries, sanctions or other complaints from government payors, including but not limited to Medicare and Medi-Cal within the last five years
  • Internal compliance audits or reviews within the last five years
  • Employee complaints within the last five years
  • Private lawsuits within the last five years

6. Copies of Articles of Incorporation and Bylaws; names of Board of Directors and Officers of the corporation

The nature and extent of this kind of internal review will vary depending on the circumstances of the group or organization. It may be appropriate to include different documents and information in the review, depending on, for example, the medical specialty, size of the group, past compliance problems, etc. Any such review should be done as an attorney-directed investigation in order to maximize protections under attorney-client privilege and attorney work product.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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