AAOS Bulletin - June, 2005

How to respond to government contacts

By Robert Falk, JD

From time to time, physicians and group practices may receive contact letters from government agencies that request information, ask for documents or provide educational guidance. Some of these letters are routine; others may indicate a serious problem. This article examines different types of contacts and the best initial responses.

New Medicare policy announcement

On occasion, Medicare carriers send letters to providers announcing or explaining new or modified Medicare policies. Generally, these letters go to all providers of your category and do not contain information specific to you or your practice.

What does it mean? The Medicare carrier is educating the general population of providers and establishing expectations for future conduct.

What should you do? Read the letter or bulletin closely and determine whether you need to change your practices in any way. Discuss the letter with other physicians and support staff in your group to identify any necessary modifications in coding or policies. Medicare has sent out the notice because it expects you to comply. You will be held to that standard in the future.

Carrier educational contact

If a Medicare carrier identifies a problem area, the carrier may notify the physician with a letter that generally follows this form:

“Dear Dr. Jones: We are contacting you as a result of our analysis of your utilization patterns for procedures X, Y and Z. We notice that, compared to other physicians in your category, this coding pattern is atypical. We would like to refer you to the following resources so that you can better educate yourself on Medicare requirements. We will continue to monitor your billing practices and/or conduct post-payment review of your services….”

What does it mean? You’ve been given a warning that the carrier is watching you. The Centers for Medicare and Medicaid Services and its carriers now routinely screen providers for atypical billing patterns. You may stand out because your practice is inherently different from your peer group. On the other hand, you may not be billing properly.

What should you do? Examine your billing practices and, if needed, call in outside help. If your practice really does a great number of unusual procedures or if you perform more intense patient visits, then you should expect that the carrier will be reviewing your billing practices at a later date and you will need to defend your practices in the future.

If you are not coding properly, you need to change your practices immediately. The next time the carrier reviews your coding practices, it should see a change in your patterns. Either way, you should find a qualified consultant to help determine whether your billing meets program standards.

Audit request

This letter is a request from the government for specific documentation concerning specific patients. The letter will announce that you are subject to audit and will request precise information from specific patient files. The letter will provide a due date for the materials and a contact person in case you have further questions.

What does it mean? The government is looking at your practice either because you are showing up as a statistical outlier based on a profile of your peer group or because the government has received reports or information leading it to have more targeted concerns. Complaints by patients or current or former employees could be the basis of this review. Regardless of the origin of the review, the government is probably looking for fraud.

What should you do? This is not something you can handle alone. Get outside help to protect yourself. Find a lawyer who can represent you through the audit process and manage the investigator’s review. Let your lawyer review all documents before you send them to the government. Although the audit request comes with a due date, extensions are commonly granted. Either you or your lawyer should request an extension well in advance of the due date, not the day before.

Government subpoena

This is a formal order from the government requiring you to appear somewhere and do one of two things: testify or produce documents.

What does it mean? The government has received information that you, or someone closely associated with you, is committing fraud. You may be ordered to appear before a grand jury. If the order is in response to a criminal investigation, you are required to appear and testify about the fraud, or to produce any requested documents.

If you are required to appear before an assistant U.S. attorney or an agent from the Office of the Inspector General, the matter is currently a civil case, but could later become a criminal matter.

What should you do? Talk to your lawyer immediately. If you don’t have a lawyer, look for someone with experience in representing clients in health care fraud cases. Do not talk to anyone in the government about the matter. Do not start your own internal investigation or file review. Everything should be done at the direction of your attorney so that whatever is discovered is protected by attorney/client privilege. Let your lawyer be your channel of communication to the government. Anything you volunteer as an explanation of circumstances can later hurt you.

Robert Falk, JD, is counsel in the Washington, D.C., office of Powell Goldstein LLP. He can be reached at rfalk@pogolaw.com or 202-624-7318.

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