Prepare Argumentative Research Paper
You lead a multi-disciplinary team that deals with compliance issues for GoodHealth, Inc., a large healthcare provider that owns four hospitals. Your team did some investigating, including internal audits and confidential interviews, and they found the following:
(1) the provider seems to have imposed budgetary constraints that they knew or should have known would prevent facilities from providing adequate care;
(2) care that is not of acceptable quality is being provided;
(3) there are medical coding errors going five years back that will likely total millions of dollars;
(4) medical errors are not being consistently reported; and,
(5) physician peer review for medical errors is not taking place in a consistent or timely manner.
Your team has concluded that it is in the best interest of GoodHealth, Inc. to self-report to the OIG. The team must prepare a paper and presentation for the CEO. The CEO will submit the paper to the Board of Directors. Be creative. How should this be approached?
Start with these articles on Corporate Responsibility and Healthcare:
· https://oig.hhs.gov/fraud/docs/complianceguidance/Corporate%20Responsibility%20and%20Health%20Care%20Quality%206-29-07.pdf
· https://oig.hhs.gov/fraud/docs/complianceguidance/040203corpresprsceguide.pdf
Here are some suggestions for the team to consider.
· What sort of penalties can be imposed by the OIG to address (1) through (5) above?
· Have the Directors breached any legal duty?
· Should the organization self-report?
This is what we got so far….
Intro:
Human health and the provision of health facilities fall under the sensitive areas in public administration. Thus, several laws are constantly being put in place to regulate both private and public sectors that fall in this department. A healthcare provider should, therefore, be accountable at all times of its operation. In this light, physicians are required to follow laws regarding federal fraud and avoid breaking the law through medical errors, lacking adequate care and encountering budget constraints. Additionally, the government mandates healthcare providers through the Office of the Inspector General, Health Care Compliance Association and Federal Bureau of Investigation. These facilities regulate statutes in compliance with its operations to ensure accountability and competence. The facilities also ensure the laws in place such as acknowledgement of budgetary constraints resulting in inadequate care, unacceptable quality of care, medical coding errors, failure to carry out peer physician reviews with regards to medical errors are properly carried out and not violated.
Thesis:
Goodhealth Inc should self report to the OIG and disclose any wrongdoings before the start of an investigation in the hopes of: convincing the authorities to forego charges altogether or at least substantially reduce the penalties that would otherwise be sought and imposed, self reporting gives providers the opportunity to avoid the costs and disruptions associated with a Government-directed investigation and civil or administrative litigation and self-reporting would presumptively indicate an effective compliance program, removing the need for a Corporate Integrity Agreement (CIA) to get involved.
Body of Argument: (from 2 classmates)
Katherine’s argument:
Convincing the authorities to forego charges altogether or at least substantially reduce the penalties that would otherwise be sought and imposed.
The Civil Monetary Penalties Law authorizes the imposition of substantial civil money penalties against an entity that engages in activities including, but not limited to: (1) knowingly presenting or causing to be presented, a claim for services not provided as claimed or which is otherwise false or fraudulent in any way; (2) knowingly giving or causing to be given false or misleading information reasonably expected to influence the decision to discharge a patient; (3) offering or giving remuneration to any beneficiary of a federal health care program likely to influence the receipt of reimbursable items or services; (4) arranging for reimbursable services with an entity which is excluded from participation from a federal health care program; (5) knowingly or willfully soliciting or receiving remuneration for a referral of a federal health care program beneficiary; or (6) using a payment intended for a federal health care program beneficiary for another use. 42 U.S.C. § 1320a-7a. (Civil Monetary Penalties Law, 2012) The Social Security Act authorizes the Secretary of HHS to seek civil monetary penalties (CMPs) and assessments for many types of conduct. Many of the OIG’s CMPs are in the Civil Monetary Penalties Law (CMPL), 42 U.S.C. § 1320a-7a, and the OIG’s CMPs codified elsewhere in the Social Security Act adopt by reference many of the provisions of the CMPL. The OIG is authorized to seek different amounts of CMPs and assessments based on the type of violation at issue. See 42 CFR § 1003.103. For example, in a case of false or fraudulent claims, the OIG may seek a penalty of up to $10,000 for each item or service improperly claimed, and an assessment of up to three times the amount improperly claimed. 42 U.S.C. § 1320a-7a(a). In a kickback case, the OIG may seek a penalty of up to $50,000 for each improper act and damages of up to three times the amount of remuneration at issue (regardless of whether some of the remuneration was for a lawful purpose). 42 U.S.C. § 1320a-7a(a). (Civil Monetary Penalties Law, 2012)
An example of a reduced penalty that resulted for self-reporting is after it self-disclosed conduct to OIG, HVL Corp d/b/a The Whittier Pavilion, Massachusetts, agreed to pay $51,021 for allegedly violating the Civil Monetary Penalties Law. (OIG) OIG alleged that Whittier employed an individual that it knew or should have known was excluded from participation in Federal health programs. According to the Civil Monetary Penalties Law, the OIG, could have easily seeked at least three times the amount that they ended up penalizing this office. Another example of reduced penalties is after it self-disclosed conduct to OIG, Setion Medical Center, California, agreed to pay $27,225 for allegedly violating the Civil Monetary Penalties Law. OIG alleged that Seton submitted claims to Medicare for cataract extraction procedures when it did not supply the specialized Intraocular Lens (IOL) and should not have been reimbursed for the IOL supply. (OIG)
Self-reporting gives providers the opportunity to avoid the costs and disruptions associated with a Government-directed investigation and civil or administrative litigation.
No matter what kind of case you’re involved in, a civil lawsuit can be very expensive. In addition to attorney’s fees, you are required to pay for filing fees, copying fees, expert witness fees, court reporter fees, transcripts, and many other costs along the way to trial. According to the New York Times On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.(Glater, 2008) By self-reporting to the OIG, you eliminate the court costs associated with going to court and may also avoid having the OIG conduct a longer and more detailed investigation on their own which could disrupt business practice even longer.
References
Civil Monetary Penalties Law. April 30, 2012. The American Health Lawyers Association. Retrieved from https://www.healthlawyers.org/hlresources/Health%20Law%20Wiki/Civil%20Monetary%20Penalties%20Law.aspx
Office of Inspector General U.S. Department of Health & Human Services (n.d) Retrieved from https://oig.hhs.gov/fraud/enforcement/cmp/psds.asp
Glater,Jonathan. Aug 7,2008. Study Finds Settling Is Better Than Going To Trial. The New York Times. Retrieved from http://www.nytimes.com/2008/08/08/business/08law.html
Latisha’s argument:
Corporate Integrity Agreement
A Corporate Integrity Agreement (CIA) comes into play once a healthcare provider violates fraud and abuse laws. The CIA is part of the fraud settlement the provider enters into with the government in order to avoid exclusion from Medicare and Medicaid. Ramsey (2002) explains, “…if convicted of a violation of the False Claims Act, a Medicare provider may be excluded from participating in the Medicare, Medicaid, and other Federal healthcare programs for up to five years (p. 58). Exclusion can be detrimental to a provider and the solvency of their facility.
One of the reasons why GoodHealth, Inc., should self-report is because they could be in violation of the False Claims Act. They have five years of medical coding errors that may total millions of dollars. Claims incorrectly billed to Medicare and Medicaid fall under the False Claims Act. The False Claims Act is a “Federal statute setting criminal and civil penalties for falsely billing the government, over-representing the amount of a delivered product, or under-stating an obligation to the government” (Cornell Law School, n.d., pp. 1). Knowingly falsely billing Medicare and Medicaid exposes GoodHealth Inc., to fraud charges and exclusion from participating in Medicare and Medicaid.
Under the Social Security Act, entities can be excluded from Medicare and Medicaid if they fail to provide the necessary care to those covered under these insurances (Social Security Act, section 1128). GoodHealth Inc., imposed budgetary constraints that they were aware would cause inadequate care. In addition, care that is not of an acceptable quality is being provided to patients. Failing to provide adequate care to patients, GoodHealth, Inc., faces the chance of exclusion from Medicare and Medicaid.
GoodHealth, Inc., will want not want to enter a CIA with the United States government because they will be required to follow complex rules and regulations. According to Ramsey (2002), modern day CIA’s include the designation of a compliance officer, establishing a code of conduct, and creating a training program (p. 59). The organization will be under severe scrutiny for five years while after agreeing to the CIA. They will be subject to site visits from the Office of Inspector General (OIG), systems reviews, claims reviews, and penalties if the organization is not in compliance with the CIA.
The OIG does allow hospitals to self-report, thus avoiding a CIA. According to the OIG, “Self-disclosure gives providers the opportunity to avoid the costs and disruptions associated with a Government-directed investigation and civil or administrative litigation” (n.d., pp. 1). The Provider Self-Discloser Protocol lists four benefits for self-disclosure:
“First, we believe that good faith disclosure of potential fraud and cooperation with OIG’s review and resolution process are typically indications of a robust and effective compliance program. Second, we believe that individuals or entities that use the SDP and cooperate with OIG during the SDP process deserve to pay a lower multiplier on single damages than would normally be required in resolving a Government-initiated investigation. Third, we believe that using the SDP may mitigate potential exposure under section 1128J(d) of the Act, 42 U.S.C. 1320a-7k(d). Finally, we commit to working with individuals and entities that use the SDP in good faith and cooperate with OIG’s review and resolution process” (2013, p. 2).
Coming forward in good faith can help GoodHealth, Inc., avoid a government investigation, paying large fees and fines, will not have to enter a CIA, will prevent exclusion from Medicare and Medicaid.
References
Cornell Law School. (n.d.). False claims act. Retrieved from https://www.law.cornell.edu/wex/false_claims_act
Office of Inspector General. (n.d.). Corporate integrity agreement FAQ. Retrieved from https://oig.hhs.gov/faqs/corporate-integrity-agreements-faq.asp
Office of Inspector General. (n.d.). Provider self-disclosure protocol. Retrieved from https://oig.hhs.gov/compliance/self-disclosure-info/protocol.asp
OIG’s Provider Self-Discloser Protocol. (2013). Retrieved from https://oig.hhs.gov/compliance/self-disclosure-info/files/Provider-Self-Disclosure-Protocol.pdf
Ramsey, R. 3. (2002). Corporate integrity agreements: making the best of a tough situation. Healthcare Financial Management: Journal of the Healthcare Financial Management Association, 56(3), 58-62.
Social Security. (n.d.). Exclusion of certain individuals and entities from participation in medicare and state health care programs. Retrieved from https://www.ssa.gov/OP_Home/ssact/title11/1128.htm
