Due to increasing Medicare, Medicaid, and commercial insurance audits and other investigations and the rising number of qui tam actions (also known as whistleblower lawsuits), some physicians have hired attorneys and law firms to serve as their billing specialists. The case can be made for hiring an attorney to serve as the billing specialist in light of the potential penalties, sanctions, and possible exclusion from the Medicare Program if federal fraud and abuse regulations (including but not limited to the Anti-Kickback Statute, Stark Law, Anti-Markup Rule, and the False Claims Act) are violated.
The risk of exposure and potential liability, including civil monetary penalties and criminal penalties and sanctions, for an entity that violates the federal fraud and abuse regulations makes a strong case for hiring an attorney to serve as the billing specialist. Doing so can minimize risk of exposure if the attorney serves efficiently. In designating or hiring an attorney as the billing specialist, it is important to ensure that the attorney and law firm are qualified to serve in that capacity. That means conducting due diligence to make sure the attorney and law firm have the requisite expertise and experience with reimbursement and billing issues, audits and investigations, and claim denials. Identify and communicate expectations for the parameter of the services to be provided by the attorney.
An advantage of hiring an attorney to serve as a billing specialist is that any documents that are produced or advice that is given by the attorney to his client are most likely protected by the attorney/client privilege and may not be discoverable by a government agency, auditor, or investigator in a future lawsuit, audit, or investigation. The attorney/client privilege protects physicians from having to disclose and produce any documents or communications that result from the attorney’s representation. While there are certain exceptions to the attorney/client privilege, it can serve as a shield to protect from potential liability triggered by an audit, investigation, billing errors, or submission of a false claim.
Typically, most compliance plans implemented include an attorney review component as well as a policy and procedure for contacting the company attorney in the event of a coding or billing issue or claim denial by a payor. In the event of an audit or investigation or a pattern of claim denials, hospitals and physicians may decide to consult an attorney to provide guidance and advice in dealing with the government agencies, auditors, inspectors, and fiscal intermediaries. However, consider seeking guidance and advice from an attorney on billing issues as a preventative measure and not in the midst of a crisis (such as lawsuit receipt or the appearance of federal agents).
If a physician decides to hire an attorney and law firm to serve as billing specialists, they should conduct due diligence and contemplate the following preliminary considerations:
Interview the attorney to determine whether the professional has the background, expertise, and experience to represent the field specialty and provide legal advice on regulatory compliance issues, including billing and coding. While the attorney will not be conducting the actual coding and claim submission, he should have a solid working knowledge of how claims are processed and submitted to various payors. The attorney also should understand how claim denials are challenged and appealed.
Ask the attorney if he can conduct education and staff training regarding regulatory compliance issues. It is imperative that all reimbursement procedures conducted, specifically billing and coding policies and procedures, be fully understood by the staff to ensure compliance.
Determine if the attorney can conduct periodic reviews of the compliance plan and policies and procedures to ensure that they are implemented, updated, and executed in compliance with the applicable state and federal regulations. An effective compliance plan should contain written standards of conduct; an education and training plan and related objectives; identification and enforcement procedures for disciplinary procedures; internal auditing, monitoring, and reporting procedures; and provisions for investigations and corrective action.
Ask the attorney if he can conduct patient chart reviews. Conducting an internal patient chart review can be an effective tool for targeting areas that need to be improved and continually monitored. Subsequent patient chart reviews should address any previous concerns or cited deficiencies. Make sure the patient charts are stored and retained in compliance with all applicable state and federal regulations.
Determine if the attorney can periodically be on-site to walk through and observe how patients are receiving care from the staff. Physicians should consider who has access to the patients’ records, including financial documentation, and make sure to protect the confidentiality of all patient records pursuant to the federal HIPAA privacy and security regulations and applicable state regulations.
A strong case can be made to hire an attorney as the billing specialist in light of the current regulatory landscape and increasing enforcement effort by government agencies and commercial insurance companies. Consulting with and hiring a qualified attorney who is well versed in regulatory compliance regarding your specific area of practice and related documentation can help avoid potential regulatory pitfalls and liability exposure.