The record-breaking $2.2 trillion U.S. government budget to battle COVID-19 includes $100 billion for public health services. Unsurprisingly, the huge cash injection has created a risk of pandemic-related medical billings fraud. That in turn has made work for the enforcers of the False Claims Act (FCA, or Lincoln Law), which imposes liabilities on federal contractors who defraud government programmes. The potential for fraud is real, especially in a time of widespread income shortfalls.
Healthcare systems are strained due to patient influx and limited resources. As a result, some organisations have let standards slide in areas including coding, billing, documentation, and certification. But if an FCA enforcer spots such a trend (typically through advanced data analytics tools), they may suspect a larger-scale FCA violation.
Government action has in part compounded the problem. To ensure the most urgent needs are met quickly, the U.S. Federal government is distributing payments from its gargantuan COVID-19 relief fund with minimal bureaucratic standards. Swift and easy public assistance required relaxed, modified, or suspended regulatory measures, and the limitation of others intended to limit waste or prevent fraud.
- The Centers for Medicare and Medicaid Services have waived important aspects the Stark Law, which prohibits physicians’ self-referral, and anti-kickback enforcement in the Department of Health.
- Payments to certain providers have been increased by 20% to ensure maximum benefit is available to patients hospitalised with coronavirus.
- The range of reimbursable treatments and services under Medicaid/Medicare packages has been expanded to include diagnostic treatments and products not yet approved by the FDA.
- Medicare payments have been made available to hospitals with insufficient cash-flow.
- Doctors and hospitals have been promised payment for treating uninsured patients.
- Telehealth services for Medicare patients have been expanded significantly, including provisions for expedited payment, and waiver of the requirements for pre-existing patient/physician relationships and direct meetings with service hospice, home health, and dialysis patients.
Many changes were implemented without clear guidelines, so organisations trying to comply faithfully may be more susceptible to errors. New contractual obligations to government have been published, but many agencies are not experienced enough to implement and monitor their execution.
The U.S. government may attempt to reimburse physicians treating uninsured Covid-19 patients, for example, while the Center for Disease Control says doctors should utilise telehealth options. A physician who used telehealth to diagnose an uninsured Covid-19 patient, but cannot confirm the diagnosis with a blood test, has no evidence to support payment. Standards of documentation for insurance purposes are not clear.
Six practices can be deployed to protect providers from FCA enforcement action during these unusual times:
- Maintain adequate care standards: Although ‘adequate standards’ for Covid-19 care remain a work in progress, U.S. medical providers should follow the latest guidance issued by the Department of Health, the Center for Disease Control, and other professional, State, and Federal organisations. Failure to do so may lead to an FCA violation.
- Create an up-to-date compliance plan: Compliance plans should be revised to include the essential steps to prevent the spread of COVID-19, and to ensure necessary care for those diagnosed with the virus. Once a Covid-19 compliance plan has been adopted, it must be followed.
- Train all employees: Care facilities are responsible for training employees to ensure they follow adequate infection-control procedures. Training should be provided formally, and proof of training always available.
- Allow employees to report wrongdoing: Establish a mechanism that allows employees to report suspected abuse, fraud, and care violations. When management receives reports of misconduct, they must immediately deploy an investigation committee, then take adequate remedial measures. The mechanism must ensure employees feel it provides a ‘safe space’ to make reports, and be included in the compliance plan.
- Maintain adequate records: Care providers must be prepared for a long crisis, and consider record-keeping as a central responsibility throughout. Documentation can help to present the right evidence if violations are alleged.
- Document the use of stimulus funds: Organisations that have received monies under the CARES Act or another stimulus programme must maintain detailed documents explaining the use of the funds.
These simple procedures will help to prevent successful false claims against those working especially hard to manage the Covid-19 pandemic.