The New Compliance and Enforcement Landscape and What To Do About It

TDMR is pleased to present the first in a series of articles on health care compliance penned by TDMR President Greg Ewing.  Greg is a health care lawyer with  over fifteen years of experience in transactional health law; health information technology; privacy and security compliance, assessment, and remediation.  His law degree is from Boston University School of Law and he holds a Masters in Public Health from the Harvard School of Public Health.  He  completed his coursework and qualifying examinations toward a Ph.D. in health policy at Brandeis University’s Heller School for Social Policy and Management. 

It has been quite a year for Texas dentists who provide services to Medicaid patients, families and individuals with low income and resources.  As a result of the new powers given to federal and state agencies through the Affordable Care Act (ACA), dentists are experiencing crippling payment holds based on mere allegations of fraud.

Enforcement Environment is Heavy-Handed

Theoretically, it just takes one allegation of a fraudulent claim by one employee in order to justify the imposition of a payment hold.  Some dentists have the resources to fight the allegations and have won their battles.  For others, the crushing payment holds have driven them out of business.  Moreover, even if the dentist happens to win the case and its subsequent appeals, there is no telling when the dentist will receive the payments held by the government.  In 2010, the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS) received roughly $17 for every dollar it invested in enforcement.  While Texas’ enforcement agencies may yet to experience those levels of returns on its enforcement activities, it is reasonable to believe the agencies will strive to achieve or exceed those levels of returns.  Additionally, the Office of the Attorney General’s Civil Medicaid Fraud Unit announced that 20 of its pending whistle blower cases involve 400 dental and orthodontic Medicaid providers.

Further, the Affordable Care Act gave the Secretary of HHS even more severe enforcement tools, specifically, the authority to revoke a provider’s billing number if several grounds exist including:

•          non-compliance with enrollment requirements;

•          provider or supplier conduct, such as instances where a provider employs an excluded individual;

•          felonies – the provider, supplier, or any owner of the provider/supplier who within the last 10 years had been convicted of a felony;

•          providing false information on an application to enroll or participate in a Federal health care program;

•          misuse of billing number – provider sells or allows another provider to use its billing number (without proper CHOW – Change of Ownership); and

•          billing for deceased individuals or others who could not possibly have received the service (e.g., the provider was out of state but billed for services)

Unlike payment suspensions, revocations stay in effect for at least a year and could last for up to 3 years based on the severity of the situation.  Additionally, the use of these tools are consistent with the Department of Justice (“DOJ”) guidelines that instruct prosecutors to consider “non-criminal alternatives to prosecution” when available and warranted under the circumstances.  Recent enforcement trends show a significant increase in the imposition of suspensions and revocations, a trend experts think will only continue.

Compliance Programs a Necessity

Moreover, the Affordable Care Act states that providers “shall, as a condition of enrollment” in Medicare and Medicaid programs, have a compliance program.  While many larger organizations are required to have compliance programs, prior to ACA, the OIG “suggested” that health care providers have compliance programs.  Industry experts have stated that government fines and penalties are significantly less when the agencies find that the health providers under investigation have a robust compliance plan.  While that may be the case, this new requirement provides yet another requirement that dental practices must develop expertise in and comply with.

Difficulties in Compliance

Many smaller organizations lack the expertise in regulatory compliance and the demands of the practice do not allow them to stay abreast of the latest regulatory changes, while remaining current in their respective practice areas.  This situation forces them to rely on personnel who are typically not well versed with the various rules, regulations, and industry requirements and are over-burdened with day-to-day activities of providing quality health care to adequately develop, maintain, update, and implement a robust compliance plan.

Consequences of Not Having an Effective Compliance Program

The implication is that many organizations are out of compliance with many of the regulatory requirements for providing health care.  Inadequate regulatory compliance may translate into having a workforce with inadequate training or awareness, which could lead to billing errors and non-compliance activities, fines, penalties, and potential imprisonment.  Non-compliance exposes health care providers to hundreds of thousands and in some cases millions of dollars in fines and penalties.

A Solution for Health Care Providers

Organizations can prepare for these government audits and investigations by engaging affordable qualified compliance professionals to augment their staff and provide peace of mind.  Some professionals offer compliance services for a monthly fee that includes a customized compliance program, policies, procedures, training and quarterly compliance updates and awareness presentations.  Also, these professionals serve as subject matter experts and provide advice on what activities could trigger non-compliance.  These services provide peace of mind to dentists and other health care providers and allow them to concentrate on providing quality health care to deserving patients.

In short, these are trying times for dentists who provide health care services for federal health plan patients.  Increased enforcement, greater scrutiny and more complex regulatory requirements make practicing dentistry a difficult task.  However, qualified assistance is available to provide affordable services that address the ever-growing federal and state requirements.