August 12, 2022 | By Sean Weiss, CHC, CEMA, CMCO, CPMA, CPC-P, CMPE, CPC
Self-audits are critical. They demonstrate compliance, or at least a “good-faith effort” to be compliant; they minimize refunds of overpayments to “actuals” and also mitigate the potential for a multiple being added. Most importantly, they prevent an auditor, agent, or prosecutor from making an allegation of malfeasants and/or, in a worse case, a reverse false claims act (under the Fraud Enhancement and Recovery Act (FERA) of 2009, the Act expanded liability under the False Claims Act. Prior to the FCA being amended, a relator had to prove that a false statement or record was created. Under the 2009 amendment, however, a person is now liable not only for an action, but for knowingly concealing and improperly avoiding an obligation to pay or transmit money to the U.S. Government. The FERA also defined the world “obligation” to include “an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based relationship or similar relationship, from statute or regulation, or from the retention of any overpayment.” This definition expanded the scope of what can be considered a reserve false claim.).
Regardless of what you “believe” your policy states or should state, the fact is an error rate of anything is an overpayment. Think about it this way, if you are receiving money above and beyond what you are legally entitled to, you have created a liability for which you are obligated to make the government whole. And, yes, this extends to commercial payors.
For years, I’ve worked with practices whereby they indicated they were good with a 10, 20, and even a 30% error rate, which is a significant problem. CMS, through various programs, may not escalate a provider for an error rate above 20%, but they will still make efforts to recoup the overpaid claims and, should the provider’s pattern of errors continue, potentially seek next-level enforcement action.
Providers, group practices, hospitals, health systems, etc. that are already under a Corporate Integrity Agreement (CIA) with OIG run the risk of even just one claim considered “overpaid” during a quarterly monitoring audit, running the risk of a multiplier (2 – 3 times actuals) being attached regardless of how small the dollar amount may be. As my good friend Eric Rubenstein and I have discussed many times in blog posts and our podcast together, close enough is not good enough! When you are under a CIA, your coding, billing and documentation have to be perfect. Remember, how the FCA reads, “Section 3729(a)(1)(G) (a)Liability for Certain Acts.— (1)In general.—Subject to paragraph (2), any person who (G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or Knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.
I serve as an Independent Review Organization (IRO) under the Office of Inspector General’s guidelines on behalf of organizations that have entered into a CIA voluntarily or as part of a plea/settlement agreement. In this role, I am responsible for a lot of things, but mainly drawing samples, auditing, post-audit extrapolation, and reporting back to OIG findings and amounts due as refunds. However, I also have responsibility to the health care organization in ensuring they receive proper training and education regarding errors and/or vulnerabilities. What has been interesting throughout my career in acting as an IRO are those providers, their administrators, and/or counsel who want to push back on findings and recommendations for improvement or want to argue why something is supported in their opinion, yet provide nothing in their documentation to support their argument. I have to remind them it is that behavior and/or mentality that got them into the current situation, so maybe it is time to listen to reason and stop trying to create argument(s) when arguments don’t exist!
Regardless of what some are saying about this not really being an overly aggressive enforcement period coming out of the public health emergency… I wholeheartedly disagree! We are in a new era of health care enforcement and the ability to target providers is what the government is doing quite impressively. One of the easiest arguments for the government to make is on what is referred to as a “strict liability” claim. This means that under a Local Coverage Determination (LCD), there are things such as frequency to which a service can be provided during a specific timeframe (i.e., 5 pain injections in a rolling 12 months). Regardless of whether or not your provider believes the additional injections are “medically necessary,” the government does not care and, if they discover the overpayment under the Civil Monetary Penalties Law (CMPLs), they are entitled to a minimum of a 2 X multiplier and up to treble (3 times) damages the amount unlawfully claimed. The Office of Counsel to the Inspector General has recently told us during our negotiations that seeking double damages is well within their rights given the fact that a provider has ample opportunity to self-audit, identify and confirm overpayments, and issue voluntary refunds of the actuals. Their failure to do so opens the door for penalties being attached. Regardless of whether you believe it is fair, that is the reality of our current enforcement landscape, which is why we have to do the right thing! Dust off that ole compliance manual, find your policy on auditing and voluntary refunds, and get to redrafting it! Sitting back and being complicit is not the way to demonstrate compliance and, in fact, it’s the easiest way to find yourself in an unmanageable situation.
Sean M. Weiss (AKA The Compliance Guy) is a nationally recognized fraud, waste, and abuse subject matter expert. Sean is a Partner, Vice President of Compliance and serves as a third-party compliance officer for group practices, hospital networks, and health systems across the country. Sean is a federally accepted expert witness in the areas of auditing, billing, coding, compliance, and operations. For more information on Sean and the services offered by DoctorsManagement, visit www.thecomplianceguy.com.
 S.386 – 111th Congress (2009-2010): Fraud Enforcement and Recovery Act of 2009 | Congress.gov | Library of Congress
 31 U.S. Code § 3729 – False claims | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)
 Definition: knowingly from 31 USC § 3729(b)(1) | LII / Legal Information Institute (cornell.edu)
 Definition: material from 31 USC § 3729(b)(4) | LII / Legal Information Institute (cornell.edu)