by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the January 2001 issue of the Journal
Question: I have read and heard about the federal government coming down hard on health care professionals for alleged fraud and abuse in billing. Is this really a problem for dentists? Is it advisable for dentists to create compliance programs?
Answer: According to the Office of Inspector General, which is located within the federal Department of Health and Human Services, health professionals are not subject to civil or criminal penalties for innocent errors, or even negligence. When billing errors, honest mistakes, or negligence result in erroneous claims, the doctor will typically be asked to return the funds without penalties. The OIG, however, does emphasize the difference between innocent errors and reckless or intentional conduct, which can lead to criminal violations.
The OIG recently issued its Draft Compliance Program for Individual and Small Group Physician Practices. All references to “physician” in the document include dentists. This compliance program guidance represents the OIG’s suggestions on how individual and small-group practices can best voluntarily establish internal controls to prevent fraudulent or other improper activities. The contents of the guidance are not mandatory or binding; nor is the guidance an exclusive discussion of the advisable elements of a compliance program. The guidance is intended to assist practices in developing and implementing internal controls and procedures that promote adherence to statues and regulations applicable to the federal health care programs and private insurance requirements. The document is not in and of itself a compliance program. It is a set of guidelines that practices should consider when developing such programs.
The benefits, according to the OIG, in developing such a program include the development of effective internal procedures to ensure compliance with regulations, payment policies and coding rules; improved medical/dental record documentation; improved education for practice employees; a reduction in the denial of claims; more-streamlined practice operations through better communication and more comprehensive policies; the avoidance of potential liability arising from noncompliance and reduced exposures to penalties.
Health care practices should view compliance programs as analogous to practicing preventive medicine. The programs also send an important message to employees that they have an affirmative, ethical duty to assist in compliance. The OIG recognizes that there is no one-size-fits-all compliance program. The application of the recommendations will depend on the circumstances of each particular practice. Compliance programs not only help to prevent fraudulent or erroneous claims, they also show that the doctor’s practices is making a good-faith effort to submit claims appropriately. The OIG even states that it will consider the existence of an effective compliance program when addressing the appropriateness of sanctions.
The OIG has set forth seven basic compliance elements:
- establishing compliance standards through the development of a code of conduct and written policies and procedures;
- assigning compliance monitoring efforts to a designated compliance officer or contact;
- conducting comprehensive training and education on practice ethics and policies and procedures;
- conducting internal monitoring and auditing focusing on high-risk billing and coding issues through performance of periodic audits;
- developing accessible lines of communication, such as discussions at staff meetings regarding fraudulent or erroneous conduct issues and community bulletin boards, to keep practice employees updated regarding compliance activities;
- enforcing disciplinary standards by making clear or ensuring employees are aware that compliance is treated seriously and that violations will be dealt with consistently and uniformly; and
- responding appropriately to detected violations through the investigation of allegations and the disclosure of incidents to appropriate government entities.
The draft OIG compliance program elaborates in more detail on the seven basic compliance elements. To obtain more information on this significant and emerging topic, the entire document is available on the OIG Web site.