ASC management teams continually work to mitigate their risk of healthcare fraud, whether intentional or inadvertent. However, preventing and eliminating fraud requires ongoing attention. Mohamed H. Nabulsi, JD, an attorney with Mandelbaum Salsburg, with offices throughout New York, New Jersey and Florida, highlights the many types of fraud ASCs encounter and ways surgery centers can safeguard against fraud.
Question: What are some of the most common types of fraud and other legally hazardous arrangements ASCs encounter?
Mohamed Nabulsi: There are several situations that ASCs can encounter. These include:
• Payment for referrals, which can range from the most primitive (cash) to the more sophisticated (directorships, profit-distributions to non-proceduralists who refer to the proceduralists, and offering of undervalued ownership interests, among others);
• Improperly structured anesthesia billing arrangements of the types on which the Office of Inspector General has expressed concern;
• Termination or dilution of ownership interests based on productivity;
• Billing arrangements involving surgical assistants;
• Utilization of Certified Registered Nurse Anesthetists and compliance with supervision requirements;
• Improperly structured relationships with marketers;
• Routine waivers of Patient Portions.
Q: What should ASC owners look out for to catch potential fraud early?
MN: ASC owners need to implement a comprehensive compliance program. The compliance program should include elements recommended by the OIG, including, without limitation, routine self-audits, a self-reporting protocol and staff in-services, among other steps.
Q: Do ASCs often struggle with unintentionally committing fraud? Why does this occur?
MN: Like many other healthcare business, ASCs are susceptible to inadvertent violations of law. Such violations could be attributable to ignorance of the law, misunderstanding the law (perhaps the law is ambiguous) or failure to employ systems by which compliance could be achieved, such as failure to employ a certified biller/coder.
Q: If an ASC administrator or other leader finds out an employee is committing fraud, what do next steps entail?
MN: Administrators and ASC management should immediately speak with the ASC's healthcare attorney so that the attorney may determine the most appropriate course of action, which could include self-disclosing the misconduct to the relevant authorities (e.g., OIG's Self-Disclosure Protocol), and taking corrective action against the employee. The healthcare attorney must be able to analyze, among other things, the extent of the fraud, any applicable reporting obligations of the ASC and the attorney, the overall legal structure of the ASC (e.g., does the ASC have other “skeletons” that may be exposed should be fraud be detected by an outsider?), the exposure of the ASC's governing body, the monetary damages involved, the likelihood of the fraud being detected by outsiders and the potential collateral effects on the ASC.
Q: How can ASCs safeguard against fraud -- intentional and unintentional?
MN: ASCs need to be vigilant in their efforts to safeguard against fraud and this can include many steps. The primary ones include reliance on a competent healthcare attorney and a comprehensive compliance program, which includes routine self-audits and in-servicing of staff.
Q: Where do you see the healthcare industry trending?
MN: I see three major healthcare industry trends that ASCs need to be tracking. They are:
1. Cost-containment: All payers, governmental and private, have been feverishly adopting cost-containment programs, including the Medicare Shared Savings Program and the private payer analogs. Additionally, payers have been persistently eroding out-of-network benefits through legal means (e.g., legislation and lawsuits against providers) and self-help (steering their patients to in-network providers, retaliating against in-network providers for referring to out-of-network providers or simply underpaying or not paying out-of-network providers).
2. Increased enforcement: Private payer (e.g., Special Investigation Units) and governmental investigations, actions/prosecutions have been significantly increasing. Arrangements that are common in the industry, and once thought to be innocuous, have been subjected to increased scrutiny, signaling a more aggressive approach to combating healthcare fraud by governmental and non-governmental payers and authorities. The use of informants (physicians who agree to cooperate with the authorities in return for a reduced sentence) are on the rise. Prosecutions/administrative actions involving diversion or indiscriminate prescribing of Controlled Dangerous Substances are on the rise.
3. Innovation: Telemedicine parity laws have been adopted, or are pending adoption in many states. This may enable providers to potentially maximize the volume of patients whom they can treat in a given day.