Category Archives: Credible Allegations of Fraud
Two Success Stories: (1) Getting a Provider’s Suspension of Medicaid Reimbursements Lifted; and (2) NCSU Wins the ACC!
A quick shout out to NC State University, my undergraduate alma mater, who won the ACC Tournament, beating out #1 ranked UNC!!!
I love legal success stories too. Because when my team wins, health care providers win.
Well, my firm and I had a success that I must share amongst my blog readers. I gave this blog a live read on RACMonitor this morning on Monitor Monday, so if you want to hear me read it, go to wherever you listen to podcasts and search for RACMonitor. I present on RACMonitor every Monday morning and have done so for the last 10 years!
One of my clients, a substance abuse facility, which provides SAIOP and SACOT services to the underserved in Idaho, is under civil and/or criminal investigation. The investigation began over two years ago, which is a material fact in this case. The substance abuse facility was being accused of health care fraud because it gave out gift cards and allegedly billed for services not rendered.
As for billing for services not rendered, we vehemently disagree, and the government has not provided any proof of such for the last 2 years. As for the gift cards, many of you may not know that in March 2022 the Office of Inspector General for the Department of Health and Human Services (OIG) published an Advisory Opinion in support of such activity. The OIG had published similar language in the past as well.
OIG stated that patient incentives (e.g. gift cards or cash equivalents) given as part of patients’ treatment plans are favorable and allowable. Though the OIG reiterated its concern that cash and cash equivalents given to patients can present substantial fraud and abuse risks, the OIG concluded that the arrangement presented a minimal level of risk.
For over two years, this company and its CEO have known that it is under civil and/or criminal investigation. The facility continues to provide medically necessary service throughout the investigation. Then, unexpectedly, on 12/22/2023, right before Christmas, facility receives a notice that the Department of Health Services, Division of Health Benefits has suspended the company’s Medicaid reimbursements. The company relies 100% on Medicaid.
The State does have the authority to suspend reimbursements. 42 CFR 455.23 states:
“(1) The State Medicaid agency must suspend all Medicaid payments to a provider after the agency determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid program against an individual or entity unless the agency has good cause to not suspend payments or to suspend payment only in part.”
The owner contacted me and explained that the company could not last 1 month without receiving Medicaid reimbursements for services rendered. It was catastrophic. His two facilities constitute over 24% of Idaho’s substance abuse facilities in the State. There would be a serious access to care issue, especially in southern Idaho.
I reviewed the Notice of Suspension, and appeal rights appeared there. I say it like I am astonished because I am astonished.
I have never seen appeal rights be given for “credible allegations fraud” under 42 CFR 455.23.
We appealed.
We won!
I argued threefold: (1) there is no credible allegation of fraud because the allegations that services were billed but not rendered is wrong and presenting gift cards is not illegal when dealing with substance abuse; (2) that nothing has changed since the investigation over two years ago, He has been rendering services during his investigation. Why now arbitrarily invoke a penalty on the facility when the government has been investigating for over two years. Why two years later suspend when seemingly nothing has changed. And (3) that the suspension was a violation of his due process.
Specifically, the court held that the State has had two years to investigate any allegations but for two years no action was taken, and no findings provided. Now, the State has decided to arbitrarily and capriciously suspend Medicaid payments to the provider. The suspension of Medicaid payments should be removed because the suspension is improper for a failure of there being any credible allegation of fraud. Additionally, the provider did not receive adequate notice and a chance for a hearing before the suspension action was taken. The suspension of payment is causing irreparable harm that will lead to the provider having to close their business of providing mental health and substance abuse services.
And just like that the suspension was lifted and the provider remains in business. I call that a win! And congratulations to NCSU Wolfpack! We were seeded #10, but ended up #1 of the ACC. We are seeded #11 in the Southern Division of the NCAA. And, yes, I chose NCSU to win the NCAA in my office pool. Go Pack! Can you pick me out from the below picture from 1994?
Or the one above from 1996?
Medicare Can Force a Whistleblower to Dismiss When Smoking Gun is Smoke and Mirrors
2024 has already proven to be audit heavy. It seems that the repercussions of COVID are beginning to appear. Actions related to COVID, such as audits of dates of service (“DOS”) during COVID are commonplace now. Whistleblower actions also seem to be on the rise.
We have even seen a few qui tam actions going forward even though the government did not intervene, which is rare, to say the least. In most cases, if the government does not intervene, usually, the whistleblower dismisses the case. The last qui tam action that I was worried was going to forward even though the government refused to intervene was a cardiologist practice. The number one reason that these super educated cardiologists were even on the metaphoric chopping block was because English was not the first language of any doctor employed by the practice. Imagine how smart you have to be to not only become a doctor, but to become a doctor in a country where you do not even speak the native language – to me – this is remarkable. The facility at issue employed 9 remarkable cardiologists, and, no surprise, the practice was the best and most desirable in the area. Plus, the practice was undergoing a possible acquisition by a nearby hospital, which was in the best interest of the doctors. The cardiologists were less than stellar business owners, but excellent doctors.
What happened was one of the senior cardiologists wrote an email that the whistleblower and the government, at first, took as a smoking gun. The doctor disseminated the email to everyone. Including the staff. This is what it said,
“…going forward, bill everything at a 99215; no matter what.”
The Feds believed that they had a smoking gun. Wouldn’t you?
99215 is Procedure Code 99215: Evaluation and Management Description for 40 minutes.
What the good doctor meant was this…COVID is upon us. Remember that? The times were so crazy and hectic in the health care world, which is why I am infuriated that the government is conducting audits of DOS during COVID. Sorry. Can we not give a “GET OUT OF JAIL FREE card” to all those providers who continued services in the midst of COVID?
What the misunderstood cardiologist meant by saying, “bill everything at a 99215 no matter what” was … we are in midst of COVID; this is worldwide pandemic. We are specialists. We are cardiologists. Anytime someone comes to us, it’s at least a 99214. During COVID, OF COURSE EVERY VISIT IS A 99215.
But that’s not what the government read. Which is why defense lawyers exist.
In this instance, I was afraid that the whistleblower would go forward regardless what the government decided. But I was wrong. Apparently, we were so convincing to the government that the government actually demanded the whistleblower to dismiss.
I did not know this until this case, which was only about 7 years ago, that in rare circumstances, the government can force a whistleblower to dismiss even if the whistleblower is gung ho.
In this case, the whistleblower was “gung ho.” But the government was adamant that there was no fraud since the “smoking gun” was, in reality, neither a gun nor was it smoking.
Since January of 2021, CMS and OIG accept anonymous and confidential whistleblower disclosures. Can you imagine your competitor accusing you of fraud in order to get your consumers? It happens. In fact, next blog, I will tell you a story of two specialized dental practices in Minnesota. And how one practice purposefully and nefariously accuses the other of fraud. That accusation resulted in a two-year reimbursement suspension for the accused practice which resulted in the business closing. The accuser facility is thriving and opened up three new offices. Is this really what are fraud laws are intended to do. The laws are being used to put competitors out of business, not finding fraud.
Physician Acquitted Due to Ambiguous and Subjective E/M CPT Codes!
Happy 2024! Today I want to discuss subjectivity and e/m codes. How many times have we heard horror stories surrounding the billings of 99204 versus 99205? We all know that the definitions of e/m codes were revised in 2021. “CPT Code 99204: New patient visits with moderate medical decision making must involve at least 45 minutes. CPT Code 99205: High-level medical decision making for new patients must equal or exceed 60 minutes of total time.” The new definitions allow physicians to rely on time spent. However, does the 45 minutes or 60 minutes equal face-to-face time? The definition does not specify face-to-face time, and I do not believe that the time requirements necessitate only face-to-face time. There is subjectivity in assessing whether a moderate or high-level of decision making has occurred. One person’s determination that a 99205 occurred could be the next person’s 99204. Despite the obvious subjectivity, courts have convicted physicians of health care fraud for billing 99205s instead of 99204 or 99203.
Well, I bring tidings of great joy. The criminal conviction of a Maryland physician for his role in a $15 million Medicare fraud scheme was vacated by a federal judge over the holidays last year…as in 1 month ago.
A federal jury in Maryland convicted Ron Elfenbein, M.D., age 49, of Arnold, Maryland, for five counts of healthcare fraud for submitting over $15 million in false and fraudulent claims to Medicare and other insurers for patients who received COVID-19 tests at sites operated by the defendant in August of 2023. Dr. Elfenbein was the first doctor convicted at trial by the Justice Department for health care fraud in billing for office visits in connection with patients seeking COVID-19 tests, which makes his acquittal even more important for other providers across the country. Literally, this is a ground-breaking case and all providers should put this powerful case in their defense toolkit because it’s a hammer of a case.
Dr. Elfenbein is on the right.
The conviction of Dr. Elfenbein was based upon his billing of level 4 evaluation and management claims for patients receiving COVID-19 tests, which the Justice Department determined was improper use of the billing codes.
According to the evidence presented at his three-week trial, Dr. Elfenbein owned and operated Drs ERgent Care, LLC, d/b/a First Call Medical Center and Chesapeake ERgent Care. Drs ERgent care operated drive-through COVID-19 testing sites in Anne Arundel and Prince George’s Counties. Dr. Elfenbein instructed his employees that, in addition to billing for the COVID-19 test, the employees were to bill for e/m visits. In reality, these visits were not provided to patients as represented, according to the DOJ. Rather, Elfenbein instructed his employees that the patients were “there for one reason only – to be tested,” that it was “simple and straightforward,” and that the providers were “not there to solve complex medical issues.” Many of these patients were asymptomatic, were getting tested for COVID-19 for their employment requirements, or who were getting tested for COVID-19 so that they could travel. Elfenbein submitted or caused the submission of claims totaling more than $15 million to Medicare and other insurers for these high-level office visits.
Elfenbein faced a maximum sentence of 10 years in federal prison for each of the five counts of healthcare fraud for which he was convicted.
Dr. Elfenbein’s motion for acquittal was granted Dec. 21 by the same federal judge who oversaw his initial trial. The judge found that because E/M CPT codes, the type of medical billing codes used by Dr. Elfenbein, are imprecise and designed to allow “physicians flexibility to exercise their best judgment given the multitude of factors that go into medical decision-making,” his use of the higher-cost level 4 codes did apply to the patient encounters based on the relevant guidelines.
In a detailed, 90-page ruling, James K. Bredar, Chief Judge of the U.S. District Court for Maryland, said the government did not meet the bar to convict Dr. Ron Elfenbein and ruled that “imprecision does not necessarily integrate well with the clear notice and due process guarantees of our criminal law” and “where the relevant CPT codes and related definitions are ambiguous and subject to multiple interpretations, problems clearly arise.” I agree. Ambiguous or subjective rules should not be the basis for criminal penalties. Civil, possibly. But not criminal.
RAC Audits: If It Walks Like a Duck and Quacks Like a Duck, It Is a Duck!
Today, I am going to talk about RAC audits. I know what you are thinking…don’t you always talk about RACs? Of course, you are going to talk about RAC audits. No. Today, I’m taking this blog in a different direction.
I want to talk about secret, hidden RAC audits. As you are aware, the federal regulations limit RACs from going back more than 3 years to audit claims. Juxtapose the UPICs, TPEs, SMRCs, MACs, OIG, and even State Medicaid agencies. Everyone, but the RACs are allowed more than a 3-year lookback period. Some, like OIG, have long lookback periods. Coincidentally, when a company responds to an RFP or a request for proposal from CMS to act as CMS’ vendor to conduct Medicare audits on America’s Medicare providers, a clause in the proposed contract between CMS and the vendor is highly argued or negotiated. Which clause in the vendor’s contract is most negotiated? I will tell you. The clause that states that the vendor is a RAC is most negotiated. Because if the vendor is called a UPIC instead of a RAC, the vendor has a longer lookback period. Being called a UPIC, suddenly, becomes a commodity. There are no laws mandating UPICs to a 3-year lookback period. All of a sudden, it is not hip to be a RAC.
Look into it. Do your research. The contracts are public record. Ask for Cotiviti’s contracts with CMS. Notice I said contracts, not contract. What I have realized over time is that a vendor may be hired by CMS to be a RAC auditor, but, once the vendor realizes the limit of 3 years, it goes back to CMS and asks if it can be considered an UPIC. Why? A UPIC can do everything that a RAC does; however, it gets an additional 3 years to lookback at claims and that means money. Cha-ching! Even Dr. Ron Hirsh commented today on RACMonitor about this story, which I presented this morning at 10:00am, as I present every Monday morning, live, on the national podcast RACMonitor , hosted by Chuck Buck and produced by MedLearn. If you want to listen to the podcast, click the following link: Nelson Mullins – Monitor Mondays Podcast Featuring Knicole Emanuel; Defeating Statistical Extrapolations, Expansion of Medicaid RACs, IPPS Final Rule, Smart Hospitals, and Physician Advisors Episodes
The podcast is also on video, but I don’t know how to view that. If you do, you would see my baby duck Biscuit on the screen. He joined me this morning to talk about, “What Walks Like a Duck and Quacks Like a Duck, Must be a Duck.” Dr. Hirsh commented that companies like Cotiviti have many, many contracts deeming Cotiviti many different acronyms. If you get a letter from Cotiviti, do not assume it is acting as a RAC. Instead, ask for the contract which allows Cotiviti to do what it purports to want to do.
I’ve noticed this trend in real life, but only for 10-20 individual cases, maybe 30. I have not had the time to draft a FOYIA request, and, quite frankly, my name on a FOYIA request nowadays result in a response that says, something to the effect of, use discovery instead. Even though my personal experiences should not be extrapolated across the country because that would be inappropriate and judgmental, I will give an example and you may extrapolate or not. There is a company that has been doing RAC audits in NC for the last 5-8 years. It is called Public Consulting Group (“PCG”). PCG and I go way back. If you are a longtime listener of RACMonitor, you will recall that Ed Roche and I presented numerous podcasts about the debacle in NM in 2013. The State of NM put 15 Medicaid providers who constituted 87.6% of the BH providers in NM at the time. The consequences were catastrophic; thousands were out of BH services overnight. There is even a documentary about the unraveling of BH in NM in 2013. The reason that these 15 BH providers were put out of business overnight was because of a NM vendor called PCG. PCG issued a report to NM after conducting Medicaid audits on these 15 BH facilities, which accused the 15 facilities of fraud. In 2013, PCG was considered a RAC per contract. Today, when I have a case against PCG and make the 3-year lookback period argument, I get a retort that it’s not a RAC. Instead it’s a UPIC.
To which I say, if it walks like a duck and talks like a duck, it is a duck.
Laboratories Are Under Scrutiny by OIG and State Medicaid!
Laboratories are under scrutiny by the OIG and State Medicaid Departments. Labs get urine samples from behavioral health care companies, substance abuse companies, hospitals, and primary care facilities, who don’t have their own labs. Owners of labs entrust their lab executives to follow procedure on a federal and/or state level for Medicare or Medicaid. Well, what if they don’t. For example, one client paid a urine collector/courier by the mile. That courier service collected urine from Medicaid consumers in NC, sometimes in excess of 90 times a year, when Medicaid only allows 24 per year. I have about 10-15 laboratory clients at the present.
Another laboratory’s urine collector collected the urine, but never brought the urine back to get tested. To which I ponder, where did all those urine specimens go?
Another laboratory had a standing order for over 6 years to test presumptive and definitive testing on 100% of urine samples.
OIG has smelled fraud within laboratories and is widening its search for fraudsters. Several laboratories are undergoing the most serious audits in existence. Not RAC, MAC, or UPIC audits, but audits of even more importance. They received CIDs or civil investigative demands from their State Medicaid Divisions. These requests, like RAC, MAC, or UPIC audits, request lots of documents. In fact, CIDs are legally allowed to request documents for a much longer period of time than RACs, which can only request 3 years back. Most CIDs are fishing for false claims under the False Claims Act (FCA). Stark and Anti-Kickback violations are also included in these investigations. While civil penalties can result in high monetary penalties, criminal violations result in jail time.
As everyone knows, labs must follow CLIA or be CLIA certified, which is the federal standard for which labs. The Clinical Laboratory Improvement Amendments (CLIA) of 1988 (42 USC 263a) and the associated regulations (42 CFR 493) provide the authority for certification and oversight of clinical laboratories and laboratory testing. Under the CLIA program, clinical laboratories are required to have the appropriate certificate before they can accept human samples for testing. There are different types of CLIA certificates, as well as different regulatory requirements, based on the types and complexity of clinical laboratory tests a laboratory conducts. CLIA, like CMS, has its own set of rules. When entities like CLIA or CMS have their own rules, sometimes those rules juxtapose law, which creates a conundrum for providers. If you own a lab, do you follow CLIA rules or CMS rules or the law? Let me give you an example. According to CLIA, you must maintain documentation regarding samples and testing for two years. So, if CLIA audits a laboratory, the audits requests will only go back for two years. Well, that’s all fine and dandy. Except according to the law, you have to maintain medical documents for 5 or 6 years, depending on the service type.
Recently, one of my labs received a CID for records going back to 2017. That is a 6-year lookback. Had the lab followed CLIA’s rules, the lab would only have documentation going back to 2021. Had the lab followed CLIA’s rules, when OIG knocked on its door, it would have NOT had four years of OIG’s request. Now I do not know, because I have never been in the position that my lab client only retained records for two years…thank goodness. If I were in the position, I would argue that the lab was following CLIA’s rules. But that’s the thing, rules are not laws. When in doubt, follow laws, not rules.
However, that takes me to Medicare provider appeals of RAC, MAC, and UPIC audits. Everything under the umbrella of CMS must follow CMS rules. Remember how I said that rules are not laws? CMS rules, sometimes, contradict law. Yet when a Medicare provider appeals an overpayment or termination, the first four levels of appeal are mandated to follow CMS rules. It is not until the 5th level, which is the federal district court that law prevails. In other words, the RAC, MAC, or UPIC, the 2nd level QIC, the 3rd level ALJ, and the 4th level Medicare Appeal Council, all must follow CMS rules. It is not until you appear before the federal district judge that law prevails.
Receiving a CID does not mean that your investigation will remain civil. Most investigations begin civilly. If the evidence uncovered demonstrates any criminal activity, your civil investigation can quickly turn criminal. I co-defend with a federal criminal attorney if the case has a chance to turn criminal. Believe me, there is a huge difference between federal and state criminal lawyers! Even with the best federal criminal lawyers, you want a Medicare and Medicaid expert lawyer on the team to dispute the regulatory accusations that a criminal attorney may not be as well-versed. I am so thankful that I moved my practice to Nelson Mullins, because we have a huge, yet highly-specialized health care practice. While we have a large number of lawyers, each partner specializes in slightly different aspects of health care. So, when I need a federal criminal attorney to partner-up with me, I just walk down the hall.
Laboratories: Beware! Be ready! Be prepared! Be lawyered up!
SNFs Are on the Medicare Chopping Block! Caveat!
Every skilled nursing facility in the US will be subject to a five-claim audit starting THIS WEEK as regulators try to better assess and root out improper payments. Blah. Blah. Blah. The former is the first sentence in an article that is giving warning to skilled nursing facilities (“SNF”). But, we all know that PROPER PAYMENTS get caught in the wide net cast for improper payments. Innocent people get accused of crimes. Health care providers get accused of Medicare and Medicaid fraud or, at least, abhorrent billing.
The Centers for Medicare & Medicaid Services (“CMS”) announced the nationwide audits, which will be conducted by Medicare Administrative Contractors (“MACs”) on a rolling basis, with the MAC in every region required to pull five Medicare Part A claims from every facility they cover and review them for potential errors.
The results will lead to alleged overpayments, credible allegations of fraud, submittals to the OIG, and False Claims Act (“FCA”) penalties. The effort follows an HHS report that found skilled nursing facilities had the highest rate of improper payments, with nearly a quarter of those tied to insufficient documentation.
Most of the rest of my blog (except for what is important) is cut and pasted from the article (since I am not a journalist and cannot procure quotes):
“We haven’t seen anything like this in the recent past, at least not in the last 10 years,” said Stacy Baker, OTR/L, RAC-CT, director of audit services for Proactive LTC Consulting. “But it’s no surprise to see this sector-wide probe and educate. Looking back on Medicare FFS improper payment data, we’ve never seen SNF improper payment rates this high, and nearly doubling since the 2021 report.”
That rate stood at 15.1% in 2022, almost double the 7.79% rate in 2021. A CMS report blamed missing case-mix group component documentation. Baker billed the new initiative as an attempt to improve poor billing practices that emerged with the implementation of the Patient Driven Payment Model.
But the improper payments can’t be attributed to PDPM alone, said Alicia Cantinieri BSN, vice president of MDS policy and education for Zimmet Healthcare Services.
“That’s probably not the whole reason,” she said on a webinar earlier this month.
She noted that risk areas that could move providers to the front of the audit process include past performance, such as a history of additional documentation requests (“ADR”); frequent errors in Section GG, which sets payment rates for physical therapy, occupational and nursing groups; diagnoses without medical record to support MDS inclusion; and even illegible RN signatures. I bolded “even illegible RN signatures” because I cannot tell you how many times I have seen denials by auditors because they couldn’t read someone’s signature, and, therefore, could not verify their license. Have auditors heard of a phone?
The reviews will be conducted on a prepayment basis unless the provider requests post-payment review due to a financial burden. Holy cow! See blog, blog, and blog.
“Keep in mind, there’s lots of low-hanging fruit for payment error aside from PDPM accuracy, such as but not limited to, compliant SNF Certs and Recerts and physician oversight regs,” Baker added. “These components should be included in the Triple Check process as well.”
The CMG for each HIPPS code also must be clearly supported to validate the claim.
The MACs will complete one round of probe and educate for every provider, instead of that usual potential three rounds, as per their traditional TPE program.
It is a good idea for providers to start analyzing data and conducting internal self-audits.
TIPS for an effective ADR response:
- SECURE AN ATTORNEY WHO SPECIALIZES IN THIS TYPE OF LEGAL WORK.
- Develop a process and team now. Assign responsibilities for tasks such as, but not limited to: identifying ADR requests, ensuring timely response to deadlines are met, pulling together medical records and documents required to support the HIPPS code, and reviewing the packet for completeness.
- Make copies. Never ever, ever, ever send originals.
- Organize documentation to make the contractor’s review easy, labeling critical sections such as physician orders, MDS assessments, Section GG documentation and more.
- Allow sufficient time for your lawyers and hired experts, both with clinical and MDS coding expertise, to review the claims and documentation for accuracy. If your attorney believes that your documentation has concerning issues, it is best to SELF-DISCLOSE. Self-disclosure can prevent penalties; whereas if you are caught, penalties will ensue.
Senators Question RAC Audits!
I have presented on RACMonitor, I think, for 3 years. I’d have to ask Chuck Buck to be exact. Over the last three years, I have tried my best to get the message out – RAC Auditors do not know what they are doing. Always appeal the decisions. – I feel like on my blog and on RACMonitor I have screamed this message until I was blue in the face.
Apparently, a couple Senators have taken notice. Or their constituents complained enough. Senators Tim Scott and Rick Scott drafted a letter to the Comptroller of America. A comptroller is a “controller” of financial affairs for the Country. The comptroller is the police of our tax dollars.
A few months ago, Senators Tim and Rick Scott wrote the U.S. Comptroller and complained about RAC auditors.
It was a letter that was short and sweet. It asked three questions.
It asked:
- How have states used the Medicaid RAC program to address strategic program integrity needs, including audits of managed care, and what are the lessons learned?
- What steps do the states and the Centers for Medicare & Medicaid Services (CMS) take to coordinate state Medicaid RAC program audits and other program integrity efforts? This includes existing Medicaid integrity programs such as the Unified Program Integrity Contractors, Payment Error Rate Measurement program, state auditors and Medicaid Fraud Control Units.
- How do states and CMS oversee the Medicaid RAC program and what mechanisms are in place to appropriately refer suspected cases of fraud?
As for the first question, RACs do address strategic PI needs – the very reason for their existence is to detect supposed fraud, waste, and abuse (“FWA”) by Medicaid providers. I’d like to hear the Comptroller’s answer.
As for the second question, they asked whether the States and CMS coordinate State Medicaid RAC audits. I don’t really care if the States and CMS coordinate State Medicaid RAC audits. So, I don’t care whether I hear the Comptroller’s answer to this.
The third question – “how do States and CMS oversee the Medicaid RAC program and what mechanisms are in place to detect FWA by Medicaid providers?” – I want to know that answer! I can tell the Comptroller the answer. The RAC Auditors are not supervised or overseen. If they were, they would audit differently; not try to find errors in every single audit conducted.
Maybe it’s time to get our Senators involved. While we’re at it, let’s talk about the Medicare provider appeal process, which is broken.
A New Associate Joins Practus’ Health Care Team: Ryan Hargrave!!
Attorney Ryan Hargrave joined the Practus Health Care Litigation team on June 1, 2022. Ryan comes from a career of litigation in the State of North Carolina. He began his career in 2016 as a Prosecutor for the State of North Carolina, Guilford County. There he gained valuable experience from which he used as he moved to defending clients. He served as the Lead Trial Attorney at Triad Legal Group before joining Graystar Legal as the Senior Associate Attorney.
Ryan obtained his undergraduate degree at Presbyterian College in Clinton, SC., where he received a B.A. in Political Science and a minor in Biology. Ryan has always had a keen interest in health care which has followed him throughout his career. He is locally known as the “Drug Lawyer” for his focus in the defense of drug-related crimes. He has a reputable proficiency in Cannabis Law, Criminal Law, and Civil Law across State and Federal Courts. Ryan has extensive trial experience that he brings to the Health Care Litigation team at Practus.
Ryan lives in North Carolina with his family, spending his time working out, making financial investments, and beginning his non-profit business, “Colored Money”. His non-profit will focus on teaching young boys and girls the value of money as a vehicle to achieve wealth, making smart investments, and how to achieve financial freedom. He is a big Georgia football fan and even has an English Bulldog that could serve as the team’s mascot.
Note from me:
I expect Ryan to dovetail and expand my Medicare and Medicaid regulatory compliance practice because his litigation experience will directly help me in litigation natters, but, also, his criminal litigation experience will also allow us to represent more White Collar Crime clients, including Medicare and Medicaid fraud accusations, False Claims Act, Stark, and Anti-Kickback alleged violations.
We are happy that he is here!
Defenses Against Medicare/caid Audits: Arm Yourself!
Auditors are overzealous. I am not telling you anything you don’t know. Auditors cast wide nets to catch a few minnows. Occasionally, they catch a bass. But, for the most part, innocent, health care providers get caught in the overzealous, metaphoric net. What auditors and judges and basically the human population doesn’t understand is that accusing providers of “credible allegations of fraud” and alleged overpayments, when unfounded, has a profound and negative impact. First, the providers are forced to hire legal counsel at an extremely high cost. Their reputations and names get dragged through the mud because providers are guilty until they are proved innocent. Then, once they prove that there is no fraud or noncompliant documents, the wrongly accused providers are left with no recourse.
The audits generally result in similar reasoning for denials. For instance,
- Lacks medical necessity. Defense: The treating physician rule. Deference must be given to the treating physician, not the desk reviewer who has never seen the patient.
- Canned notes: Defense: While canned notes are not desirable, it is not against the law. There is no statute, regulation, or rule against canned notes. Canned notes are just not best practices. But, in reality, when you serve a certain population, the notes are going to be similar.
- X-rays tend to be denied for the sole reason that there are no identifying notes on the X-ray. Or the printed copy of the X-ray you submit to the auditors is unreadable. Defense/Proactive measure: When you submit an X-ray, include a brief note as to the DOS and consumer.
- Signature illegible; therefore, no proof of provider being properly trained and qualified. Defense: This one is easy; you just show proof of trainings, but to head off the issue, print your name under your signature or have it embedded into your EHR.
- Documentation nitpicking. The time, date, or other small omissions result in many a denial. Defense: There is no requirement for documents to be perfect. The SSA provides defenses for providers, such as “waiver of liability” and “providers without fault.” The “waiver of liability” defense provides that even if payment for claims is deemed not reasonable and necessary, payment may be rendered if the provider did not know and could not have been reasonably expected to know that payment would not be made.
Whenever a client tells me – let’s concede these claims because he/she believes the auditors to be right, I say, let me review it. With so many defenses, I rarely concede any claims. See blog for more details.
“5 Minutes With” Knicole Emanuel from Practus LLP
I had the pleasure of being interviewed a second time on Legal Buzz. Thanks, Alex!!
