Compliance Programs: Do They

Cost or Pay?

You Be The Judge!
 

Author: Linda K. Christy, D.C.

An extremely important Decision was handed down by the 5th Circuit Court of Appeals September 20th, 2007.  This Decision is of vital importance to health care providers throughout the Country, and provides a stellar example of the role an effective compliance program played in advancing the Chiropractic profession. Unfortunately, very little press was provided regarding this Decision.

The Decision was handed down in the Allstate et al. v. Accident & Injury Chiropractic et al.  Relevant parts of that Decision are provided below:

United States Court of Appeals Fifth Circuit
F I L E D
September 20, 2007
Charles R. Fulbruge III Clerk

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 05-10265 

ALLSTATE INSURANCE CO; ET AL

Plaintiffs

ALLSTATE INSURANCE CO; ALLSTATE INDEMNITY CO; ALLSTATE
PROPERTY & CASUALTY INSURANCE CO; BOSTON OLD COLONY
INSURANCE CO; GLENS FALLS INSURANCE CO

Plaintiffs – Appellees

v.

RECEIVABLE FINANCE COMPANY LLC; ET AL

Defendants

ACCIDENT & INJURY PAIN CENTERS INC, doing business as
Accident & Injury Chiropractic; RECEIVABLE FINANCE COMPANY LLC;
ROBERT SMITH; LONE STAR RADIOLOGY MANAGEMENT LLC; WHITE ROCK OPEN
AIR MRI LLC, doing business as White Rock Open MRI; NORTH TEXAS
OPEN AIR MRI LLC, doing business as North Texas Open MRI, doing
business as Harris County MRI, doing business as Bexar County
MRI; REHAB 2112 LLC; METROPLEX PAIN CENTER INC, doing business
as Lone Star Radiology; LACIDEM MANAGEMENT; STEVEN SMITH; TINA
CHESHIRE; JAMES LAUGHLIN, DO; DEE L MARTINEZ, MD; THOMAS RHUDY,
DC; LOUIS SAUCEDO, DC; KENNETH LUSTIK, DC; MARK RAYSHELL, DC;
LARRY PARENT, DC; CHRISTOPHER HOLOWISKI, DC; CAREY FABACHER, DC;
PATRICIA JOHNSON, DC; GHOLAMREZA ASSADOLAHI, DC; KYLE CAMPBELL,
DC; CHAD BLACKMON, DC; RAMESH SANGHANI, DC; MARLON D PADILLA, MD
PA; MARLON PADILLA, MD

Defendants – Appellants

Appeals from the United States District Court

 * * *   

     Because we find the evidence insufficient to support either the jury verdict on fraud or the damages award, we reverse and render judgment for the defendants–appellants. * * * 

     On the evidence that was introduced at trial, a reasonable jury could not have found that Allstate actually relied on any misrepresentation by A&I. As such, the district court should not have submitted the Texas common law fraud claim to the jury. * * *

     We reverse and render judgment for the defendants–appellants.

REVERSED.

The intent of insurance carriers is often to destroy providers’ reputations in the Press and bankrupt them to put the providers out of business.  Providers confronting a multi-billion dollar insurance carrier and/or industry often have little choice but to “fold up their tents” and steal away into the night.

Many providers are either defenseless when confronted by spurious allegations of health care fraud and abuse, or feel as though it is merely a cost of doing business with insurance carriers to accept denials, paying little attention what the bases of those denials are.  This, my dear colleague, is a huge mistake!

Accident & Injury Chiropractic (“A&I”) survived Allstate’s barrage of 5+ years of litigation and millions of dollars in legal fees for two, and only two, reasons:

1. Robert M. Smith, A&I’s President/CEO, was fully committed to the implementation of a bona fide Compliance Program to ensure that:  (a) patients were given the best care possible under the circumstances; (b) services performed were medically necessary; (c) fees were usual and customary; and (d) referrals were based on medical necessity; and 

2. There was no fraud there!

How do I know?  Robert M. Smith retained Dan Osborne and me to work with A&I staff (e.g., Dr. Tom Rhudy, Dr. Lou Saucedo et al.) to create what Texas State Legislators called the “Premiere Health Care Compliance Program.”  In fact, prior to the Allstate litigation, we were identified as the model to be co-opted by providers, irrespective of discipline, throughout the State.

The Spanish proverb, “Lo baroto sale caro” (i.e, “Cheap things turn out to be expensive”), is important in selecting a Compliance Program.  This is, without a doubt, an area in which it is better to buy something of high quality that to buy something cheap that could result in your ruin.  As Albert Einstein is reported to have said, “Sometimes one pays more for the things one gets for nothing.”

The problem is that most, the vast majority of, providers are honest hardworking professionals, consumed with a passion for helping patients who present seeking help, oblivious to the pitfalls confronting them by that palpable crime scene – the patient record!

Many providers, either out of desperation or lacking sufficient knowledge, have retained the services of convicted felons for Compliance assistance.  Many of these so-called “Compliance Gurus” have neither developed nor implemented a compliance program.  Furthermore, they have never observed the impact on practices of implementing such procedures.

Healthcare providers across the country are being targeted for healthcare fraud investigations.  Many of those providers are clueless of this fact!
Reimbursement Denials May Be Your First Clue That Your Files Have Been Flagged!

If Your Files Have Been Flagged, Brace Yourself –A Storm Is Brewing!

Are your own actions causing you to be targeted?

Do you engage in one or more of the following?

• You accept what the insurance carrier offers, without question.

• You work with 3rd- party liability carriers and accept what your patients give you once they receive settlement, and accept your patient’s account of settlement negotiations.

• Your patient retains an attorney to handle a 3rd-party liability claim, and you accept the attorney’s offer of settlement without question.

• You work consistently with a limited number of external providers (e.g., physicians, surgeons, neurologists, etc.).

• You don’t bother to read the Explanations of Benefits (“EOBs”) in which the insurance carrier identifies the reasons for denial.

• You don’t bother to read peer reviewers’ reports. 

•  You don’t bother to respond to the peer reviewers’ reports, considering them merely a nuisance and cost of doing business with insurance carriers. 

• You either don’t bother to read, or don’t receive, Controverting Affidavits in which both reasons for denial are reported and aberrant practices are alleged. 

• You don’t bother to respond to the Controverting Affidavits in which reasons for denial are reported, considering them merely a nuisance and cost of doing business. 

• You don’t bother to respond to Controverting Affidavits in which aberrant practices (e.g., unbundling of services, medically unnecessary services, medically unnecessary referrals, etc.) are alleged, because you either consider such allegations harmless or you have neither the time nor ability to provide a response challenging such allegations. 

If the answer is yes, then you need to consider a quality compliance program!
While you can rationalize to yourself that these issues are just the cost of doing business, a nuisance and can be ignored, the consequences can be
disastrous.
By not sticking up for yourself you are looking an awful lot like someone who is afraid to challenge the system…maybe because of guilt…at least that is what the carriers want to believe.
What can I do?

What are some of the ways in which you may salvage your practice, license, and freedom if you have become the target of a healthcare fraud investigation?  Here are a few examples:

• Develop a healthcare compliance program.  Do not make the mistake of believing that a sham compliance program will suffice.  You are better off having no compliance program than merely using one for window-dressing.  The false sense-of-security often proves disastrous! 
• Develop an audit-response program that effectively addresses deficiencies, both noted and alleged. 
• Develop a policy for refunds of monies paid in error, when such errors are noted during internal audits. 
• Develop an effective auditing process, assessing medical necessity and billing issues. 
• Meet with SIU agents who may have “flagged” your files to identify specific areas of concern. 
• Develop a Hotline to address issues of concern coming from employees, patients, insurance adjusters, etc. 
• It may be possible to enter into a Corporate Integrity Agreement between the targeted-provider and investigators. 
• Retain a compliance team knowledgeable in healthcare law.  Do not trust your fate to an attorney inexperienced in this arena.  Rest assured, the insurance carriers will not!

I am very familiar with insurance companies’ strengths and weaknesses, and I want to help you either avoid becoming a target or minimize your liability if you are already the target of a healthcare fraud investigation.
I’ve spent decades in practice, and worked closely with insurance carriers, defense attorneys, personal injury attorneys, law enforcement, and others, I understand your fears and concerns.  More importantly, I know how to help you gain the knowledge you need to identify the insurance carriers’ weaknesses and practice in an ethical manner.
I have seen the exodus of hordes of providers due the insurance industry’s stranglehold on the healthcare industry, and I have taught many providers to fight back.  When investigators come knocking on your office-door, will you be prepared? 

An effective Compliance Program, properly implemented and managed, could make the difference between losing your practice, losing millions of dollars, losing your freedom, and being in a position to proudly announce to the investigators, “Come on in.  I would be proud to show you our program.” 

Do Compliance Programs cost or pay?  You be the judge!
What should you do now?
Invest in a reputable compliance program.  Sham programs create more problems for you than you even want to contemplate.  Believe me, if, for whatever reason, you become the target of a health care fraud investigation, you do not want to be forced to justify your selection of an unqualified compliance “guru” for your tutelage in this process.

Feel free to contact me for a free Quick-Start Compliance Guide.  You may do so here:

http://www.complianceinformationnetwork.com/quickstart.html

Linda K. Christy, D.C. Dr. Christy has 20 years of experience in Chiropractic, and has spent those years perfecting her skills as a Chiropractic Physician, clinician, diagnostician, teacher, and mentor. Dr. Christy is recognized nationally as the most knowledgeable Provider-Auditor of health care records.Dr. Christy has conducted exhaustive audits on more than 10,000 chiropractic files. She has conducted one-on-one audits on services performed by more than 100 chiropractors, MDs, and DOs.In addition to being thorough, Dr. Christy’s audits are frequently described as the most beneficial educational experience those providers audited have ever received. She leaves no-stone-unturned. In fact, due to her thoroughness, she has been referred to as “a colonoscopy in high-heels.” You may contact Dr. Christy here:  doctorchristy@complianceinformationnetwork.com