Nursing homes and hospitals are among the top targets for Medicare and Medicaid investigations and audits, due both to the high volume of services provided, the high number of patients enrolled in one or both of these programs, and the complexity of their billing systems. Audit contractors also tend to see nursing homes and hospitals as “deep pockets” that will find it easy to pay when overpayment is determined. Our experienced and knowledgeable health law attorneys are available to represent nursing homes and hospitals at all stages of audits, investigations, and prosecutions. We can also assist you in pro-active planning to minimize your chances of being audited or investigated.

In today’s atmosphere of intense regulation and enforcement surrounding healthcare fraud, Medicare, Medicaid, and private insurance audit contractors are highly incentivized to recoup as many overpayments as possible. This leads to an increased amount of overpayment audits, many of which are targeted at large institutions like hospitals and nursing homes. With an immense array of services provided to many patients and a complex billing system, auditors often feel sure of finding some irregularity that will justify a determination of overpayment. While audits are typically triggered by certain irregularities in claims submissions that are detected by data analysis programs, once an audit is begun its scope can be expanded based on newly revealed information. In some cases, the results of an audit can precipitate further investigation or a referral for criminal prosecution.

One of the most common contentions when overpayment is alleged is that the provider delivered a service that was not medically necessary. A provider’s best chances of countering such an allegation is to present evidence that the insurer’s guidelines and rules were followed when determining medical necessity. Other allegations of overpayment may result from improper coding and other errors in submitting claims.

Investigations may be initiated by one or more of several state and federal agencies, and can be triggered by suspicion of violations involving fraud, kickbacks, improper dispensing of controlled substances, HIPAA violations, discriminatory hiring practices, medical negligence or patient abuse, and improper disposal of medical waste. The best protection against accusations of violations is ensuring that violations do not happen.

However, for a large and complex institution like a nursing home or a hospital, it can be difficult to monitor every activity of every employee. Because of this, an effective compliance program is of utmost importance, both in terms of preventing violations and of establishing good faith and intent to comply with the law if violations do occur. To be effective, a compliance program must be tailored to operations of the specific institution and must set forth mechanisms for preventing, detecting, and correcting violations. At the same time, a good compliance program will not hamper the institution’s ability to function and provide care to its patients. Our attorneys are highly experienced in developing compliance programs for nursing homes and hospitals that take into account their specific needs in order to effectively prevent violations and minimize audits and investigations.

Whether a provider is being audited, investigated, or prosecuted, documentation is key in terms of affecting the outcome. Depending on the aim of the investigation, agencies may request medical, personnel, billing, and financial records. It is important to ensure that all records are always complete, timely, and clear. Failing to properly enter and maintain records can be a violation in and of itself, independent of what the determination is concerning the initial purpose of the investigation. Consult your attorney for guidance as to best practices for your records.

In the course of an investigation or an audit of a nursing home or hospital, medical, support, and administrative staff may be interviewed. Since their statements will be an important part of the evidence in the case, it is important that they be properly prepared. Staff should also be cautioned not to volunteer information or make statements to investigators or auditors whether or not the setting is a formal interview. Even casual words spoken in conversation can return to haunt you. It is best to avoid communication outside of the presence of your attorney.

From overpayment audits to criminal charges, hospitals and nursing homes face complex legal issues that affect their day-to-day operation and can have serious repercussions in the future. Our qualified healthcare attorneys are prepared to assist with all legal concerns, from strategizing and planning out effective compliance protocols, to representation during audits and getting Medicare and Medicaid to pay for reimbursable services, to representations in the course of investigations and criminal prosecutions. We understand how nursing homes and hospitals work, and we work to ensure that operations are disrupted as little as possible during ongoing audits or investigations. Our attorneys are proficient in dealing with investigating and prosecuting entities and are able to navigate the procedural and legal issues so as to achieve the best possible outcome for each particular case.