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| Dear Friend,
Be very careful about whom you hire.
Some say that you’re the composite of the five people with whom you spend the most time.
I don’t know if that’s true, but employing or contracting with the wrong person, someone excluded from participation in Medicare and Medicaid, can lead to drastic penalties as one physician recently found out.
As reported by the U.S. Dept. of Justice, in late February, 2022, Alan Siegel, M.D., a psychiatrist, and his Hamden, CT practice, Geriatric & Adult Psychiatry, LLC (“GAP”) entered into a civil settlement agreement with both the U.S. Government and the State of Connecticut as the result of employing an excluded individual.
The civil settlement cost the physician and his practice $310,874.
Originally enacted in 1977 as a part of the Medicare-Medicaid Fraud and Abuse Amendments in the form of mandated exclusions and subsequently expanded over the ensuing decades to include permissive exclusions, the U.S. Department of Health and Human Services Office of inspector General (“OIG”) wields authority to exclude physicians and other individuals convicted of Medicare and Medicaid program-related crimes, as well as others who submit fraudulent or false or other types of improper claims, from participation in federal health care programs.
In addition, the effect of an OIG exclusion is that no federal health care program payment may be made for any item or service furnished by an excluded person or at the medical direction or on the prescription of an excluded person. This is the case even if the excluded person’s services are not separately billed. Submitting any such claim is a false claim.
Extremely important for physician groups, the prohibition applies even if the payment is made to a person who is not excluded: in other words, a payment to a medical group that is used in whole or in part to pay for the services of an excluded individual makes the underlying claim a false claim, even if that individual’s services are not separately billed and even if they are administrative in nature.
In the civil case settled by Dr. Siegel and GAP, the government alleged that Siegel and GAP improperly employed Eric Ressner, a physician who was convicted of conspiracy to commit healthcare fraud and excluded from all federal health care programs. Apparently, Dr. Siegel hired Ressner as GAP’s clinical director. During the time of Ressner’s employment, GAP and Siegel submitted claims to federal health care programs and, as alleged, a portion of the reimbursement that they received was used to pay Ressner’s salary and benefits. As always, remember that the allegations were settled, they were civil allegations not criminal, and that a settlement means there was no determination of liability by a court.
Lest there be any confusion, the scope of the prohibition applies very broadly. In addition to prohibiting an excluded individual from serving in an executive or leadership role, for example, as a chief executive officer, chief financial officer, general counsel, director of health information management, director of human resources, physician practice office manager, and so on, at a provider that furnishes items or services payable by federal health care programs, it also prohibits an excluded individual from providing other types of administrative and management services, such as health information technology services and support, strategic planning, billing and accounting, staff training, and human resources, unless wholly unrelated to federal health care programs.
Note that liability attached to employing or contacting with such a person applies whether the entity submitting claims to federal health care programs knows or should know of the exclusion. Translation: if you had checked the exclusion database you would know.
The bottom line is that you must carefully vet every single one of your potential employees and contractors against the OIG exclusion database (https://exclusions.oig.hhs.gov/). Preserve the record of your check. Recheck periodically to make certain a “clean” hire is no longer so clean.
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| | | Business Life in the Time of Coronavirus Mini-Series
The coronavirus crisis caused a short term economic crisis for many medical groups. Our mini-series shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
[If you haven't already seen them, follow this link to watch our entire series.] |
| | Watch Tuesday's video here, or just keep reading below for a revised, more polished version:
In January 2022, the OIG changed its rules in connection with the requirement that it must automatically reject certain OIG opinion requests.
Let’s put this in context. For our purposes, we’re talking about opinion requests in connection with questions about the application of the federal Anti-Kickback Statute ("AKS"), the law prohibiting remuneration for the referral of federal healthcare patients.
Traditionally there have been several uses for OIG advisory opinions.
The one that most people think of is seeking a positive opinion: you’re engaged in, or more likely, about to engage in, a transaction featuring a certain set of circumstances that might or might not violate, the AKS. You decide to present a request to the OIG for an opinion, seeking a "positive" opinion that it does not trigger the statue.
Another popular use for a request for an opinion is to block some action. For example, you’re a hospital-based group with an exclusive contract with a hospital. The hospital subsequently proposes that you enter into some sort of an arrangement, and you respond that you can’t do it because it would be in violation of the AKS. The hospital takes the position that what they propose is perfectly legal. You announce that you’ll pursue an opinion from the OIG before entering into the proposed arrangement. The idea here is to get a negative opinion, to block the hospital from essentially forcing you into entering into that arrangement.
Historically, there was a third use: Requesting an OIG opinion in order to fish for information to reveal if the fact pattern you are engaged in is under investigation by the federal government – the OIG or the DOJ.
That's because up until the January 2022 change, the rules for the OIG opinion process included a requirement that the OIG had to automatically reject a request in connection with a set of circumstances the government is already investigating you for. They also had to reject it if a similar set of circumstances (not involving you) was being investigated.
So you can see how that could be used to fish for information – you get a very quick response, usually within a couple weeks, stating that the request can’t be processed because you are under investigation. That is very valuable information.
As a result of the rule change, the OIG is no longer required to reject your request on those grounds. Even if you are under investigation, they can go ahead and process your request.
So in general, you've lost the ability to fish for information, to seek confirmation of your suspicion that you might be under investigation.
But there remains a related way of using an investigation-related request. Under similar circumstances, you could apply for a ruling and draw a negative opinion. Having exercised your ability to get a favorable administrative response, you could file in court for a declaratory relief, seeking an order that your activities don’t violate the AKS -- a blocking strategy against prosecution.
So there are still at least three ways to use OIG AKS advisory opinions. You should be aware of them all. Under the right circumstances you should consider using one or more.
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| | How to Deploy the Secret Sauce of Opportunistic Strategy
Webinar On Demand
They say that COVID-19 has changed the world, creating the "new normal." Many of your colleagues and many hospital administrators are running scared.
Others, leaders like you, know that crisis means opportunity.
Let me provide you with the strategic tools and insights that you need in order to seize opportunities, whether they’re in the context of your current business relationships, the expansion of your business activities, or the creation of new ventures.
You will learn:
•Defense as a defective default: It’s necessary, but not sufficient.
•Exploiting weakness: Drop the guilt and identify opportunity.
•Flat line negotiation is fatal: Understand its myths and limitations.
•Negotiation reality: Learn to identify and deploy on multiple planes to affect the outcome.
•Maneuver: Harness the power of maneuver, both in overall strategy and in specific negotiation strategy.
Others see a crisis and freeze in fear. Learn how to see the opportunities and obtain the tools to increase your odds of obtaining them.
The price to attend is $479. The cost of not attending is astronomical. |
| | | Wednesday - Termination Notice - Medical Group Minute
Watch the video here, or just keep reading below for a slightly polished transcript:
"Bob, we've got to give you your two weeks notice. Here's a check for the next two weeks' compensation. Just pack your personal belongings and Jerry, here, will see you to the door."
Of course, if your medical group has a contract with a facility, say an exclusive contract, it can't technically be "fired." But its contract can be "terminated." If there's a without cause termination provision, especially a short one, in the contract, it might be a distinction without a difference. You'll still be looking for a new job.
In times like these, when larger groups are displacing local ones with greater frequency and the power is shifting in favor of facilities and away from physicians, it's time to rethink agreeing to short without cause termination provisions.
First, especially if you've ignored my argument that it's essential that your group provide services at multiple facilities to create a safety net against over-reliance on one facility relationship, 90 days if not nearly enough notice to either find another "home" or wind up doing business and find your group's members other jobs.
Second, depending on your state's laws, the 90 day termination notice period might be a cap on the length of contract damages in the event the facility simply tosses you out without notice or otherwise breaches your agreement.
Termination provisions and provisions governing what happens upon termination are taking on larger importance in any medical group deal. |
| | | Listen to the podcast here, or just keep reading for the transcript.
Speed kills. I read it on the message board that stretched across the lanes of the highway. (I suppose that reading message boards kills, too, but they aren't advertising that.)
That may be true on the highway, but it's patently untrue in terms of your group's business. In business you need to be able to make decisions quickly and then act on them. That speed is the one major benefit that the smaller competitor has. Think guerrilla warfare.
Many medical groups destroy their ability to compete through the creation of truly democratic, club-like structures in which every shareholder or every partner gets a vote in respect of almost every business decision.
Opportunities fly past. They don't slow down for your group to give notice of a shareholders meeting and then take a vote.
The solution is to create a structure with as few leaders as possible and then to let them lead and to even fail as long as they build on that failure. The inability to act due to the fact that your group has tied itself up in knots is not an effective strategy.
In this context, speed saves your business life. |
| | | Calibrate Your Compass
Read our exclusive RedPaper to guide you through this evolving situation.
The coronavirus crisis caused a short-term economic crisis for many medical groups. Our RedPaper shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
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| | Help Us Help You With Helpful Content
What tailored content would you most like to see during this
time? How can we focus on solutions to your most pressing strategic concerns?
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| | | | We all hear, and most of us say, that the pace of change in healthcare is quickening. That means that the pace of required decision-making is increasing, too. Unless, that is, you want to take the “default” route. That’s the one is which you let someone else make the decisions that impact you; you’re just along for the ride. Of course, playing a bit part in scripting your own future isn’t the smart route to stardom. But despite your own best intentions, perhaps it’s your medical group’s governance structure that’s holding you back.
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| In fact, it’s very likely that the problem is systemic. The Medical Group Governance Matrix introduces a simple four-quadrant diagnostic tool to help you find out. It then shows you how to use that tool to build your better, more profitable future. Get your free copy Free.
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| | | | Whenever you're ready, here are 4 ways I can help you and your business:
1. Download a copy of The Success Prescription. My book, The Success Prescription provides you with a framework for thinking about your success. Download a copy of The Success Prescription here.
2. Be a guest on “Wisdom. Applied. Podcast.” Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.
3. Book me to speak to your group or organization. I’ve spoken at dozens of medical group, healthcare organization, university-sponsored, and private events on many topics such as The Impending Death of Hospitals, the strategic use of OIG Advisory Opinions, medical group governance, and succeeding at negotiations. For more information about a custom presentation for you, drop us a line.
4. If You’re Not Yet a Client, Engage Me to Represent You. If you’re interested in increasing your profit and managing your risk of loss, email me to connect directly. |
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