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| Dear Friend,
Who'd have thunk it -- a crooked compliance officer.
Years ago, I was able to wipe a traffic ticket from my record by attending something billed as, as I recall, “comedy club traffic school.”
So, who says healthcare compliance stories can’t be funny?
We all know the expression “life imitating art”, but hardly anyone talks about “crimes imitating compliance”. That is, until today.
On June 8, 2023, a federal jury convicted the chief compliance officer of a pharmacy holding company, Steven King (yes, it would be funnier if his name were spelled “Stephen”), for fraudulently billing Medicare over $50 million for dispensing lidocaine and diabetic testing supplies that Medicare beneficiaries did not need or want.
The scam, which King and his co-conspirators ran through A1C Holdings LLC, involved pharmacies in multiple states. When A1C secured prescriptions and refills on behalf of its pharmacies for medically unnecessary lidocaine and diabetic testing supplies, it violated Medicare and pharmacy benefit manager rules.
Did the company hire King to keep them on the straight and narrow . . . but he strayed? Or did they hire him because they thought he knew how to run and, so they thought, conceal a scam? I have no idea.
However, the jury believed that King and his confederates ran and then took steps to conceal their scheme, including enrolling their mail order pharmacies as brick-and-mortar retail locations to evade more rigorous oversight, shipping prescription refills for high-reimbursing medications and supplies without patient consent, concealing the ownership of A1C Holdings LLC and its pharmacies, and transferring patients among pharmacies without patient consent.
As the DOJ put it in their press release: “King and his co-conspirators took each of these steps to ensure that Medicare continued to be billed for profitable medications and supplies. As chief compliance officer, King was in a unique position to prevent and report the fraudulent scheme, but he used his position to defraud Medicare instead.”
As I’ve mentioned many times on the blog, medical groups and facilities often create whistleblowers – their own compliance officers and other executives flip on them with regularity. Steven King flipped the entire thing on its head. And, as a result, he faces a maximum penalty of 20 years in prison on his conviction for conspiracy to commit health care fraud and wire fraud. His sentencing is scheduled for September 14, 2023.
Although Mr. King served us a heavy slice of schadenfreude, just as compliance, actual compliance, is far more than a compliance plan, he also showed us that compliance is far more than having a chief compliance officer. In fact, sometimes it’s the complete opposite.
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| | | Tuesday - Artificial Intelligence and Artificial Results - Success in Motion
Watch the video here, or just keep reading below for a slightly polished transcript:
Let’s talk about the reality of artificial intelligence, at least as it exists today and how it might be a tool that you could use. We can also talk about how artificial intelligence might be using you.
Let’s start with a little story that comes out of the legal world. It's the story of a lawyer in New York who, together with his law firm, have the problem of having to prove to a judge why they shouldn’t be sanctioned for having filed a brief with the court that cited a number of cases that were completely made up.
It turns out that the lawyer, a partner in his law firm, used AI to “help him” do some legal research and write a brief. [By the way, there are multiple supposedly intelligent artificial intelligence tools that are touted to be able to help lawyers do that very thing.]
It turns out that artificial intelligence has a sense of humor in that it completely made up some of the citations it included in the brief. In other words, it made up case names, legal citations, and the propositions for which the cases were being cited. The judge didn't think it was too funny.
On my own part, I’ve seen "contracts" that have been generated by AI that were so bad that, had they been drafted by an associate, he or she would have been fired on the spot. Note that it's a bit harder to fire Chat GPT.
Artificial intelligence is, at this point in time, just that, artificial.
I know that doctors complain about patients who’ve consulted with Dr. Google, but to be fair, there’s a lot of information out there, far more than anyone individually could have. So Dr. Google might actually be a good thing.
But going further than that and using artificial intelligence to diagnose might be a very bad thing. That's not to say that in some areas, for example (sorry radiologists), interpreting imaging studies may be something that artificial intelligence becomes very good at, very quickly.
At some point in time, artificial intelligence will certainly become a tremendous tool but it could also be tremendously dangerous.
The trick, I suppose, is to use some actual intelligence when using artificial intelligence.
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| | Wednesday - Did You Notice the Notice Provision? - Medical Group Minute
Watch the video here, or just keep reading below for a slightly polished transcript:
Most likely you skipped right over all of those sections at the end of the contract. You know, the ones that you probably call “boilerplate” (that’s what lawyers call them, too).
Most people think that boilerplate is just extra stuff that lawyers toss in. Longer contracts mean more fees, right?
But boilerplate isn’t “extra stuff” at all; in fact, it’s the exact opposite: boilerplate got its name because it provides a protective layer around the rest of the contract, provisions design to help you sure that you get the deal that’s laid out in the deal-related provisions of the document.
Despite the mini-law school lesson above, there’s still a chance that most people gloss right over the boilerplate in an agreement. No, I know that’s not you, but just in case you forward a copy of this blog post to someone else, let’s talk about one of the provisions that is far more important than it appears, the notice provision.
The notice provision is, as its name indicates, the provision describing who gets notice, how that notice must be delivered, and how much notice (i.e., how much time) must be given in order to trigger certain events under a contract, such as giving notice of breach and triggering the allotted time to cure.
In my opinion, there’s no such thing as a standard notice provision. Let’s play with some, but by no means all, of the alternatives and see what you think.
1. Who gets notice? The parties alone or the parties plus someone else, say their legal counsel? If it’s to the parties plus someone else, must both actually be sent the notice or is it that notice to one is required but that the second receives it as a courtesy?
2. If the parties are entities, is notice addressed to the entity itself or to a particular person?
3. How is notice to be sent? By regular mail? By some type of special mail such as registered? By overnight courier such as FedEx? By email? By in person delivery? By more than one method? "Has the analysis changed since the beginning of the Covid pandemic? (No, but it took the pandemic for most to do the thinking.)
4. Is notice effective when it is dispatched or when it is received? What does “received” mean, actual receipt or deemed receipt? What about the kind of provision that says that notice sent by US Mail is effective, say, three days after mailing? It once took over a month for something mailed from our Santa Barbara office to reach the Dallas office—if that were a mailed notice, was I supposed to guess that it was sent and what it stated while it sat in some corner of the post office?
5. Do your answers change depending on whether you think you are the one more likely to receive a notice or the one more likely to send it? Do your answers change depending on what sort of notice you’re most likely to receive or to send? The answers are likely “yes” and “yes”.
We could go on, but this isn’t a post about contract drafting. Instead, it’s a reminder to make sure that you engage in meaningful conversations with your legal counsel over all of the elements of an agreement, not just the ones that say that someone is going to pay you $120,000 a month as a management fee until further notice – oh, you probably noticed that notice bit.
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| | | Listen to the podcast here, or just keep reading for the transcript.
Your group has held the exclusive contract for your specialty services, for example anesthesiology or radiology, for decades, but now the hospital is holding an RFP.
The competitors include the several national and regional management company groups, whose representatives, dressed in the uniforms actually considered the power costume by hospital administrators, well tailored suits not scrubs and lab coats, are scouring the hospital interviewing administrators, managers and the physicians who have, up until now, referred their patients to you.
You've had years to do the same: to create an experience monopoly – yet if you're like most groups you haven't and now you are witnessing a crash course. The price of admission might just be your career.
Of course, those "suits" don't deliver patient care, even if they once did. They are all sizzle and no steak. The problem is, administrators like sizzle.
In the long run, the sizzle is seen for what it is, sound and smoke, and when it clears away and patient care is at stake, administrator heads often roll. That might just be cold consolation for you, as by then you will probably be long gone.
The solution is to deliver both the steak and the sizzle. You're in the kitchen right now. Get cooking.
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| | | 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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| | | | 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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