10 Things You Need to Know About OWCP Billing & Compliance
Experienced Federal Attorneys and Expert Billing Consultants Help OWCP Clinics to Prevent DOL Billing Mistakes
Did You Know that Just a Few Wrongly Submitted DOL Claims Can Trigger Liability in Excess of $ 100,000? Billing for Department of Labor medical services is among the most challenging things in healthcare. For one, the rules are not well explained and guidance from the Department of Labor is virtually non-existent. For another, you can’t experiment with OWCP billing because the mere possibility of becoming a target of U.S. Department of Labor, U.S. Postal Inspection, Office of Inspector General, and FBI scrutiny as the supervising federal agencies is too scary of a thought to risk any mistakes. The following article, co-authored by former Department of Justice prosecutors previously in charge of healthcare fraud (including: Department of Labor) investigations, is meant to provide a brief summary of some of the typical OWCP billing and FECA violations.
Strict Rules, Rigid Enforcement: Oberheiden PC Can Help.
Oberheiden P.C. is a team of former Justice Department officials and attorneys with substantial experience with FECA, OWCP, and DOL billing and compliance. Several of our attorneys have previously supervised federal healthcare fraud investigations involving Department of Labor claims and offer clients valuable insights into what the government investigates when it comes to OWCP clinics. We are available for free and confidential consultations. Don’t gamble with your billing, don’t continue the same mistakes with your compliance—call Oberheiden PC today and get trusted and reliable advice.
1. DOL Is Not Medicare
DOL clinics and billing companies get it wrong—all the time. OWCP is not Medicare! Even though both are federal healthcare reimbursement programs, the rules between Medicare and federal workers compensation have very little in common. Virtually all aspects of DOL billing must be seen as highly specialized services and just because a biller knows something about Medicare or Medicaid does, by no means, qualify her as an expert in FECA compliance. It is not just the choice of codes but also the sequence of physical therapy treatment that are dramatically different. In fact, experienced OWCP biller will tell you that the Department of Labor billing rules are the most unique of all healthcare billing with little to nothing in common with what would be an accepted billing practice otherwise. Under the OWCP billing regiment, many treatment options are mutually exclusive. Chiropractors do not have the same standing as they have under Medicare creating critically important consequences when it comes to adequate medical supervision. Acupuncture, well established under most healthcare programs, is one of the greatest pitfalls when it comes to federal workers compensation. The list of important differences is long. When you select your billing staff, note that experience in personal injury, Medicare, and Blue Cross Blue Shield billing may not be enough to guarantee flawless billing of OWCP claims. Call the DOL billing and compliance consultants at Oberheiden PC today to make sure your OWCP billing does not catapult your business onto the government’s radar.
2. False Claims Act
All claims submissions involving federal payors, like services for federal workers compensation, are subject to the False Claims Act. Under the False Claims Act, liability arises when a claim is submitted, or attempted to be submitted, for reimbursement— that is objectively false. False simply means that the payment/reimbursement sought is not justified because the services was actually not provided, should not have been provided, or was billed/coded incorrectly. In the context of DOL claims, the False Claims Act is frequently used to target incidents of upcoding, bundling, and false coding. Two facts about the False Claims Act are important to realize. One, the False Claims Act does not require intent. In other words, the government does not need to prove that the billing submission was part of an intentional, willful fraud scheme. The mere fact that the DOL provider “should have known” that the billing was wrong (e.g. by conducting better research, by hiring a better qualified billing company, by training in-house staff differently etc.), is sufficient to establish liability. Two, as a consequence of incorrect claims submission, a single incorrect claim allows the government to demand penalties, overpayment recoupments, and government attorney fees in the tens of thousands of dollars—even if the submitted (but incorrect) claim only asked for as little as, for example, $ 129.00 of reimbursement.
One of the fastest ways to get on the government’s radar is to routinely and systematically use codes that the government considers inherently suspicious due to their reputation for upcoding billing fraud. One such code is 99204 (99214). Going to the issue of documentation (see below), these codes are almost never appropriately utilized unless the documentation is strong and clearly and compellingly states what services were provided, by whom, and how. In general, OWCP clinics should restrain from using any elevated code on a routine basis.
4. Wrong Supervision
Perhaps the most common mistake when it comes to physical therapy billing of federal employees is clinical supervision. A recent federal indictment exemplifies the problem. What is true and correct for most healthcare programs, does not apply to Department of Labor. The use of chiropractors, massage therapists, or doctors of acupuncture is subject to a set of rules unique to Department of Labor. In most situations, a chiropractor does not meet the requirements of a recognized supervisor and services performed by a DC may not be recognized under FECA. As a consequence, a claim submitted in disregard of those special regulations—even if submitted with absolutely no fraudulent intent—may lead to False Claims Act liability. Worse, a routine FECA violation, can lead to criminal investigation. Oberheiden PC has defended OWCP business owners across the United States in DOL clinical supervisor investigations. Please call us today to explore together whether your practice is compliant with FECA supervision requirements.
5. Documentation Is Key
Among the most neglected and underestimated aspects of running a healthcare clinic is documentation. Lack of time leads to lack of detail; lack of detail leads to lack of justification; and lack of justification leads to lack of medical necessity. The first line of defense for every provider is documentation. At Oberheiden PC, we understand that writing detailed reports twenty-five times a day is time-consuming and seemingly ineffective. Nonetheless, we strongly advise against medical notes that are not tailored to the individual patients but are just generic and universally applicable. Specifically for DOL clinics, we have advised physicians, physical therapists, and other providers how to create convincing notes without jeopardizing other clinical obligations. Ask us about our proven OWCP templates. We do not rush to a conclusion of necessity, we offer individual, patient tailored explanations. Call us and discuss with us how to implement better notes.
6. Compliance Program Is Mandatory
Everyone talks about compliance; few are actually compliant. Compliance is not about what you want it to be but what efforts you have undertaken to actually be compliant. The government will not take an x-ray of your brain to determine whether you had good intent. When you get caught with mistakes in a FECA audit, OWCP billing investigation, or FBI search warrant—the burden to prove your compliance is on you. To be clear, compliance is not about having some outdated HIPAA policies in place. OWCP compliance, that is compliance in the context of running a federally funded healthcare program, mandates significant efforts to eliminate criminal intent. That’s what compliance is all about—destroying criminal intent. Mistakes can still happen, even with the best compliance program, but those mistakes will then be considered accidents rather than fraud. If you are serious about DOL compliance, then you should speak to the experienced former federal healthcare fraud prosecutors and DOL defense attorneys at Oberheiden P.C. Our DOL compliance package is comprehensive and addresses those items that incentivize OIG, DOL, and FBI agents to target a different company—and not you, because they know that an effective compliance program is a powerful shield and defense against any federal audit or investigation.
7. Be Careful with Side Businesses (Pharmacy, DME)
There are two problems with ancillary services in connection with DOL. One, you need to make sure that referrals from one place to another are structured in a way to not violate Stark Law. Many ancillary services cannot be referred when the referring physician or his immediate family member has a financial interest in the referral. That financial interest can be indirect or remote. For example, a physician works at DOL Clinic A. He then sends a patient from DOL Clinic A to DME Clinic. If the physician is paid as a director for either DOL Clinic A or DME Clinic, Stark Law may apply. Consult with experienced lawyers before you engage in these kinds of arrangements! The second problem with DME, pharmacy, toxicology and other services is that outside vendors who want your business, tend to make dangerous offers to convince you to use them rather than a competitor. They may offer partial lease payments, creative contracts, or other forms of reimbursement. Be very very careful. If you run an already highly scrutinized DOL clinic, the last thing you want to run into is a kickback investigation. Under the federal Anti-Kickback Statute, referrals are prohibited if a single purpose of the referral is to obtain any form of remuneration (e.g. payments, cash, basketball tickets, free lunches) in exchange. Is it possible to integrate ancillary revenue into your PT practice: absolutely? Given the risks involved, advice and guidance from counsel is recommended!
8. Your Website Is Probably Violating HIPAA
9. DOL Marketing Is Tricky
When it comes to marketing, recruiting federal patients is subject to federal healthcare law and the federal Anti-Kickback Statute. Discuss with Oberheiden PC how not to structure a 1099 marketing agreement, whether to use W2 employees instead, what not to include in your marketing brochures, how not to advertise to federal employees, how to compensate your marketers, whether it is appropriate to work with union members, and where to draw the line between allegations of federal bribery and appropriate union contacts. Any violation in any of these areas may constitute a federal felony. Don’t experiment. Hire experience. Call us for a free and confidential consultation today.
10. The Ultimate Test: Medical Necessity.
Finally, even if all billing is done correctly and all coding appropriately, DOL clinics are still being attacked. This time, not for the technicalities of billing itself but for submitting claims that are medically not necessary. In the context of OWCP, medically inappropriate treatment is typically overtreatment. The conservative FECA rules do no longer (arguably they did some 10 years or so ago) allow quasi-unlimited treatment. 40 sessions of physical therapy, essentially no problem in the past, can now be questioned as medical overkill and can lead to flagging the clinic for failure to discharge patients. Sadly, some patients are really trying to get better, but under this regiment their time to get better is limited. They are expected to return to work, be it even on a limited basis. All physical therapy and workers’ compensation clinics are therefore well-advised to work closely with medical specialists who find the right balance between patients’ clinical needs and OWCP expectations of expedited treatment. Reach out to Oberheiden PC to find out how to document this balance and how to help patients efficiently in a legally sound way.
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We represent clients in need of qui tam defense, involved in False Claim Act investigation, facing federal criminal charges, and in other legal matters.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.