Oberheiden & McMurrey – ZPIC Audit Defense Lawyers
Former Medicare Prosecutors & Defense Counsel
Oberheiden & McMurrey, LLP advises clients from across the country with ZPIC audits, OESSA forms, and hospice and home health certifications. Our team of former federal healthcare prosecutors, many of which previously held positions involving oversight of ZPIC audits and related issues, offer clients a wealth of government and private practice experience when it comes to avoiding and defending civil and criminal healthcare investigations, and ZPIC audits in particular.
Purpose of ZPIC Audits
The primary purpose of a ZPIC Audit, as opposed to a random inspective audit, is to identify fraud. If a provider is selected to undergo a ZPIC Audit, it is either because it is already the subject of a fraud investigation, or ZPIC is seeking to gather more information to determine whether such an investigation should be opened. Therefore, providers should recognize that a ZPIC Audit is never random and should practice utmost vigilance in promptly and effectively responding to documentation requests from ZPIC.
Almost all providers are susceptible to the intrusive demands of a ZPIC Audit. This is because ZPIC auditors are responsible for investigating all Medicare-related fraud claims involving Parts A and B (hospital, skilled nursing, home health, provider and durable medical equipment claims), Part C (Medicare Advantage health plans), Part D (prescription drug plans) and coordination of Medicare-Medicaid. ZPIC has assigned an auditing group for each of seven different regions which include all 50 states, Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and the Mariana Islands.
Few Limitations Placed on ZPIC Auditors
ZPIC auditors have far fewer limitations on the kind of information they can obtain and the means they can implement to obtain it than any other audit that is performed by CMS. When Medicare has enough reason to suspect fraud to institute a ZPIC audit, the rules and regulations give it all the tools it needs in order to confirm the suspicion. It is important that while maintaining an utmost degree of cooperation, providers seek guidance from legal counsel about their rights against overly broad or impractical government requests. Nonetheless, Medicare providers need to know some of the explicit allowances granted to ZPIC auditors in order to avoid fruitless objections that can make the audit process more lengthy, costly, and caustic than it needs to be.
First, providers must know that there is no look-back period on ZPIC Audits. The rules and regulations allow the OIG to request documentation from any prior coding by the provider, regardless of changes in business practices or personnel since the original code was billed. Second, ZPIC auditors have no limit on document requests. It is in the provider’s best interest, therefore, to make documentation as well prepared and as easily accessible as possible. Doing so can avoid significant costs and delays throughout the course of the ZPIC Audit. Third, ZPIC permits auditors to collect information on-site from various people and departments at the provider’s place of business. The auditors may visit the provider’s site without notice and may interview the provider’s employees and beneficiaries. Though this may seem unreasonably intrusive to many providers, it is important that providers comply with such requests. Fourth, ZPIC auditors use complicated data analysis methods that are difficult to assess for accuracy. For example, auditors often use probe sampling, statistical sampling & extrapolation. In order to ensure that these methods of analyses have been instituted accurately and fairly, providers should consult legal counsel that has substantial experience in dealing with such investigations. Finally, and perhaps most importantly, providers must know that ZPIC auditors have the right to withhold payments from federally-funded programs. For providers that rely heavily on federal payers, this can be the most detrimental aspect of a ZPIC audit. Withholding of payment is often an area where negotiations can be of greatest benefit to the provider.
Authority and Reimbursement of Auditors
It is important for providers to know what authority auditors have during and after a ZPIC audit and how they are reimbursed. Understanding the motivations and capabilities of auditors, and how those two factors interact, will help a provider better understand how to be cooperative while also ensuring a fair audit.
As stated above, auditors can withhold payments of bills submitted by providers to Medicare. The Medicare Program Integrity Manual states that a payment suspension may be used when there is: (1) reliable information that an overpayment exists, but the amount of the overpayment is not yet determined; (2) reliable information that the payments to be made may not be correct; and (3) reliable information that the provider fails to furnish records and other essential information necessary to determine the amounts due to the provider. The manual notes that in cases of suspected fraud, a payment suspension may be used when there is a credible allegation of fraud. Therefore, ZPIC auditors have strong discretion in determining whether to withhold payment. Providers must know this and be prepared to account for this reduction in revenue.
ZPIC auditors may seek recoupment from the provider even if the investigation does not lead to a case if the auditor determines that the provider was overpaid on any particular bill or bills. Recoupment may be ZPIC’s strongest tool short of referral to the DOJ or OIG for further investigation or prosecution. If the auditor demands recoupment, it is critically important, from both a legal and business standpoint, that each bill is reviewed in depth. Demands for recoupment can be more extensive than necessary, depending on how the recoupment amount is calculated. Reviewing each bill on which recoupment is demanded is critical in ensuring that the provider is not paying more than necessary.
Understanding how auditors are reimbursed can help providers both keep them accountable and help them conduct the audit as efficiently as possible. Although ZPIC auditors are not paid on contingency fees, performance bonuses do exist. Providers must understand that ZPIC auditors, unlike in other randomized audits, begin the performance of their job with a suspicion of fraud, and are searching to find evidence to back up their suspicion. It is important that in that effort, providers are forthright and cooperative, but also vigilant in keeping a check on the auditor. This can be done by maintaining a chronology of all communications with the auditor. With this understanding, and an understanding of the other factors mentioned above, a provider will be well-informed and prepared for any demands of a ZPIC Audit.
Our Experience with ZPIC Audits
Thousands of ZPIC audit requests are made every year. Oberheiden & McMurrey, LLP has extensive experience advising and counseling clients during the ZPIC audit process. The Firm also has an impeccable track record when it comes to achieving favorable outcomes in ZPIC audits and avoiding referral to the Department of Justice for further investigation or prosecution. The experience of our attorneys, many of which served the Department of Justice until recently as supervising healthcare fraud prosecutors, covers all aspects of healthcare compliance as well as effective defense strategies. Because we know what type of information the government is looking for, we can prepare our clients to avoid common mistakes.
Our ZPIC Audit Attorneys
Our team has successfully defended business owners, healthcare executives, and medical professionals through ZPIC audits and other cases involving the Federal Bureau of Investigation (FBI), the Medicaid Fraud Control Unit (MFCU), the Office of Inspector General (OIG), the Department of Justice (DOJ), the Department of Defense (DOD), the Internal Revenue Service (IRS), and other law enforcement agencies.
Attorney Lynette S. Byrd focuses her practice on civil and criminal litigation, Medicare and insurance audits, and general advice and counseling in health care law. She is a former Assistant United States Attorney with years of substantial trial experience under her belt who merges excellent litigation skills with profound understanding of the law.
Call us today and speak to one of our experienced ZPIC audit attorneys directly. We are available to discuss your situation in a free and confidential call, including on weekends.
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Oberheiden & McMurrey, LLP
Compliance – Litigation – Defense