Experienced Health Care Fraud Defense Lawyers Discuss about the ZPIC Audit Process
Former Medicare Prosecutors & Defense Counsel
The 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.
While prosecutors may not be privy to all the evidence collected by a ZPIC Audit, certain problematic factors discovered during the audit will be flagged in the information sent by the auditor. Simply put, anything that indicates a likelihood that that the provider did, in fact, engage in fraud is shared with the prosecutor. In order to fully appreciate the importance of maintaining both compliance and the perception of compliance, providers should understand that the following categories of information are regularly shared with prosecutors:
Documented Warnings and Educational Contacts
The red flags that are made privy to prosecutors include documented warnings by the ZPIC and other government agencies to the healthcare provider before, during, and after an audit. Such documentation might include things like regular discrepancies and mistakes in coding or billing for unperformed services. Where a provider receives documented warnings about errors in coding and billing, it is expected to correct the problems, or when legal action is taken by the government, provide an explanation of why such errors occurred.
Educational contacts, i.e. those from whom prosecutors can gather pertinent information and evidence on the matter, are also shared with the prosecutors. While the exact information derived from each individual might not be given to the prosecutors, sharing the names of those with information serves as a guide to aide prosecutors in discovery. It is important for providers to understand that prosecutors are subject to discovery rules that ZPIC auditors may not be. Therefore, they do not enjoy the same broad power of demanding documentation.
The Complaints and Result of Previous Investigations
The government has multiple administrative means through which it can take corrective action against healthcare providers suspected of intentional or unintentional wrongdoing. A ZPIC Audit is one such administrative process. Copies of the initial complaints that led to a ZPIC audit are given to prosecutors to help them understand the nature of the case. Because Medicare and other agencies often have more investigative capabilities than prosecutors, who are subject to rules of discovery, the results of those investigations are given a lot of weight. The disposition of the case, i.e. whether it was referred to another agency, closed, payment recouped, or provider educated are factors that the U.S. Attorney’s Office considers reflective of the probability of success in prosecuting the previously-investigated providers. Therefore, the law permits prosecutors to be made privy to the results of previous investigations.
Files Within the Retention Period
The Medicare Program Integrity Manual states, with regards to file retention, that: “Files/documents shall be retained for 10 years. However, files/documents shall be retained indefinitely and shall not be destroyed if they relate to a current investigation or litigation/negotiation; ongoing Workers’ Compensation set aside arrangements, or documents which prompt suspicions of fraud and abuse of overutilization of services.” This will satisfy evidentiary needs and discovery obligations critical to the agency’s litigation interests.
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