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Washington Perspective

Engaging the federal government on Medicare's antifraud program

From the November 2000 ACP-ASIM Observer, copyright © 2000 by the American College of Physicians-American Society of Internal Medicine.

By Robert B. Doherty

When faced with a threat from the federal government, physicians can react in several ways. They can choose confrontation and resistance, refusing to go along with rules they find objectionable. The course of resistance has emotional appeal, but it can lead to a loss of public support—and even fines or jail—if physicians are viewed as lawbreakers fighting for their own interests rather than what is best for their patients.

Physicians can choose to withdraw from a fight. Withdrawal may be a sound tactical decision if it means conserving resources to fight more important issues. But the strategy can also readily lead to defeatism if it is based on the cynical view that trying to change objectionable government policies is a waste of time.

Engaging government

Another course of action is to engage the federal government and discuss concerns and possible remedies. Engagement carries certain risks. For one, it usually results in compromise and requires a willingness to accept less than what was originally wanted. In addition, physicians risk becoming co-opted and can end up defending governmental policies that remain unacceptable to most of their colleagues.

The federal government's efforts on Medicare fraud represent a classic example in which physicians had to decide among confrontation, withdrawal or engagement. Many physicians viewed the federal government's antifraud campaign as a direct attack on their professional integrity. They decried rhetoric from politicians and bureaucrats suggesting that many in Washington saw doctors as potential crooks, not honest caregivers.

How did the medical profession respond to the antifraud campaign? Some physician organizations chose the route of confrontation, blasting the federal government and rebuffing efforts to reach common ground. A few chose to withdraw from the fight because they had no confidence that anything would change.

ACP­ASIM, however, took the route of engagement. Over the past year and a half, the College has met repeatedly with the Office of Inspector General (OIG) for the Department of Health and Human Services, the principal author of the federal government's Medicare antifraud campaign.

Toning down the rhetoric

Largely because of ACP­ASIM's efforts, the OIG has dramatically toned down its rhetoric about Medicare fraud.

The OIG, in partnership with the Department of Justice and the AARP, launched the "Who Pays? You Pay" campaign in the beginning of 1999. The purpose of the campaign was to encourage Medicare beneficiaries to review their medical bills and call the Medicare fraud hotline to report possible fraud. Unfortunately, the campaign's initial educational materials seemed to cast aspersions on honest physicians, not just wrong-doers.

The OIG later insisted to ACP­ASIM officials that it never intended to question physicians' honesty. OIG officials did agree, however, to rewrite the campaign's public education materials based on the College's recommendations. The new materials emphasize that most physicians are honest.

The materials advise patients to direct any questions about bills first to their physicians and to contact their Medicare carrier only if they remain unsatisfied with their physicians' explanations. The Medicare fraud hotline is offered only as a last resort when other steps are unsuccessful.

Practical compliance issues

It is not enough for the OIG to simply change its tone, however. The real test of engagement is whether or not the OIG is willing to consider the practical impact of its policies on physicians and make changes as a result. Here, too, the results have been positive.

Until recently, physicians knew they operated in an environment of greater scrutiny, but they didn't know how to prevent government audits. Consultants stepped into the void and attempted to sell doctors compliance programs that could cost thousands of dollars and require countless hours to implement.

The College decided it would be better for the federal government to tell physicians what they could do voluntarily to reduce the chances of being audited. In response, the OIG announced plans to develop "compliance guidance" for physicians, as it has done for other health care professionals. ACP­ASIM emphasized that for compliance guidance to be useful, it had to be practical, flexible and nonthreatening to physicians.

Last spring, the OIG published a draft compliance guidance for physicians. The College reviewed the guidance and gave the OIG detailed recommendations to make the guidance simpler, more practical and more acceptable to physicians. We arranged for the OIG to meet with practicing internists to discuss the practical side of compliance. We were the only medical organization to do so.

The revised OIG compliance guidance published in October reflected most of the College's recommendations. (In fact, the OIG credited ACP­ASIM with providing the most helpful comments of all the organizations that responded.) The new guidance emphasizes that it is completely voluntary; it is not required to be used by physicians in their offices. It is flexible and provides a variety of options for physicians to prevent fraud and costly billing errors.

The guidance asks physicians to engage in "active application of compliance principles"—a phrase recommended by the College—rather than holding physicians to a rigid set of prescriptive rules. It deleted threatening references to federal sentencing guidelines and clarified that physicians need not hire a full-time compliance officer or professional coder. The guidance presents seven recommended steps in order of priority, but the OIG acknowledges that physicians need not implement all seven elements in order to have an effective compliance program.

The new guidance didn't give the College everything that it wanted. For instance, we asked that OIG release a much shorter version of the guidance. There is no question, however, that the new document is "kinder and gentler"—and more practical and flexible—as a result of the College's efforts.

Further progress

The College continues to have the OIG's ear. ACP­ASIM has repeatedly told the OIG that reimbursement incentives should align with the goal of increasing physician involvement in certifying the need for home health care. With the OIG's support, HCFA recently proposed to pay physicians directly for certification and recertification of home health care (to the tune of about $61 for certification and $31 for recertification). The OIG is now working with the College on a comprehensive study of physician involvement in home health care.

Confrontation and resistance would not have achieved the same results. The public and its elected lawmakers want to see fraud reduced, and the medical profession could not risk being seen as standing on the wrong side of this issue. Withdrawing from the issue would have meant accepting a heavy handed, impractical approach. Constructive engagement to discuss internists' concerns and possible solutions was, and remains, the best way to achieve the College's objectives.

Robert B. Doherty is ACP­ASIM's Senior Vice President for Governmental Affairs and Public Policy.

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