“Bring On the Fraud Enforcers: We Have Nothing to Hide!” by Elizabeth E. Hough, Esq.

Oh, but you do! Statements like this from providers are cringe-worthy.  If you have said it before, please don’t ever say it again.

Here’s why:

First, many providers think that when fraud enforcers are required to show intent they must show that providers sat down at their desks on a Friday afternoon, for example, and decided to engage in fraud. On the contrary, enforcers can demonstrate intent by showing that there was fraudulent conduct that providers knew about or should have known about. This is a game changer! It’s not hard to imagine fraudulent conduct that providers should have known about, but have not identified and corrected.

 In addition, George Will points out in his column, “Have you committed a felony yet? Probably so.” that appeared in The Washington Post on August 30, 2024, that the volume of legal requirements has skyrocketed. Here is what Mr. Will says:

Less Than a Century Ago

“Less than a century ago, …a single volume contained all federal statutes. By 2018, they filled 54 volumes – about 60,000 pages. In the past 10 years, Congress has enacted about 2 million to 3 million words of law each year. The average length of a bill is nine times what it was in the 1950s. Agencies publish their proposals and final rules in the Federal Register, which began at 16 pages in 1936, and now expands by an average of more than 70,000 pages annually. By 2021, the Code of Federal Regulations filled about 200 volumes. And in a recent 10-year span,federal agencies churned out approximately 13,000 guidance documents.”

Mr. Will goes on to point out that ignorance of the law is, therefore, inevitable. Congress has added an average of 56 new federal crimes each year so that there are now more than 5,000 federal statutory crimes. In addition, at least 300,000 regulations of federal agencies include criminal sanctions.

 Here are some common examples:

If you are a discharge planner/case manager in a hospital or skilled nursing facility you may not know about guidance from the Office of Inspector General of the U.S. Department of Health and Human Services that says you can’t accept gift cards from post-acute providers that want referrals.

If you are a home care/private duty provider and accept payments from the Medicaid Program, you may have repeatedly violated technical requirements, such as recording the time caregivers arrive and leave patients’ homes.

If you provide home health services and use the services of consulting physicians as Medical Directors, chances are very good that fraud enforcers will demonstrate that you violated at least one of a multitude of requirements that govern these relationships.

Finally, hospice providers know all too well that enforcers are going to claim that their patients are not terminally ill.

Mr. Will says in his column that James Madison predicted our current situation in which laws are “so voluminous that they cannot be read, or so incoherent that they cannot be understood” and “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

So, don’t even think that you have nothing to hide, much less say it!

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Elizabeth E. Hogue, Esq., is an experienced attorney specializing in health care law. She has an extensive background representing a variety of health care providers across the U.S., including hospitals, long-term care facilities, home health agencies, and hospices. With a career spanning decades, Elizabeth has authored over 650 articles and several books focused on critical legal topics for health care providers, such as compliance, fraud and abuse prevention, and contracting. She has also delivered over 1,000 presentations on health care law, sharing her expertise with professionals in the field. Elizabeth’s dedication to supporting the home care industry is well-recognized, making her a trusted legal resource in health care compliance and advocacy.

©2024 Elizabeth E. Hogue, Esq. All rights reserved.