The Top 25 Mistakes Physicians Make in DOH Investigations

LYNNE JETER

Orlando Area Health Attorney Warns Against Taking Action That Could Lead to Medical License Revocation

George F. Indest III, a board-certified health lawyer practicing in Altamonte Springs, knows all about the pitfalls physicians face when notified of a Department of Health (DOH) investigation. He understands how making the wrong moves could result in the revocation of a physician's license following the investigation of a complaint—all unnecessarily so.

"It usually starts with a simple letter from the Department of Health," said Indest, founder and managing partner of The Health Law Firm. "This is a very serious legal matter and it should be treated as such by the physician who receives it. Yet in many cases, we're consulted by physicians after the entire investigation is over and they've attempted to represent themselves throughout the investigation of case. Often, the mistakes that have been made severely compromise our ability to achieve a favorable result for the physician."

Board-certified by the American Board of Risk Management as a healthcare risk manager, Indest's practice encompasses business, corporate, transactional, regulatory and administrative health law. He represents physicians, nurses, hospitals, home health agencies, long-term care facilities and other healthcare providers. Among other roles, Indest served as in-house counsel at one of the Navy's largest teaching hospitals and was also in charge of the legal and medical risk management programs in the Navy's largest regional healthcare system.

Coming Soon: RAC Audits


What to Expect, How to Prepare

By LYNNE JETER

Last October, The Centers for Medicare and Medicaid Services (CMS) quietly implemented a permanent program to identify "improper Medicare payments and fight fraud, waste and abuse" after a demonstration/pilot program involving Recovery Audit Contractor (RAC) audits showed nearly $100 million in overpayments being returned to the Medicare Trust Fund between 2005 and 2008.

Making the Short List

Florida is among 19 states assigned to four national RACs that CMS plans to have in place by 2010. Connolly Consulting Associates Inc. of Wilton, Conn., will cover Region C, which includes Florida. South Carolina is the only other southern state on the initial assignment roster. Additional states will be added to each RAC region later this year.

RAC Audits are Different

Drawing on HPMP and CERT methodology and data to build an automated, ongoing denial system, RAC contractors will be paid on a contingency fee basis and will receive financial incentives to identify errors.

How They Work

RACs handle audits by reviewing medical and billing data. Automatic reviews involve a computerized analysis of claims and coding practices using existing databases, and the identification of errors such as duplicate billings and inappropriate bundling or unbundling of claims. Complex medical reviews call for billing and coding experts to review samples of medical records and billing documentation. These reviews identify billing errors and also lead to denials in payment based on assertions of "no medical necessity" and "incomplete documentation."

Red Flags

RACs plan to use existing auditing procedures, which will give them an infrastructure to complete audits and demand overpaymentretroactive to their first day of operation. They will determine whether documentation for medical services provided meet the Medicare guidelines for payment and whether the services are medically necessary.

How to Prepare

To get ready for RAC audits, adopt an electronic medical record (EMR) system, make sure the billing staff (in-house or contract) is properly qualified, trained and provided with continuing education, and use certified billing and/or coding experts on an annual or biennial basis to ensure compliance, update templates and train staff.


Indest pointed out the leading mistakes physicians make in the cases his firm is called on to defend after a DOH investigation has been initiated:
  1. Failing to keep a current, valid address on file with the DOH, as required by law. This oversight may seriously delay the receipt of the DOH letter and case summary (notice of investigation), subpoenas, letters and other important correspondence related to the investigation.
  2. Contacting and then providing the DOH investigator with an oral statement or interview, even though there is no legal requirement.
  3. Making a written statement in response to the invitation extended by the DOH investigator. Again, there is no legal requirement.
  4. Failing to carefully review the complaint to ensure it has been sent to the correct physician.
  5. Failing to ascertain whether the investigation is on the "fast track," which may then result in an emergency suspension order (ESO), suspending the physician's license until all proceedings are concluded. Fast track cases usually involve allegations of drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions, but may also include other issues.
  6. Providing a copy of the physician's curriculum vitae (CV) or resume to the investigator because the investigator requested it, even though there is no legal requirement.
  7. Believing that if they just explain the situation, the investigation will be closed and the case dropped.
  8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds for it.
  9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, if no objection is going to be filed.
  10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided to DOH.
  11. Failing to keep an exact copy of medical records, documents, letters and statements provided to the investigator.
  12. Believing the investigator has knowledge or experience in hospital procedures or the medical matters or procedures being investigated.
  13. Believing the investigator is merely attempting to ascertain the truth of the matter, which will result in the matter's being dismissed.
  14. Failing to see if their medical malpractice insurance carrier will pay the legal fees to defend them in the DOH investigation.
  15. Talking to DOH investigators, staff or attorneys in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
  16. Believing that because they haven't heard anything for six months or more, the matter has "gone away." The matter never just goes away! A case is only closed when the physician receives a formal letter denoting such from DOH.
  17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report, and then following up with additional requests until the report is received.
  18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist in defending the case.
  19. Failing to exercise the right of submitting documents, statements and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
  20. Taking legal advice from colleagues regarding defending themselves in the investigation.
  21. Retaining "consultants" or other non-lawyer personnel to represent them.
  22. Believing the case is indefensible and therefore not requesting a dismissal by the Probable Cause Panel.
  23. Attempting to defend themselves.
  24. Believing that influence can be exerted to have the case dismissed because they know someone on the Board of Medicine, with the DOH, or a state official.
  25. Failing to immediately retain the services of a healthcare attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.


    26. "It's understandable that physicians should make such mistakes," said Indest. "However, their biggest mistake is forgetting that this is a legal process that begins with notice to the physician … and does not end until the entire proceeding has run its course. There are rarely any shortcuts and the matter is never closed until the physician receives formal written notice of that fact."