Or maybe it’s the combined federal government-AARP Medicare whistleblower "Who Pays? You Pay!" initiative, recently reporting that 78 percent of AARP’s members believe that health care fraud is either somewhat widespread or extremely widespread, with 11 percent of AARP’s members suspecting that they have personally encountered fraudulent billing.

Or maybe it’s the federal government’s own whistleblower initiatives, such as CMS’ "Pay it Right!" program, or one of the dozens of other state and private initiatives nationwide. CMS recently boasted a record number of health care fraud investigations and prosecutions, winning or negotiating more than $1.7 billion in judgments, settlements and administrative impositions in 2001 alone, with 1,746 civil matters remaining pending, 445 criminal indictments and 3,756 exclusions from participation in government funded programs.

In addition to the above litigious and/or prosecutorial ventures, each of these organizations regularly provides the public with information on their own successes, as well as on how individuals can personally benefit by reporting billing fraud and abuse, in both government funded and private health care payer contexts.

Regardless of the source, chances are that virtually every one of your patients and employees has been encouraged to fully review their activities with you, including their invoices and explanation of benefit forms, and has been educated on how they can personally benefit should they find that you have falsely billed for your services. And the benefits can be enormous: if recoveries are obtained, whistleblowers can obtain significant monetary rewards, including in some cases between 15-30 percent of the total recovery obtained, plus their attorneys’ fees and costs, sometimes mounting into the tens or even hundreds of thousands of dollars.

For these and other reasons, even the most honest and scrupulous of practices can find themselves answering questions regarding their billing for services. Of more concern, behind some these questions can be motivations of personal financial benefit, and even if fraud or abuse has not been committed, physicians can incur tremendous costs defending themselves against these allegations. As a result, not only is it important that physicians bill accurately for their services, but it is more important than ever that physicians try to avoid these allegations entirely by appropriately responding when questions about their billing arise.

When addressing billing questions, two primary goals should be actively pursued. First, you should gain or maintain the confidence of the person posing the questions. By achieving this goal, you help to ensure that the person will not turn to outside sources for answers, raising the specter of potential litigation or an outside investigation. Moreover, by gaining their confidence you can obtain a full portrayal of the potential problem, gaining valuable information for your own investigation. To achieve this goal, begin by talking with the person in an interested, helpful and non-confrontational manner. If you cannot confidently answer their questions right away, tell them that you will address their questions quickly, honestly and completely, and assure them that you will get back to them with a full explanation, and if appropriate, a remedy to any problems, on a timely basis.

As part of this conversation you should obtain as much information on the perceived problem as possible. In any case, be sure to follow through with your investigation as quickly as reasonably possible and get back to them, if possible, within several days. If a problem is discovered, quickly responding will minimize their incentive to take their questions elsewhere. Additionally, applicable legal guidelines may provide you with significant advantages in completing your investigation and analysis within 30 days of the discovery of any problems.

Your second goal should be to discover the truth of the matter and to fully correct any errors, while maintaining the integrity of your reputation. When appropriate, self-reporting should also be considered. By faithfully pursuing this goal you demonstrate your personal integrity, while ensuring your compliance with applicable professional and legal standards, and minimizing any potential legal and financial ramifications. Your investigation should include collecting, securing and reviewing documents related to the issue at hand, such as copies of relevant portions of the medical record, superbills, notes and claims. You should confidentially review the documents with the persons involved in the process, with an eye towards determining the validity, nature and scope of the potential problem, and if the problem is founded, an estimation of its financial magnitude. It is helpful if you limit your interviews to the persons who are necessary to obtain a complete investigation; confidentiality is important, and is easier to maintain when fewer people are involved in the process.

In this course you should also review your own internal management and procedures as they relate to the potential problem, including the adequacy of the training of the persons involved, the individuals’ understanding of the relevant laws, regulations, rules and protocols, the identification of those persons with supervisory responsibility over the subject process and any weaknesses in your practice’s corporate compliance program.

If at any time in the course of your investigation it appears that the problem may be founded, you should immediately make an important decision: whether or not to contact your attorney prior to moving forward. In most cases, contacting your attorney is not necessary. As a general rule you can correct a billing mistake by correcting the error and returning any overpayment to the patient, insurer or carrier.

A mistake is an error due to simple negligence, after diligent and duly responsible attempts to know, understand and apply all of the relevant laws, regulations, rules and protocols. If a mistake has been made, admit it and rectify it immediately. If it involves an incorrect payment by your carrier or a private insurer, contact the carrier or insurer and ask how to go about correcting the situation. Some will ask you to wait until they send you the appropriate paperwork. Others will ask for a repayment, returned with a written explanation and the Explanation of Benefits form. It can be helpful for future correction of errors and as evidence of your repayment efforts to log all corrections for tracking purposes, including the patient’s and insurer’s identifying information, the date and amount of the payment received, an explanation for the correction, copies of all relevant paperwork, the date and the amount of the correction and the initials of the employee issuing the correction.

After the error has been corrected consider the reasons as to why the mistake occurred and take appropriate action designed to ensure that the mistake does not occur again. Appropriate action may include educating your physicians and/or staff, or developing and implementing appropriate policies and/or procedures and/or appropriate disciplinary action.

If at any time it appears possible that the problem may not have been the result of a mistake, but instead may have occurred without diligent and duly responsible attempts to know, understand and apply all of the relevant laws, regulations, rules and protocols, or may have been the result of intentionally billing incorrectly, the situation is much more serious. This situation could arise as a result of a number of factors, including but not limited to significant violations of seemingly clear or longstanding regulations, rules or protocols, individuals’ statements or admissions, statements or significant conflicts in documentation, a pattern of claims development and/or submission deficiencies or longstanding claims development and/or submission problems or issues.

You should immediately stop and take account of what you have discovered. Serious civil or criminal penalties could apply, and it is imperative that you temporarily put your own investigation on hold and contact your attorney immediately for advice and assistance. If in doubt as to whether a mistake has occurred, the serious nature of these problems compels the conclusion that it is wise to err on the side of contacting your attorney.

In today’s environment there are significant incentives for patients, employees and other potential whistleblowers to review their activities with physicians, and to personally benefit where physicians have falsely billed for service rendered. As a result, even the most honest and scrupulous of practices can find themselves answering questions regarding their billing for services. Even if fraud or abuse has not occurred, physicians can incur tremendous costs defending themselves against these allegations. As a result, not only is it important that physicians bill accurately for their services, but it is more important than ever that physicians avoid these allegations entirely by appropriately responding when questions regarding their billing arise.