Nelson Mullins attorneys Mike Bittman and Bob Wade authored a new article published by the American Health Law Association (AHLA) discussing the complexities of healthcare compliance investigations, particularly those involving allegations of unnecessary procedures by surgeons. The article highlights methods for identifying such procedures, effective investigative techniques, and offers tips for prevention.

The health care industry has had decades of experience directing and conducting compliance investigations for hospitals and other organizations. The most complex investigations involve allegations that surgeons and other interventionalists perform medically unnecessary procedures or services. This article addresses why these investigations are complex, how to identify medically unnecessary procedures, effective investigative techniques, and tips on prevention.

Most compliance investigations involve billing issues where the goal is to determine if there is a coding, documentation, or another unintentional error, correct the error going forward, and satisfy any retrospective liability in a legal manner. For example, if it is determined that an overpayment exists, we assist providers in quantifying the amount and making a report and refund. A provider's failure to make a timely report and refund can lead to exposure ender the federal and state False Claims Acts.

To be clear, medical necessity reviews involve more than just a chart audit to ensure that the documentation in the medical record matches the claim. Medical necessity is a medical determination: was the procedure or service necessary based on the patient's medical condition? By way of example, a patient may have some plaque buildup in the artery, but is this degree of buildup to the point making a stent placement medically necessary? If a stent is placed and most cardiologists would believe there was not sufficient blockage to put a patient through the stent placement procedure, an overpayment may result since the placement could be deemed not to be medically necessary.

Overpayments involving billing issues pale in comparison to the legal risks posed by the performance of medically unnecessary procedures. When allegations of medically unnecessary procedures are confirmed, swift corrective action must be taken keeping patient safety in the forefront. Even with prompt corrective actions, the performance of medically unnecessary procedures rightfully attracts the ire of law enforcement and attention of personal injury lawyers. The resulting "Perfect Storm" can enmesh a hospital in decades of protracted litigation resulting in significant reputational harm.

Subscribers can read the full article here.