To the Editor:

I was disheartened after reading “Seven Steps to Medicare Compliance” [January 2001, page 41]. It now seems that seeing Medicare patients means going to jail – or at least suffering large fines.

While the idea of self-audits makes sense, in practical terms it's a no-win proposition. If you don't do self-audits, the Office of Inspector General (OIG) will say you should. If you do them and use them as an internal control (i.e., you don't report cases of underbilling or underdocumenting), the OIG will still say you should report the errors – at least those in Medicare's favor. If you report errors, you are inviting a Medicare audit.

Since the people enforcing the rules are also the ones making them up, once they decide you're guilty they'll find the proof they need. That's what an audit is, isn't it? A study in the Journal of the American Board of Family Practice [2000;13(2): 144–146] showed that even certified coding specialists with at least 12 years of experience who work as trainers can't agree on the level of service or the levels of history, physical examination and medical decision making represented in a progress note. Auditors have incredible flexibility – and we have no leeway.

It is clear from the article that doing your own audits offers no protection. I hardly think the OIG considering this a “mitigating factor in [its] recommendations to the prosecuting agencies” is any consolation. Rather, it seems to serve as an invitation to the OIG to come in for the feast.

Author's response:

The recent trend toward “criminalization” of Medicare infractions certainly raises suspicion that government is doing little more than asking physicians to help prosecute compliance violations. In today's enforcement environment, I don't believe physicians fare better by ignoring compliance issues or failing to implement a compliance program. It's a physician's duty to ensure that claims submitted to government health care programs are true and accurate. Criminal punishment, civil penalties or administrative sanctions for violations can be harsh. And, if violations do occur, the compliance program is an effective bargaining tool. Indeed, it measures a physician's good-faith effort to deter, detect and prevent criminal behavior.

The incentive for self-policing is more than the potential for reduced culpability. A well-designed compliance program not only helps physicians submit proper claims and prevent fraud, it also results in a better run practice and higher quality care for patients.