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Argiropoulos, Herschman, Jampol Quoted in “Don’t Let a Health-Care Claim Dispute Become a Billing Fraud Case”

Bloomberg BNA Health Law Reporter

Anthony Argiropoulos, Gary Herschman, and Melissa Jampol, Members of the Firm in the Health Care & Life Sciences and Litigation practices, in the firm's Princeton, Newark, and New York offices, were quoted in Bloomberg BNA’s Health Care Daily Report, in “Don’t Let a Health-Care Claim Dispute Become a Billing Fraud Case,” by Matthew Loughran.

Following is an excerpt:

Health-care providers facing billing disputes with commercial health insurance companies need to take measures to ensure those disputes don’t morph into civil and criminal enforcement actions.

Health lawyers who represent providers in health-care billing disputes told Bloomberg Law they have been seeing more civil actions based on health insurer fraud unit investigations. They say the involvement of these units also can lead to cases being referred to law enforcement for criminal fraud prosecutions…

“There is no doubt that payers are bringing cases to state and local law enforcement, because they are finding what they believe to be fraud,” Melissa L. Jampol, a former federal prosecutor, who now defends health-care providers with Epstein Becker & Green in New York, told Bloomberg Law.

According to Jampol, a commercial insurer’s SIU can often have staff members with law enforcement experience. “If you look at who is in those SIUs, they are often staffed by people who formerly worked for the HHS Office of the Inspector General, or the Federal Bureau of Investigation, or in a state’s Medicaid fraud unit,” she said.

That information could lead to criminal charges under 18 U.S.C. § 1347—a federal health-care fraud statute that was added in 1996 as part of the Health Insurance Portability and Accountability Act (HIPAA)—or under the Anti-Kickback Statute or related federal criminal statutes involving conspiracy, wire fraud, and mail fraud. “When you see press releases from the Department of Justice announcing pleas in criminal cases, you would never know from their face that there was significant payer help on the front end,” Jampol said.

However, she added, most law enforcement officers aren’t going to just rubber-stamp fraud claims brought to them by commercial insurers. “I know the prosecutors I worked with in the Health Care Fraud Unit at the U.S. Attorney’s Office in the District of New Jersey wouldn’t just accept a ready-packaged case,” she said. “There is a commitment to uncovering actions that could amount to fraud. Often, in the regular course of those investigations one of the first things a prosecutor will do is to look at who has complained about potential fraud, including complaints to payers, and use those complaints, as well as any related SIU investigation, as a starting point,” she said …

Providers who are facing aggressive audits and involvement of SIUs are best advised to get ahead of the investigation by engaging directly with the investigators early on …

The audits can be made even more difficult by the volume of claims submitted by a provider on a regular basis, according to Anthony Argiropoulos, an attorney with Epstein Becker & Green in New York who handles civil litigation for health-care providers.

Argiropoulos, told Bloomberg Law that a hospital could process hundreds and hundreds of similar claims before they receive notice that an insurer has denied a claim. “Providers are caught in a difficult position where they have to keep track of denials and still process a high volume of claims that are all subject to possible human error,” he said.

Gary Herschman, also with Epstein Becker & Green, agreed, saying health-care providers should treat their interactions with commercial payers in the same way they would interactions with Medicare or Medicaid auditors. “You can’t ignore private payers,” he told Bloomberg Law. “When doing their self-auditing, providers have to look at their high-volume and high-dollar private payer claims too and make sure they are appropriately ordered, documented, and coded,” he said.

Herschman said if a private payer audit results in a potential criminal or civil fraud investigation, having a robust compliance program will help mitigate exposure. “It is always a good defense to fraud to show that you are acting in good faith,” he said. Herschman is a member of a Bloomberg Law advisory board.

These kind of audits act as a reminder to providers that they can’t just put their heads down and work, Werner said. “You have to concern yourself with the business of medicine because providing high-quality medical care isn’t enough to survive a payer audit,” he said.