Where the real exposure tends to sit
Most serious compliance problems in health care involve money moving between people who refer patients to one another, or claims submitted to government programs that did not match the care given. Federal fraud-and-abuse laws, including the Anti-Kickback Statute and the physician self-referral law often called Stark, reach arrangements that look ordinary in other industries, such as paying for referrals indirectly through rent or consulting fees. Many legitimate arrangements fit within exceptions or safe harbors, but those are technical and the details matter. Billing problems can raise False Claims Act issues when false claims are submitted with the knowledge the law requires, and whistleblowers can bring those cases. A compliance program is meant to surface these issues before someone outside the organization does.
What a working program looks like
Guidance from the HHS Office of Inspector General describes what an effective compliance program generally involves, and in New York the Office of the Medicaid Inspector General expects certain Medicaid providers to maintain one. In practice, regulators care less about whether a policy exists than about whether anyone follows it. They tend to ask who is responsible for compliance, how concerns are raised and handled, and what happened when a problem was found. If an audit identifies money that was paid in error, there is generally an obligation to report and return it within a set period. Holding onto a known overpayment while deciding what to do creates a separate problem of its own.
Starting the review
In an initial meeting we ask what prompted the call, since a planned sale of the practice is handled very differently from a subpoena or an employee's internal complaint. If an employee has raised a concern, how it is received matters, and retaliating against someone who reports can create separate liability. We usually look first at the arrangements involving referral sources and at billing patterns that stand out from peers. When a review may uncover problems, we discuss structuring it so that the analysis is done at counsel's direction. We then lay out what we would examine and in what order.
