All you hospital executives who plan on going to Washington for the American Hospital Association meeting this month should use the opportunity to turn yourselves in to the U.S. Justice Department.
Let's face it, you're all guilty of billing errors (excuse me, disputes in AHA parlance), at least according to Justice Department standards. Maybe you transposed a number or billed someone twice. Maybe you submitted bills for tests that, in hindsight, weren't really necessary.
I, and, more importantly, the Justice Department, don't want to hear about good-faith efforts and harmless mistakes. Stop your whining about the Medicare fiscal intermediaries that gave you bad advice. And just so you know, laboratory tests aren't about being careful, they're about necessity.
Admit it: You're a crook.
If you turn yourself in now, the Justice Department will only assess you triple damages for every mistake. Lucky for you, it won't add penalties, and it won't look into those parking tickets you have in your glove compartment or the extra television you hooked up to receive the cable signal.
Now that is a deal you can refuse.
OK, I made up the part about the parking tickets and the cable. The fact is, the actual deal being offered is worse.
The Justice Department sent letters late last year to nearly 5,000 hospitals saying it had unspecified proof indicating each hospital has claims that might have been "unbundled."
According to the letter, "If (your hospital name) wishes to resolve this matter by entering into the appropriate settlement agreement, this letter will provide that opportunity." The letter goes on to offer a deal similar to the one above . . . only instead of abstaining from a parking-ticket review, the Justice Department promises "not to pursue billings related to urinalysis." And you've got two weeks to decide.
So far, the department seems intent on treating every error as fraud, no matter how big or how little. It is using the False Claims Act, a law implemented during the Civil War to stop opportunists from selling the same horse twice to the army, to threaten huge fines. For every error, a hospital can be liable for penalties of $5,000 to $10,000 and triple damages.
Don't get me wrong. I'm not saying every hospital is squeaky clean. In fact, that's one of the problems. There is clearly enough of a problem out there to make everyone leery of coming to hospitals' defense. The Justice Department knows there are a lot of bad bills, and it is rightfully trying to clean up a serious problem.
The questionable part is its methods.
The comparison is overused, but this is truly worthy of the late Wisconsin Sen. Joseph McCarthy. Reading the Justice Department letter, I was waiting to see, "These facts, if true . . ." or "We have in our possession a list . . . ."
For years, hospitals resolved small cases of incorrect billing by settling up with their Medicare fiscal intermediary by year-end. Probably, there was too much chumminess in that system. Probably, there is more and more aggressive upcoding and unbundling going on.
But sending out threatening letters on what appears to be a fishing expedition is not the answer. No one likes to be bullied. Not by the Internal Revenue Service, which has come under scrutiny for its heavy-handed tactics. And not by the Justice Department.
To its credit, the AHA is throwing some punches for the hospital industry. Over the past several months it has slowly turned up its rhetoric in its fight with the Justice Department.
Even AHA President Richard Davidson, who rarely criticizes anyone or anything in public, has had sharp words with the Justice Department.
The AHA is working to get a bill introduced in Congress to make it harder for the Justice Department to use the False Claims Act. There is some evidence the AHA is making headway, but the bill is going to be a very tough sell.
Can't you just see the story on the nightly news?
"The congressman said he was introducing the measure to keep the Justice Department from conducting a witch hunt against the nation's hospitals. For reaction, we go to Mr. Dogooder of the Taxpayers' Rights League."
Mr. Dogooder explains the bill is a way to make it easier for hospitals to plunder Medicare: "This bill, bought and paid for by special interests, is business as usual in Washington."
Then comes the interview with the congressman's opponent in the upcoming election. "My opponent is soft on crime and soft on fraud and abuse."
Soft on crime. For a politician, that's worse than being called a communist.
The AHA also must give the hospital industry some tough love. Sure, the Justice Department is out of line, but remember, its investigations almost always turn up some problems. The AHA doesn't like to tell its members what they don't want to hear, but hospitals must clean up their act before they can hold the high ground in this fight.
To the committee that is meeting to produce solvency standards for provider-sponsored organizations and to a similar panel working on exceptions to federal anti-kickback laws. The meetings are mind-numbing. The sides are well entrenched. Yet everyone is playing well together (so far), and there is progress being made.
To the Republicans who continue to hound Ira Magaziner about the White House healthcare task force. Ira screwed up. The plan stunk. White House lawyers shaded the truth. But Teapot Dome this is not. The system worked, and it is time to give it a rest and be good winners.