March 21, 2012
Compliance Program Helps Group Practice Defend Discrimination Suit
Recently, a Pennsylvania-based physician group practice successfully defended an employment discrimination suit, thanks in part to its robust coding review process and auditing of its physicians' prescribing habits.
The physician plaintiff filed a discrimination suit under the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. The physician claimed he was terminated because of his age and physical disability, and argued his medication documentation and drug prescription practices were merely pretextual. Because the physician was a member of a protected class and suffered an adverse employment action, the physician successfully met his burden and established a discrimination claim.
However, the group practice prevailed, relying on its coding review process and coding training logs. This compliance data demonstrated that, despite repeated training, the physician never passed an audit. In fact, the group practice established that the plaintiff failed all of his coding audits and was the only physician in the group practice to do so. Additionally, the group practice analyzed the physician's prescribing habits to determine whether he was prescribing an abnormally large amount of controlled substances. Utilizing a computer tracking system, the group practice confirmed the physician was writing a high volume of controlled substance prescriptions relative to other physicians in the group. This disparity was consistent regardless of the timeline that was analyzed. The physician's prescribing habits were questionable at best and, thus, were also grounds for termination.
Ultimately, the court held that the physician failed to present evidence that rebutted the group practice's legitimate reasons for termination and, therefore, found in favor of the group practice. The group practice's coding review process and prescription audits played a critical role in the group practice's defense of this case.
This case illustrates why hospitals and group practices should adopt and implement a well-developed, thorough coding review process. It is essential that:
The process correctly identify providers whose billing habits are outliers compared to those of their peers;
Once reasonable parameters are established, the hospital or group practice address any errant coding practices with the provider(s);
If a provider does not show improvement after engaging in coding training sessions, then termination can be considered; and
Hospitals and physician group practices ensure their employment agreements contain strong termination language that allows them to terminate the relationship in the event that coding problems persist.
Having a well-structured coding review process allows hospitals and group practices to better manage a provider who fails to properly adhere to the established coding policies and procedures.
In addition to monitoring providers' coding practices, it may be beneficial to monitor their prescribing habits. From a compliance standpoint, the overprescribing of controlled substances may create serious compliance issues. If Medicare or Medicaid patients are receiving prescriptions that are deemed "medically unnecessary," then the hospital or physician group practice may be exposed to liability under the federal False Claims Act. Such a violation could result in civil monetary penalties and repayments. Therefore, it is essential for hospitals and physician group practices to ensure they are taking proper steps to monitor the coding and prescribing of their physicians.
If you have any questions about this matter, please contact James B. Hogan at 317.977.1439 or firstname.lastname@example.org or your regular Hall Render attorney.