At the start of a new year, it is traditional to forecast what will happen in the next – but I’ve been around long enough to know that my tornado and northern lights forecasting are both better than my regulatory predictions. And since I only see storms and northern lights on a fraction of my outings, it would be unwise to rely on my regulatory forecasts.
So, rather than wasting your time with guesses, I will do something that sounds worse but is more useful: reporting what I did over the publication’s winter break. I had a meeting with a client that was both a ton of fun and absolutely fascinating. I was invited to join their compliance retreat, as my client tried to establish consistency within its compliance team with respect to approaching refunds to governmental and private insurers.
What do you do when you have a small problem that merits a refund, but the work perfectly quantifying the amount will cost more than the amount at issue? How far back should your refunds go? If you find a practice that is inconsistent with an LCD, do you refund?
If you are doing some sort of sample to determine a compliance problem, at what error rate do you decide to project to a larger universe, rather than simply refunding on the items you reviewed? Are you going to refund to private insurance companies when you find an issue with Medicare patients? Will you handle Medicare Advantage the same way you handle Medicare or the same way you handle private insurance companies?
The reason I’m rattling all these questions off, rather than answering them, is that we spent over an hour working through these and other scenarios, and I just have a few minutes to write.
I really enjoyed the exercise, and client reported that its team found it very useful. Every topic provided at least some discussion and dissent, meaning that absent the retreat, different people might have handled the same situation differently. While I strongly believe that in many cases, foolish consistency is the hobgoblin of a small mind when it comes to compliance issues, there are definitely benefits to taking an intellectually consistent approach within your organization.
One of the best examples of this is the problem created if you opt to refund in one situation because the amount at issue is small, and then you have an analytically similar issue with a large dollar amount. If you choose not to refund on the bigger amount, you’ve given powerful ammunition for someone to challenge the decision to keep the money.
Instead of making a forecast for the coming year, I’m going to offer some advice. Set up a retreat with your compliance team. Include your inside and outside counsel. Talk about the hardest refund issues you’ve confronted over the last few years, and how you’ve approached them.
Work hard to build a consensus, and make sure that consensus allows you to keep reimbursement for services you’ve provided, whenever that’s legally possible. This retreat was about as much fun as I can have at work, and I certainly hope I get invited to many more of them during 2024.
