Training Should Not Exaggerate Regulatory Framework

Recent articles have described the regulatory complexity surrounding signatures and credentials in the world of healthcare. There’s a practical question associated with this: How do you train people to comply with a best practice without mischaracterizing the state of a law? 

This question is really important. Perhaps my favorite activity as a lawyer is defending clients from False Claims Act investigations. It is extremely rewarding to help a client avoid undue payment in situations for which other organizations are required to pay millions of dollars. Ironically, this task is often complicated by the organization’s compliance efforts. In nearly every false claims investigation in which I’ve been involved, there were internal documents in which employees mistakenly asserted that the company was engaged in illegal activity. 

For example, you might find materials urging people to sign documents, including an email or PowerPoint indicating that Medicare “requires” every note to be signed, or worse yet, that the absence of a signature constitutes fraud. Both the government and other entities love to seize on these seeming admissions of guilty. For this reason, it is imperative that training does not exaggerate the regulatory framework. 

When I teach classes about why “if it isn’t written, it wasn’t done” and why this is not an accurate characterization Medicare law, explaining that the evaluation and management guidelines are simply guidelines, not requirements, many compliance people exclaim “don’t tell our physicians that!” (If you still believe that physicians are required to follow the E&M guidelines, and every chart that fails to meet the guidelines is overpaid, please send me an email at for more information.)

While I understand that sentiment, it is wrong. Good compliance training explains the truth. While some people might think you need to use fear of criminal prosecution to change behavior, the fact of the matter is that an employer has another very effective tool: employment discipline. A hospital or clinic can reasonably say to its physicians, “we expect you to follow the E&M guidelines. If you don’t, we may fire you.” Such a policy would be entirely reasonable; you just want to make it clear to all involved that the policy is motivated by a desire to improve risk management, not to follow a legal requirement. Here is some possible language to include in reviews: 

“Our chart reviews are not audits designed to determine whether we have been overpaid or underpaid. First, they do not represent a statistically valid sample. Moreover, they only review the documentation, without attempting to determine the amount of work you actually performed. Therefore, these figures are far from scientific. However, since a Medicare review would base the initial overpayment determination solely on the documentation, these figures give you some idea of how your charts would fare in the first phase of a Medicare audit.”

While I greatly enjoy defending cases wherein the problem is merely a lack of documentation, I actively encourage clients to take steps to avoid needing my services. Requiring good documentation is a sound business practice. But mistakenly claiming that the absence of documentation is fraud is a bad business practice. Setting expectations is good; misstating consequences is not. It is reasonable to tell physicians, “we expect you to sign your notes,” but if you tell people that an unsigned note is not billable, or that it is fraudulent, you will create a cadre of potential whistleblowers who will seek to attack claims that are properly reimbursable. 

Medicare rules are complicated. Compliance training needs to embrace that complication, explaining it candidly but without exaggeration. Overstating the law to compel compliance or oversimplifying complicated problems may ultimately undermine your ability to defend yourself in an investigation. Since the main goal of a compliance program is to strengthen your ability to defend yourself during a government review, exaggeration is truly an enemy of the compliance program. 

Use the truth; it will set you free.


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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