Defending Disparities and Changes in Approach

It is a bummer when you get hoisted on the petard of intellectual inconsistency. Whether it is different medical professionals with different approaches to a particular medical condition or a change in your compliance practices, investigators are fond of trying to use different practices against you.

Consider a real-world example. Hopefully, by now you’ve seen my explanation of why Medicare refunds need only look back 48 months, rather than six years, as long as there is no fraud or similar fault. Assume that your longstanding practice has been going back six years. Most of your refunds are quite small. Now you have a very large potential refund, and you decide that for THIS refund, you will only go back 48 months. How will that look?

I want to be very clear. It is absolutely permissible to change a practice when you learn that there is a better way to do something. If I didn’t think it was proper to shift your refund window from six years to 48 months, I wouldn’t bother reporting on this so much.

To be even clearer, I strongly encourage everyone to use 48-month lookback periods for Medicare, absent fraud or similar fault. In the words of the little Lucite desk ornament my mother gave me years ago, “foolish consistency is the hobgoblin of small minds.” That may sound like it contradicts the opening sentence of this article, but it doesn’t. Consistency is required. It just can make defending yourself much easier.

If I could choose, I would much rather defend a shift to the 48-month lookback period on a series of small refunds than on a multi-million dollar one. But let’s say that this is the article that causes you to change to the 48-month lookback, and it just so happens that your next refund is gigantic. Would I tell you that you need to do a six-year lookback? Absolutely not. I’m very comfortable with my legal analysis of the 48-month period. The law is the law; you don’t have to give up more money simply because you were being overly generous with refunds in the past. But you could also point to this segment as the reason for the change. And the sad reality is that when you’re dealing with an investigation, appearances often matter. While the law almost always wins out in the end, investigations can last longer when regulators question your motivations or sincerity.

Legally speaking, intellectual consistency isn’t required. It’s always permissible to follow the law. It is quite common for a variety of different options to all be acceptable. But as I’ve learned from defending organizations in dozens if not hundreds of investigations, it’s a lot simpler to defend consistency. And it’s easier to defend one change in practice than it is to defend multiple shifts. I’ve certainly won cases in which two professionals in the same clinic had wildly disparate takes on the medical necessity of the procedure. But I’ve also settled cases in that situation because everyone involved recognized the heightened risk of defending the variant practices.

I will close by noting this: first, it is easier to defend a change in a practice than it is to defend to disparate ongoing practices. Second, defending the two disparate ongoing practices is much, much easier if you have something in place before the government’s investigation notes that you are aware of, and tolerant of, the disparity. For example, if one physician orders a particular diagnostic test on every patient presenting with a particular condition, and a colleague orders it 10 percent of the time, you have to anticipate someone asserting that the first physician is too aggressive in ordering testing. There may be a solid rationale for the practice, but in an investigation, you will have an uphill climb. Carefully documenting why you are comfortable with the two professionals acting differently will be very valuable in any query. 

I don’t think you need to require uniformity. But it is wise to have people clearly articulate the basis for their different approaches to problem-solving before an outsider questions them.