A few weeks ago, Dr. Ron (Ronald Hirsch, MD) wrote about a situation in which members of a utilization review (UR) staff were uncomfortable with a physician’s admission order. This raises several issues worth discussing.
First, what should you do when you are directed to perform some administrative task that makes you uncomfortable? And second, what liability are you likely to face if you follow the instruction?
I want to emphasize that I am discussing only billing and administrative issues, ignoring clinical concerns, for this segment. To be clear, the decision to admit a patient, rather than treat them as an outpatient, is administrative, not clinical.
Inpatients and outpatients are receiving exactly the same care; the only difference is their expected length of stay, and the way they are labelled and reimbursed.
So, how do you respond if you are uncomfortable with an admission order? I am a big believer in direct communication. If someone asks or instructs you to take an action with which you disagree, I think you should politely express your discomfort to the person and ask them to explain their thinking.
If you are not persuaded by their explanation and you believe that the request is illegal or unethical, I recommend you bring your concern to the compliance department. While most compliance departments permit anonymous reporting, I strongly recommend you do it openly. Doing so will greatly reduce your risk exposure.
When an individual employed by an organization has gone to compliance and the organization concludes that the practice is legal, the risk that you will face any personal liability is virtually zero.
First, consider civil liability, which consists of fines or exclusion from Medicare. Nearly every state will require an employer to indemnify you – that is, pay any fines or penalties, including attorney’s fees, you would otherwise incur, as long as the company instructed you to carry out a practice and you followed that instruction. Perhaps there’s a state somewhere that doesn’t have this indemnification protection, but I don’t know about it.
From a criminal perspective, if the government knows that you identified an issue and then relied on instruction from the corporate and legal professionals, indicating that the practice was permissible, the odds that a prosecutor would pursue charges against you are infinitesimally low. The government will want to use you to bring their case, not pursue you as a wrongdoer. That is particularly true if you are not personally profiting from the action in question.
So, returning to Ron’s example where there’s a question about admitting a patient as an inpatient, if the organization says, “We think the person qualifies as an inpatient, please do it,” I would literally eat my hat if you faced any civil or criminal consequence for complying with the instruction.
By contrast, if the organization asks you to take a particular legal action and you refuse, the company is well within its rights to terminate your employment. While you may have a claim of retaliation if you are fired for raising a compliance question in good faith, companies can terminate some for refusing to carry out a legal instruction.
If your organization’s legal department has determined that the request was legal, and you refuse to do it, you better hope that the legal department is wrong.
I want to reemphasize the importance of bringing your concern to the compliance or legal department. Merely raising the concern to a supervisor typically will provide the same robust protection that you will receive if you bring the concern to compliance, because your organization likely has a policy requiring you to report concerns.
If you report anonymously, it will be difficult to prove that you followed the policy of bringing your concern to compliance. Openly filing your report with compliance is good for you, your employer, and society.
