How to respond when a Medicare Advantage auditor requests a staff interview

Part B News recently covered an uptick in Medicare Advantage organizations' provider site audits -- and the possibility that auditors would try to interview providers' staff. Here with an expert perspective on how to handle that is former prosecutor Sam J. Louis of the Holland & Knight law firm in Houston.
 

Upon enrollment as a provider in a health care benefit plan, including a Medicare Advantage plan, a provider acknowledges and agrees to maintain records and documents to support services billed to the plan and agrees to comply with rules established by the plan to prevent fraud, waste and abuse. 

 

Compliance with program rules and regulations, however, does not extend to compulsory interviews, which concern potential violations of state and federal statutes.

 

If an auditor pays a visit to a provider's office, it is usually in connection with an investigation concerning fraud, waste or abuse.  Questions concerning routine coding, billing and compliance issues can be addressed through email communications. 

 

Although many providers believe they are obligated to submit to an interview, they are not required to do so. Answers provided during these interviews have resulted in the imposition of civil monetary penalties and may support a False Claims Act suit and criminal charges for health care fraud. 

 

For many years, I was a federal prosecutor with the Department of Justice and used statements obtained from providers during interviews with investigators to pursue criminal charges. As an attorney providing health care regulatory guidance to providers, I caution against speaking to auditors during the initial visit.

 

For one thing, spur-of-the-moment recollections of events are rarely accurate and often misconstrued as intentionally misleading and untruthful. Once an interview starts, a provider may feel compelled to agree with certain statements or assertions made by the auditor and unsure of their ability to terminate the interview. 

 

The best practice is to include within a provider's compliance plan's protocol for responding to interview requests. Health care providers should also ensure staff are adequately trained on this aspect of the compliance plan so that the practice is not in chaos when an auditor shows up seeking to conduct an interview. 

 

A provider and staff should respectfully inquire regarding the nature of questions to be posed by the auditor and obtain his/her contact information for follow up. The provider should carefully assess whether the area of inquiry poses any risks and consider consultation with a lawyer prior to deciding to submit to an interview. The provider should follow up with the auditor either directly or though counsel. 

 

If a provider agrees to an interview without counsel present, the provider should: