Photo Credit: Maxxa Satori

The Department of Justice employs datamining to find physicians they suspect have committed acts of fraudulence or malpractice. Here’s what they look for.

Today’s healthcare industry is more efficient than it was decades ago, in large part due to digital solutions like EHRs and streamlined administrative tasks like scheduling and billing. However, US Department of Justice (DOJ) Trial Attorney Dan, Martin, JD, points out that digital solutions come with a price. They rely on time-consuming initial and perpetual training that can increase a physician’s workload. Martin also notes that digital solutions are dependent upon physicians and medical staff supplying reliable data, which leads to a potentially devastating issue—federal agencies and law-enforcement officials employing datamining as a means to sniff out physicians whom they suspect have committed acts of fraudulence or malpractice.

According to the Martin, the DOJ’s Fraud Section’s Health Care Fraud Unit dominates the number of trials taking place in the agency and employs “advanced data analytics and algorithmic methods” to nab healthcare industry fraud. Though well-intentioned, the DOJ’s mission to catch fraud has ballooned to the point where it now adversely affects a significant number of innocent physicians, hospitals, and healthcare systems. Upon supplying $482 billion of pandemic stimulus money into the healthcare system, the US government urged the DOJ to cast a wider net in its investigations, but this has led to wrongful accusations against well-intentioned physicians and healthcare employees whose human nature means that they are prone to occasional unforced errors. As a result, innocent parties wind up in unwarranted investigations. For instance, the DOJ employed datamining to try and gain evidence against physicians who, according to government-instituted benchmarks, have over-prescribed. However, Martin points out that many government-mandated benchmarks are flawed and end up void.

Health Care Fraud Unit acting principal assistant Chief Jacob Foster noted that datamining is inherently imperfect, given that data itself is not truth. Rather, one must perform due diligence to uncover the truth. Yet according to Foster, some government law enforcers appear to ignore this fact, opting to skip “B” and go directly from “A” to “C.” In order to lower the odds being the target of a datamining investigation, Martin suggested that physicians put themselves in the mindset of a prosecutor. One strategy he suggested is being aware of typical peer behaviors, so that physicians can identify when they are straying from norms. For example, physicians should be mindful of norms when prescribing medications and ordering treatments, especially when it comes to highly-flagged drugs like opioids. Furthermore, if a deviation from the norm yields a larger reimbursement request, physicians are at significant risk of being investigated. Martin notes that if a physician deems it necessary to stray from the norm, they must document justification for deviating, like citing a unique patient population or the physician’s own unique training in a relevant area.

Martin also suggested documenting patient outcomes and benefits, like supporting physician decisions by demonstrating a patient’s positive response to recommended treatment, making sure to document the response in the patient’s record. He added that documentation should be done in a timely manner to avoid any investigative accusation of an after-the-fact justification. Martin also recommended that physicians practice “defensive medicine,” perhaps opting to refer patients to a specialist when they have a certain chronic condition, for instance, that will likely result in the physician becoming an outlier amongst colleagues.

Datamining investigators hunt for outliers in billing patterns as well. As such, physicians who tend to bill for expensive treatments stick out from their colleagues. Martin suggested intentionally down-coding to avoid being investigated due to suspicion of ordering unnecessarily expensive tests and treatments. When it comes to billing and coding, physicians are ultimately on the hook for any errors committed by billing staff, even if these errors were unbeknownst to physicians. Therefore, it is a physician’s job to periodically convene with staff to review protocol. Martin notes that physicians should also proactively reach out to Medicare, Medicaid, and insurers when it comes to any billing discrepancies, making sure to document any discussions and outcomes, should it be needed for future defense.