The Therapists Guide to Reporting Ethical & Legal Concerns Information compiled by Gray Matter Therapy September 2014
Introduction Dear therapist, This guide is about reporting ethical and legal concerns, but I hope it isn t the first thing you do to address these concerns. I recommend you follow the chain of command. Talk to your supervisor about your concerns first (and document it). If you feel uncomfortable talking to your supervisor, talk to their supervisor. Document all of your conversations with supervisors regarding these concerns. Documenting conversations will be helpful information if/when you choose to report. See the following communication tips and resources to help you tackle difficult conversations in the workplace: Crucial Conversations: Tools for Talking When Stakes are High How to Complain to Your Boss Tips for Communicating Effectively with Your Boss However, there are situations when following the chain of command isn t resolving concerns. That is when it is time to report. I know reporting can be a flustering experience. Many therapists have emailed me frustrated, because they feel conversations with their supervisors aren t going anywhere, but they are afraid to report. Many people are afraid of retaliation from supervisors. This is a common fear, which is why many of the methods of reporting include an anonymous option. Remember that your company s employee assistance program (EAP) is also a confidential resource. EAP programs can be very helpful in helping you manage workplace stress and frustration. This guide is a collection of resources I wish were consolidated when I was in difficult situations at work and deciding if and how to report. It includes information about reporting to your company s compliance hotline, contacting the Medicare fraud hotline, and sharing concerns with the department of labor (federal and state). This guide also contains links to resources available via the ASHA, APTA, and AOTA. This guide isn t totally comprehensive. I am not a lawyer or an expert on Medicare. This guide is not meant to be legal advice in any way, shape, or form. Talking to a lawyer is the best way to obtain legal advice. Thank you for engaging in activities to improve patient care! Rachel Wynn, MS CCC-SLP Gray Matter Therapy September 16, 14 2
Therapy Company Compliance Hotlines What is a compliance hotline? A compliance and ethics hotline is a third party (unrelated) company that speaks to employees about compliance or ethics concerns. If you call a compliance hotline you have the option to leave anonymous comments. The goal of a compliance hotline is to provide a safe way for employees to share concerns without fear of retaliation. Compliance hotlines may be automated, hosted by a live operator, or web-based. Find your company s compliance hotline Do a Google search with some of the following terms to find the hotline. Company name + compliance hotline Company name + ethics hotline Company name + code of conduct Company name + employee handbook When you search for the code of conduct or employee handbook, the phone number will not show in the Google search results. Look through the code of conduct and employee handbook for the phone number (or email address). The code of conduct and employee handbook are also great resources to review prior to contacting the compliance hotline. They may be good sources to support your concerns. In my review of these handbooks, many companies have ethical and legal procedures listed; however, pressure for maximizing reimbursement may result in an unwritten protocol being followed. What concerns should you share with the compliance or ethics hotline? Patient or employee safety concerns Security breaches or risks o HIPAA compliance o Personnel file privacy Third party payer fraud Workplace theft Patient rights are ignored o Therapy continues after a patient has refused services o Patients are not adequately informed of services or treatment Lack of clinical autonomy o Therapists are not allowed to determine therapy appropriate for patients. o Therapists are not allowed to pick up or discharge patients according to their clinical judgment. Wasteful spending (too much therapy) o Intensity too high (e.g. RUG level too high) o Frequency to high 3
o Duration (e.g. providing therapy when therapy is not longer beneficial) o Also consider anonymously reporting to the Medicare Fraud hotline. Conflicts of interest Poor therapy o Not enough therapy (e.g. ending therapy when patient would continue to benefit) o Shortening sessions to maximize reimbursement (e.g. session codes asked be billed at 15 minutes only) o Point of Service Documentation when it is not appropriate/therapeutic Working off the clock encouraged (or not discouraged if it is known to be occurring) o Also look into reporting to your states Wage and Hour Board. What happens after you submit a complaint? Processes vary, but in communicating with several compliance hotline companies, the following two basic processes were identified. First, it starts with an employee making a phone call, using a web form, or other form of communication provided by company hired by an employee. You will be given a case or call number, so you can call back and find out the status of your complaint. They will not call you to report, as your call is anonymous. Process #1: The compliance company takes your complaint and it moves through the channels of their company before getting transferred (anonymously) to your employer. Each employer has their own internal process in which they handle compliance concerns. You can call to follow-up on your concern via the case number. Process #2: The compliance company takes your concern and asks you to call back in a specified period of time. When you call back they will have a response from your employer regarding the complaint. The response may be Thank you, we re investigating this or we need this additional information. Again, each employer has their own internal processes for handling complaints. 4
Medicare Fraud Hotline Fraud versus abuse Medicare.gov defines fraud and abuse as follows: Medicare fraud happens when Medicare is billed for services or supplies you never got. Abuse happens when doctors or suppliers don t follow good medical practices, which leads to unnecessary costs to Medicare, improper payment, or services that aren t medically necessary. How to report fraud and abuse Both Medicare fraud and abuse should be reported to the Office of the Inspector General or Centers for Medicare & Medicaid Services. HHS Office of Inspector General Call: 800-447-8477 TTY: 800-377-4950 Online: Report Fraud Online Mail: HHS Tips Hotline P.O. Box 23489 Washington, DC 20026-3489 Centers for Medicare & Medicaid Services Call: 800-633-4227 TTY: 877-486-2048 Mail: Medicare Beneficiary Contact Center P.O. Box 39 Lawrence, KS 66044 What to report Concerns that should be reported include: Billing services that were not provided, including billing for more services than were provided Upcoding or selecting CPT codes based on reimbursement rather than services rendered Services provided are not medically necessary, including providing more treatment than necessary Wasteful spending The Office of the Inspector General has several videos for provider compliance training online. These videos have a target audience of physicians; however, you may find some helpful information as well. See also this resource created by the Medicare Learning Network about Medicare Fraud and Abuse. See also, False Claims Act. 5
US Department of Labor & State Offices What is the US Department of Labor? The United States Department of Labor is a department within the US federal government. They are responsible for various labor laws including those related to occupational safety, wage and hour standards, and collection of some economic statistics. There are federal laws that pertain to labor; however, each state has their own laws and additional requirements. Working off the clock There are several ways that employees may find themselves working off the clock. One common way for healthcare professions (gathered via informal reports to Gray Matter Therapy) is making the decision to work off the clock in order to fit all work into the employee s day and avoid overtime (as required by company) or to improve the employee s productivity (percentage of billable time compared to all hours worked). In both of these situations, employees should be having conversations with their supervisors regarding their workload and ability to complete that work in a paid workday. Another way employees may be working off the clock and not realize it is by working through breaks. It is not uncommon for therapists to either see a patient at lunch or attend a meeting during the lunch hour. If an employee isn t clocking out for lunch, the employee should be getting paid throughout the entire time they are clocked in, right? Employees should be getting paid for all hours worked; however, it is not an uncommon practice for companies to add a lunch break (aka unpaid time) to an employee s day if they work a specific number of hours. This is to support meeting laws about minimum length of lunch breaks. (Learn more about your state s minimum length of meal period.) Employees should check with their employer to find out what the company policies and procedures are for lunch breaks. If a lunch break is automatically added with an employee works a full day, there should be a manual process to indicate an employee worked without a lunch break and therefore should get paid for the whole day. Consider this quote from the FLSA Hours Worked Advisor: An employer cannot sit back and accept the benefits of an employee s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. No matter how an employee works off the clock, it is not okay. You should be paid for all hours that you work. The US Department of Labor recently blogged about working off the clock. In addition meal break requirements, many states have paid rest period requirements. Learn more about your state s minimum paid rest periods. 6
How to file a complaint Depending on the specific law violation, employees can contact their state of federal department of labor. Find your state s labor office. The process for each state will vary. Learn more about the US Department of Labor s Wage and Hour Division and the process for filing complaints. Additional United States Department of Labor resources Summary of the Major Laws of the Department of Labor Occupational Safety and Health Administration (OSHA) Wage garnishment Office of Worker s Compensation Programs for work-related injury or occupational disease Family and Medical Leave Act Whistleblower and Non-Retaliation Protections support you when you speak up about concerns. US Department of Labor s Disability Resources US Department of Labor s Equal Employment Opportunity Wages 7
Therapy Association Resources Our professional associations are also developing resources to support therapists in providing ethical care. While some resources are available to association members online, other resources are available to the public. Look at resources across the disciplines. American Speech-Language Hearing Association ASHA Code of Ethics Issues in Ethics: Representation of Services for Insurance Reimbursement, Funding, or Private Payment State Codes of Ethics Medicare Guidance for SLP Services in Skilled Nursing Facilities You can file an ethics complaint against an ASHA member by following these instructions. American Physical Therapy Association Preventing Fraud, Abuse, and Waste: A Primer for Physical Therapists Code of Ethics for the Physical Therapist Standards of Ethical Conduct for the Physical Therapy Assistant Center for Integrity in Practice You can file an ethics complaint against an APTA member PT or PTA through your state s APTA chapter or the state licensing board. American Occupational Therapy Association Occupational Therapy Code of Ethics and Ethics Standards OT/OTA Partnerships: Achieving High Ethical Standards in a Challenging Healthcare Environment AOTA Ethics Guide AOTA Ethics Commission You can file an ethics complaint against an AOTA member via the online form. 8