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A Voice for Private Physicians Since 1943

Bad-faith Physician Peer Review May Violate False Claims Act and Other Laws

Physicians targeted for career destruction through hospital sham peer review have limited means of defense, but there are ways in which they can play offense, writes Lawrence R. Huntoon, M.D., Ph.D., in the summer issue of the Journal of American Physicians and Surgeons. Dr. Huntoon runs the Sham Peer Review Hotline for the Association of American Physicians and Surgeons (AAPS).

“Suing perpetrators, including attorneys representing hospitals, for fraud…places the perpetrators in a very vulnerable position since there is no immunity for fraud under the Health Care Quality Improvement Act (HCQIA) or any other law,” writes Dr. Huntoon. He cautions, however, that physicians need to consult competent legal counsel before taking such action.

The Americans with Disability Act may apply in cases of abuse of referrals for psychiatric and neuropsychological assessment.

Discrimination has been an underlying motive in many cases of sham peer review, Dr. Huntoon observes. Complaints can be filed with the Equal Employment Opportunity (EEOC) Commission.

To maximize revenue, hospitals often put pressure on coders to choose higher levels of service than actually provided—in violation of the Medicare False Claims Act. The hospital also puts pressure on its employed physicians (under threat of being fired) and on independent physicians (under imminent threat of sham peer review for being “disruptive” and interfering with operations of the hospital) to attest that all of the service codes chosen by the hospital coders are accurate. By coercing the physician to participate in a fraudulent scheme designed by the hospital, the hospital hopes to ensure the physician’s silence, Dr. Huntoon writes.

  If a physician files a Medicare fraud complaint, the likelihood of being targeted for a sham peer review is very high, Dr. Huntoon warns.

Failure to protect physicians’ due process rights may violate Medicare Conditions of Participation as well as The Joint Commission’s accreditation requirements.

“When a physician is attacked via sham peer review, an aggressive multifaceted ‘counterattack’ is needed…. Individual circumstances dictate which options for fighting back may be applicable,” Dr. Huntoon concludes.

The Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians in all specialties since 1943.

Read Full Article: https://jpands.org/vol29no2/huntoon.pdf

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