“Every doctor in this country should be concerned about this.” - Bryan Merrick, M.D.

The Centers for Medicare Services (CMS) is suspending Medicare billing privileges from Dr. Bryan Merrick, a physician at McKenzie Medical Center in rural Tennessee. According to an article in The Jackson Sun, Dr. Merrick, who has been practicing for over 30 years, is the only internist at the rural McKenzie Medical Center, and the only medical doctor in McKenzie who can read an electrocardiogram. Nonetheless, CMS is suspending his billing privileges for 3 years.

CMS reportedly audited 30,000 claims submitted by Dr. Merrick over a 20-month period, and found 30 billing entries on 10 patients that were not seen by Dr. Merrick. This would equate to errors on only 0.1% of the claims that were reviewed, and the total amount of the bills on those patients was $670.00.

Dr. Merrick maintains that the errors were clerical and told WBBJ, the local television station. "I didn't do anything personally wrong, professionally wrong or unethical." Dr. Merrick appealed CMS' decision, but his appeal was denied in August. He plans to take his case before an administrative law judge and should be considered innocent until he has exhausted his appeals.

While all the facts of Dr. Merrick’s case are not yet known, this case should serve as a cautionary tale for physicians. As Dr. Merrick told WBBJ, “Every doctor in this country should be concerned about this.”

Most physicians are focused on issues of medical necessity and patient treatment, and many leave compliance issues to their office staff. Without being able to verbalize any objective reason, most will also profess that they are satisfied with their existing Compliance Program. However, it is advisable to not confuse “satisfaction” with “complacency” when it comes to your Compliance Program.

Even if you are satisfied with your Compliance Program and are certain you are not intentionally doing anything wrong, you should assume that mistakes will be made. CMS expects, and the law requires, that you to have a Compliance Program that is effective in identifying these errors. Simply failing to ensure that you have an effective Compliance Program that identifies errors in billing may be considered sufficient knowledge to take action against you or your practice. Moreover, setting up an ineffective Compliance Program may be viewed as part of a scheme to defraud Medicare, which may carry harsh criminal and civil penalties.

For the sake of your practice and your own peace of mind, ask yourself, “on what am I basing my satisfaction with my Compliance Program?” If you, or your Compliance Officer cannot identify the factors that are utilized to measure the effectiveness, or if you have not had an outside audit of your Compliance Program within the past year, this would likely provide more evidence of complacency with compliance, than actual compliance itself. As Dr. Merrick’s case illustrates, even small errors can result in harsh penalties if your Compliance Program is not effective in identifying them before CMS.

Dennis G. Sadler received an LL.M. in Health Law, with a Concentration in Compliance, from Loyola University, Chicago School of Law and a J.D. from the University of Memphis, Cecil C. Humphreys School of Law. He is a Member of the law firm of Leitner, Williams, Dooley & Napolitan, where his practice focuses on health law and providing cost-effective guidance to physicians on regulatory compliance.

This article is provided for informational purposes only and is not intended to constitute legal advice. Consultation with an appropriate legal advisor is recommended. If you need specialized legal advice, please contact Dennis G. Sadler at (901) 527-0214 or dennis.sadler@leitnerfirm.com to discuss the services provided by Leitner, Williams, Dooley & Napolitan, PLLC.