Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.
Multiple health care businesses have scored wins this year in their fight to prevent CMS from recouping payments before having an opportunity for an Administrative Law Judge (ALJ) hearing. The similarity? They each sought a temporary injunction in federal court. Arguing that the alleged recoupments would cause the businesses to close, employees to lose their jobs and patients would be forced to change their providers, the businesses were granted temporary injunctions enjoining CMS from starting recoupment until the ALJ appeal stage had reached a conclusion. read more
The transition from paper medical records to electronic medical records has brought with it many conveniences and some unintended consequences. One example of an unintended consequence is cloning in the medical record. Cloning is copying and pasting previously recorded information from a prior patient note into a new patient note.
Providing quality medical care is only one part of the job. Appropriately documenting that care in order to be paid for your efforts is another. And while medical professionals are trained at length to provide care, hardly any are aware of the potential pitfalls associated with improper documentation.
A recent lawsuit seeking class action status that targeted Zone Program Integrity Contractor (ZPIC), AdvanceMed along with the U.S. Department of Health and Human Services (HHS) has been dismissed. The plaintiff, an Illinois home health agency (HHA), filed suit in federal court requesting a writ of mandamus (i.e. an order directing a party to perform a specific act) and damages based on claims of fraud and non-compliance with Medicare’s regulations. With many wanting an overhaul with regards to ZPIC authority, this case has been watched closely. What does this decision mean going forward? Consequently, this decision solidifies the formidable hurdle and requirement to exhaust all administrative remedies before challenging a ZPIC in court.
What occurred in this case is not uncommon. AdvanceMed conducted a review of a number of patient charts which led to a suspension of Medicare payment “based on reliable information that an overpayment exists or that the payments to be made may not be correct.” In response to the suspension notice, the HHA submitted a rebuttal statement with additional supporting documentation. The ZPIC later informed the HHA that the documentation had been reviewed and the Centers for Medicare & Medicaid Services (CMS) decided to continue the suspension. In subsequent discussions between the parties, an AdvanceMed representative surprising stated that it was not their policy to review rebuttals nor was it obligated to review the additional documentation. The representative further indicated that CMS concurred with their position. As a result, the HHA filed a lawsuit. read more
Medicare claims are processed by organizations (i.e. Medicare Administrative Contractors (“MACs”)) that contract with the Centers for Medicare & Medicaid Services (“CMS”) to act as liaisons between the Medicare program and providers and suppliers. As CMS continues to evolve its enforcement strategies to reduce fraud and abuse in the system, post payment reviews utilizing statistical sampling still remain as one of its key methods. These reviews are conducted not just by MACs but also by Zone Program Integrity Contractors (“ZPICs”). When a review is completed, providers and suppliers often face large extrapolated overpayment amounts based on the analysis of a small sample of claims. Therefore, providers and suppliers need to understand the process and most importantly, how to effectively navigate the system.
ZPICs are a part of Medicare’s integrity program and took the place of Program Safeguard Contractors (“PSCs”) that operated with the same goal in the past. ZPIC reviews initiate in various ways such as from whistleblower complaints, through ZPIC investigations (e.g. using data mining), and from referral from the Office of Inspector General (“OIG”). read more
Medicare beneficiaries are generally entitled to coverage for care received by a home health agency. However, home health providers can expose themselves to large overpayment demands from Zone Program Integrity Contractors (ZPIC audit) if the face-to-face (FTF) encounter requirements for home health certification are not strictly followed. On an increasing basis, FTF encounters have been the target of ZPIC review. Providers view this position as an effort to use home health agencies to police the industry. On the other hand, contractors see this as part of their mission to identify cases of suspected fraud and recoup inappropriate payments. Thus, it is imperative that home health providers fully understand the requirements in order to withstand contractor scrutiny. read more
Since the implementation of the ZPIC audit and RAC audit programs, healthcare providers and suppliers have experienced increased scrutiny in the pursuit of overpayments and fraud. Medicare’s most vital tool in its progressive search is the use of statistical sampling. In theory, statistical sampling offers a reliable and low cost approach to addressing large volumes of claims. However, this process gives the government a huge advantage as it places a heavy assumption on a large number of claims without actual review of the claims. Thus, it is important for providers and suppliers to understand the process and know how to challenge such studies in order to minimize potential repayment obligations and retain their revenue.
What is statistical sampling?
Statistical sampling draws a random sample from a universe of claims and extrapolates or projects the results of the sample to the entire universe of claims. In other words, the Medicare contractor will select a sample of claims to review from a look back period or examination period of typically two or three years. For this example, let’s say that the review finds a 40 percent error rate in the sample, meaning 40 percent were not found to meet Medicare requirements for payment. In this case, a contractor will apply the 40 percent finding to the entire two years’ worth of claims and deny these claims based on the sampling results. read more
Medicare payment suspension can place serious financial strain on a company’s operations. As a result, many companies face the risk of closing its doors when a suspension is initiated. Nevertheless, CMS is able to issue such suspensions by meeting a relatively low threshold. Additionally, suspension decisions are not appealable leaving affected providers and suppliers with little options. Therefore, it is important to understand the suspension process and how to counter if a notice of suspension is received.
CMS can suspend payments to providers and suppliers based on “reliable information” of any of the following: (1) fraud or misrepresentation; (2) when an overpayment exists but the amount has not yet been determined; (3) when reimbursement paid to a provider or supplier may be incorrect; or (4) when a provider or supplier fails to submit requested records needed to determine amounts due. Suspensions are initiated by a request to CMS’ Office of Program Integrity by either law enforcement or a Medicare administrative contractor. read more
If you are having issues with Medicare telehealth claim matters then you want to hire an experienced legal team that can guide you through the process, ensuring the best possible outcome. You also have the benefit of knowing that you are getting the best counsel for any legal matters and do not have to rely on amateur advisement like blogs and forums. These are some of the questions you can get answers to:
What experience do you have? When you hire an attorney to handle a legal matter for your business, you want them to be experienced and have a well established presence in this industry because there’s a chance they will be going up against insurance companies who have a lot of money and an experienced team of their own.
How can you help me with this situation? When you are dealing with this matter you want to make sure that everything is taken under consideration. For example, are you compliant with all the rules and regulations, new changes in policy or anything else that comes up? Do you have all the licensing you need to conduct business and so forth? An experienced team will make sure you have everything you need to move forward.
How can you help me in the future? One of the biggest advantages of hiring a law firm rather than an individual attorney is that we can assist you with several legal matters that come up in the future. Today you may need assistance with a contract for hiring a new doctor but a year from now it may be to purchase or sell a practice.
With the rise in services provided to patients via telehealth entities, it is important that both practitioners and patients understand what criteria must be met in order to provide and bill telehealth on behalf of Medicare patients. Here are a few of the basics.
First, “telehealth service” for Medicare purposes means “professional consultations, office visits, and office psychiatry services, and any additional service specified by the Secretary. To be eligible for payment, telehealth services must be rendered to an eligible individual, that is, an individual enrolled in Medicare, who receives telehealth services at an originating site from a physician or practitioner at a distant site via telehealth communications system. An eligible individual does not need to be presented by a physician or practitioner at the originating site to a physician or practitioner at a distant site, unless it is medically necessary. Determination of whether a presenting physician or practitioner is necessary at the originating site is made by the physician or practitioner at the distant site.
The Centers for Medicare & Medicaid Services (CMS) relies on its Medicare Administrative Contractors (MACs) to serve as guardians of the Medicare trust fund through the MACs taking steps to prevent improper payments. Despite that reliance, in its most recent report to the US Senate Finance Committee, the Government Accountability Organization (GAO) reports that improper payments totaling $41.1 billion (no, that is NOT a typo, that is a “b”) occurred during 2016 in the Medicare fee-for-service program . That figure represents an overall 11% percent improper payment rate.
How many of us would feel good about being “wrong” in our core job function 11% of the time? Not very many of us, I suspect.
The GAO report goes on to quote the MACs as generally having ongoing concerns about the following types of claims as those which pose the greatest financial risk to the Medicare trust fund.
Short inpatient acute care stays and claims for both skilled nursing and inpatient rehabilitation
Evaluation and management (including office visits, hospital visits, emergency room visits, and home visits for assisted living and nursing homes) and ambulance services
Home health therapy services and home health or hospice stays that were longer than average
So, what does CMS plan to do to hold its MACs more accountable and to further the objective of reducing improper payments? On August 14th CMS announced an expansion of an ongoing pilot program “Targeted Probe and Educate” Medical Reviews (TPE).
7 Things to Know
The basics of what the provider and supplier communities need to know about the TPE program follows.
The silver lining here is that providers and suppliers with minimal aggregated billing pattern deviations from their peer group coupled with good audit track records may now experience fewer MAC medical review audit requests.
TPE will be concentrated on providers and suppliers with “the highest claim error rates or billing practices that vary significantly from their peers”.
In the first round of reviews, MACs will review a 20-40 record probe sample of claims for each lucky provider or supplier selected to participate in TPE.
Providers and suppliers who perform well during the first TPE audit, or who demonstrate significant improvement during the second or third audit may be removed from the TPE audit cycle for a period of up to 12 months.
Each provider and supplier with moderate and high error rates during round one TPE audits will receive provider-specific education, be given approximately 45 days to improve its rate of compliance, and will advance to a bonus round two TPE audit.
Providers and suppliers who fail to improve during the round two TPE audit will again receive provider-specific education, be given another 45 days to improve processes and controls to improve rates of compliance, and will advance to the third round of TPE audits.
Providers and suppliers who perform poorly during the final TPE audit round could be placed on 100% prepayment review, be subject to the dreaded “extrapolation”, and/or be referred to the appropriate Recovery Auditor, Zone Program Integrity Contractor or a Unified Program Integrity Contractor. It goes without saying that none of these are desirable outcomes.
7 Steps to Readiness
Many providers and suppliers are outliers relative to some component of their billing pattern. Use all the resources at your disposal to “know your numbers” and where your areas of exposure or risk most likely exist.
Closely review results and findings from any recent internal audits or reviews conducted pursuant to your compliance program.
If you have experienced recent external medical review audits, evaluate those results. If there were denied claims, identify the issue or issues leading to the denials. Then, identify the root causes of errors. Finally, and most importantly, resolve the problems which lead to denied claims.
If you provide health care services in any of the areas mentioned above which are deemed highest risk by the MACs, examine on your billing patterns in those service lines.
Pay attention to what your MAC says about TPE and areas of emphasis for audit. If you provide those health care services, examine your billing in those areas.
Drill down into any area where your billing pattern materially deviates from your peer group and make sure you understand the basis for the deviation.
If there is no obvious business rationale or justification for a considerable deviation from the “norm” do a deeper dive of your charge capture and billing practices to determine whether any process or practice needs further evaluation and/or adjustment.
These suggestions should position you for a successful outcome if / when you are selected to participate in the TPE audit program.
The US Department of Health and Human Services, Office of Inspector General (OIG) reports that as part of its 2017 Work Plan it will be reviewing Medicare Part B payments for telehealth services. These services support rural access to care and Medicare pays telehealth services provided through live, interactive videoconferencing between a Medicare beneficiary located at an origination site and a healthcare provider located at a distant site.
The OIG is reviewing Medicare claims that have been paid for telehealth services that are not eligible for payment because the beneficiary was not at an originating site when the consultation occurred. A beneficiary’s home or office is not an originating site, an eligible originating site must be a practitioner’s office or a specified medical facility. read more