Medicare Compliance & Reimbursement

Tip: Strong notes back up claims and appeals.

As Medicare fraud and abuse increase nationwide, healthcare auditors as well as federal law enforcement agencies remain vigilant in their pursuit of wrongdoers. Thorough documentation can keep you out of hot water and ensure your claims and practices are on the right side of the law.

To avoid the HHS Office of Inspector General's (OIG) watchful eye, consider the insight below on recent cases prosecuted by the feds that resulted in prison time and stiff fines.

1. Medically Unnecessary

In a recent settlement, a Detroit-area physician was sentenced to 24 months in prison for "his role in a $1.7 million healthcare fraud scheme that involved billing Medicare for physician home visits that were medically unnecessary and/or were billed under unwarranted treatment codes that resulted in inappropriately high payments," according to a Department of Justice (DOJ) press release.

Specifically, the provider was part of a home-visiting physician company that saw homebound Medicare patients in their homes. The Medicare Fraud Strike Force discovered that these patient visits did not qualify for payment because "the patients either were not sick or were not homebound," the DOJ indicated.

Reminder: Physicians are responsible for the medical decisions they make, so erroneously (and willfully) administering or prescribing care for patients who don't have a medically necessary reason for the service is problematic. Not only will it hurt insurers by overcharging them, but it isn't a sound medical practice, as patients shouldn't be treated for conditions they don't have.

Tip: Remember, Medicare defines medically necessary services as "healthcare services or supplies needed to prevent, diagnose, or treat an illness, injury, condition, disease, or its symptoms and that meet accepted standards of medicine." And the best way to demonstrate medical necessity is with thorough and accurate documentation. "If the medical record does not support the service(s) billed, CMS can certainly recoup the funds paid to the provider," explains attorney John E. Morrone, a partner at Frier Levitt Attorneys at Law in New York.

2. Upcoding

A New York-based physician was sentenced to 13 years in prison plus he must pay back the $7.2 million he received from CMS for services he didn't perform or that he upcoded for higher pay (see story p.25). Thoughthis case highlights extreme circumstances and outlier tendencies, upcoding remains a big part of Medicare fraud, particularly for evaluation and management (E/M) services - the bread and butter of most providers' reimbursement.

Example: If you insist that all of your patients are complex cases and bill the highest-level E/M service, CPT^® code 99215 (Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components...), your coding practices are sure to triggeryour MAC's curiosity. And that will likely lead to denials.

Check the documentation before you submit your claims and make sure you're right. The code that you select is typically driven by the medical necessity of the visit, but the required elements of the visit still need to be documented, or you can't bill. "Ninety percent of the upcoding I see in my E/M auditing experience is due to insufficient documentation, not due to clinicians 'padding their invoices' for better reimbursement," says Jan Blanchard, CPC, CPMA, pediatric solutions consultant at Vermont-based PCC.

Tip: EHRs can automatically bump your codes to a higher level, so keep on top of that common problem, suggests Chip Hart, director of PCC's Pediatric Solutions Consulting Group in Vermont and author of the blog "Confessions of a Pediatric Practice Consultant." Hart cautions, "Coders should not trust a computer to make E/M decisions or use an EHR to auto-populate big portions of the chart note. This can create inflated and inaccurate notes that lead to artificially complex-looking records."

3. Kickback and Stark Violations

With more than a million in charges, two Northern California-based urologists entered an agreement to refund $1.085 million of their Medicare intake to the federal government to "resolve allegations that they submitted and caused the submission of false claims to Medicare for image guided radiation therapy (IGRT) that was referred and billed in violation of the physician self-referral law (commonly known as the 'Stark Law') and the Anti-Kickback Statute," noted the DOJ in a release on the case.

According to the DOJ, the two fraudsters knowingly caused eight other urologists to violate the Anti-Kickback Statute (AKS), as well as enter into lease agreements where they could bill for referrals for the IGRT, the DOJ suggested. Moreover, the two physicians "violated the Stark Law by improperly billing Medicare for their own IGRT referrals" at their own facility. The two physicians had separate companies and entities, but their financial arrangements didn't comply with Stark Law exceptions, the DOJ said.

Definition: What's the Stark Statute? The Stark law forbids physicians from referring Medicare patients for designated health services (DHS) to an entity with which the physician or an immediate family member has a financial relationship and prohibits the entity from submitting claims for those referred services.

Tip: When you make a referral for a DHS, you should determine if the referral complies with your practice's compliance plan as it relates to the Stark Law. As a clinician, if any immediate family member does have a financial relationship with you as the entity, who is providing DHS, then, as part of your plan, you should check if the arrangement fits into one of the Stark Law exceptions. If it fits, then you can refer Medicare patients to that entity for DHS with confidence; otherwise, you are risking violation of the Stark Law. If you are not sure if your referral is within the parameters of the Stark Law, seek legal help to avoid trouble later.

Take Note of the OIG's Central Theme

Since the first of the year, the OIG has levied substantial prison time, medical license revocation, and punitive fines in seven high-profile cases. What element linked these settlements and judgements? The illegal prescription, distribution, and dispensing of opioids.

"Prescribing controlled substances - such as Hydrocodone - outside the scope of professional practice and without a legitimate medical purpose is illegal," warned Lamont Pugh III, Special Agent in Charge, HHS Office of Inspector General, Chicago Region in a recent DOJ release. "Physicians who engage in this type of behavior put patient health and safety at risk and exacerbate the opioid crisis. The OIG will continue to work with our law enforcement partners to ensure that those who commit these criminal acts are held accountable."

Since the opioid epidemic was determined a Public Health Emergency (PHE) in October 2017, and recently renewed in January, the combined resources of state and federal law enforcement in coordination with HHS have developed several resources for Medicare providers on the front line combating addiction. From HIPAA clarifications to new CMS prescribing regulations, the feds are spotlighting the problem.

Bonus Tip: HHS compiled and continues to add updates to a new resource for clinicians specifically dealing with patients impacted by the opioid epidemic. From CMS guidelines to Drug Enforcement Administration (DEA) mandates to steps on how to lawfully prescribe opioids, the online tools aim to assist Medicare providers confused on the changing rules.

You can find the HHS opioid resource at: www.hhs.gov/opioids/.