Medicare Compliance & Reimbursement

1. Physician electronic medical record documentation. The HHS Office of Inspector General auditors will be looking for "'cloned note' cases where all of a physician's E/M notes look identical because of documentation software," cautions Mary Falbo, MBA, CPC, president of Millennium Healthcare Consulting Inc. in Lansdale, Pa. She notes that the 2011 OIG work plan specifically states that "Medicare contractors have noted an increased frequency of medical records withidentical documentation across services."

The plan also states that the OIG will "review multiple E&M services for the same providers and beneficiaries to identify electronic health records (EHR) documentation practices associated with potentially improper payments."

2. E/M coding during the global surgical period. Falbo cautions that the OIG work plan says the agency "will determine whether industry practices related to the number of E&M services provided during the global surgery period have changed since the global surgery fee concept was developed in 1992."

Key: "Under the global surgery fee concept," states the work plan, "physicians bill a single fee for all of their services that are usually associated with a surgical procedure and related E&M services provided during the global surgery period."

Preemptive strategy: "Practices will want to look not only at their billing of postoperative visits, but also pre-op H&Ps when the decision for surgery already has been made," Falbo counsels.

3. Unknowns posed by ACOs. "Everyone is racing to be part of an accountable care organization," observes attorney Lisa Ohrin, with Katten Muchin Rosenman LLP in Washington, D.C. But "we do not know if the HHS Secretary is going to exercise her authority to waive some of the legal requirements regarding physician/hospital relationships."

As a result, "providers are entering into arrangements that may not work out at the end of the day," Ohrin cautions. "For example, the arrangement may not qualify for a Stark exception now, but the parties are hoping that, because it's an ACO, government regulators will look the other way. Or they believe mistakenly that the rules don't apply to an ACO."

And while Ohrin agrees that "no-one wants to be the last one to the party, the early adopters risk that the Federal Trade Commission, Department of Justice, the HHS Office of Inspector General, or Centers for Medicare & Medicaid Services will all come down [on the issues] in a different way than they had expected or hoped."

Attorney Bruce Fried notes that, ultimately, compliance issues "will turn on the payment relationship that CMS enters into with ACOs." At this point, "there are no existing safe harbors or exceptions that are directly applicable to ACOs," says Fried, with SNR Denton in Washington, D.C. But he doesn't foresee the Stark law issues being "all that difficult," given that "an ACO is not going to be a provider itself."

What is known: The Affordable Care Act provides the HHS Secretary "significant discretion in trying different things" related to Medicare ACOs, says Fried. And "there is a fair amount of language around shared savings," he observes. "If an ACO meets the quality threshold and other requirements to be an ACO -- and saves money in the way in which it provides care -- then the ACO will share in the savings. Having said that, the ACA also authorizes the Secretary to use a partial capitation model or any other payment arrangement that may achieve the objective."

Stay tuned: Jan. 1, 2012 is the effective date for the Medicare ACO initiative, although that date may just be when CMS will begin accepting applications, Fried advises. "The regulations aren't expected out until mid- January 2011 or later."

4. A rocky road for doctors not in the know. Ohrin worries that physicians can find themselves "caught in traps when they don't code perfectly or don't know the Medicare rules." And if physicians don't learn the rules or look into problem areas involving their coding and billing, they "enter the world of fraud and abuse."

And in her view, generally speaking, physicians are probably "the least aware or on notice about some of the bigger compliance concerns that hospitals and health systems constantly worry about -- like returning overpayments to avoid False Claims liability."

Ohrin observes that "even the bigger institutions and systems are struggling with 'what does it mean to identify an overpayment [that has to be returned in 60 days]?' Is it at the beginning of an audit or the end, or when you find a single case?"

Resources: For more information on overpayments and the FCA, see "3 Reasons Providers Fear the False Claims Act," in Medicare Compliance & Reimbursement, Vol. 36, No. 20.

For tips on preventing and detecting overpayments that can lead to FCA woes, read "Get the 'Rest of the Story' About These 5 Compliance Beliefs," in the Vol. 36, No. 16 issue. Both articles are available in the Online Subscription System archives. If you haven't signed up for this free, value-added service, call 1-800-874-9180.