Medicare Compliance & Reimbursement

Doctors must read the fine print before signing the new 855I.

If a physician practice's compliance plan isn't up to scratch, the doctor could be signing up for a Medicare witch hunt.

The new CMS 855I enrollment for physicians includes some new statements that could get providers into trouble down the line. In particular, on page 24, a physician must attest that:

· he or she understands that Medicare claims must comply with all laws and regulations, including (but not limited to) the anti-kickback law and the Stark self-referral law.

· neither the doctor nor any "managing employee" is currently sanctioned, suspended, disbarred or excluded from Medicare or other government health programs.

Both of these things are already required by law. But by signing an attestation to them, a physician could be piling on the legal jeopardy, warns consultant Jean Acevedo with Acevedo Consulting in Delray Beach, FL.

If a provider's compliance program doesn't already address these areas, the provider should make changes right away, says Acevedo.

Physicians should be checking the databases at both the HHS Office of Inspector General (OIG) and the General Services Administration to make sure Medicare hasn't excluded anyone in the office, Acevedo urges. Providers should look at not only the doctors, but also all employees. That certified nursing assistant who was so eager to come to work as the new medical assistant could be taking the pay cut for a reason, she warns.

Anyone excluded from Medicare shouldn't be working in a physician's office, cautions Diane Signoracci, a health care attorney with Bricker & Eckler in Columbus, OH. According to the OIG, excluded individuals can't be doing work that's in any way related to patient care. "Basically you can't hire them for any purpose," she tells providers.

Physicians have always had to comply with the Stark and anti-kickback laws, but they never had to attest to compliance before, says Acevedo. Medicare is "taking away a physician's ability to say, 'I didn't realize I had to pay attention to this.'" If a doctor attests to compliance but doesn't put in place an effective compliance program, then the penalties could be much worse.

Managers may be treating this as just another form for doctors to sign, Acevedo worries. "Nobody's really paying attention." The new form even includes a page outlining all the sanctions and penalties, including fines, that the doctor could face for non-compliance.

The new form doesn't change the laws, but it does put them more in the physician's face, says attorney Bruce Johnson with Faegre & Benson in Denver, CO.

Also, the feds may be repeating a strategy they've used in the past with institutional providers: "bootstrapping" the Stark and anti-kickback laws to the False Claims Act, says Johnson. Because the doctor signed a document that promised to abide by the first two laws, failure to comply may also violate the FCA, Johnson warns.

"The government's been getting some traction by trying to combine the three in different settings," says Johnson. With False Claims, the government can impose different sanctions than under the other laws. Also, qui tam "whistleblowers" can bring suits under the FCA.

Doctors don't usually face sanctions under the Stark law because the law focuses on entities that receive doctor Doctors don't usually face sanctions under the Stark law because the law focuses on entities that receive doctor referrals, such as hospitals, notes Signoracci. But if a physician's office provides services or equipment under the "in-office ancillary services exception," then the practice should be careful about any payments its doctors make to other referring doctors.