Pulmonology Coding Alert

In June, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a draft guidance to help physicians in solo or small group practices conduct effective voluntary compliance measures to prevent fraud and abuse in government health programs, including Medicare and Medicaid. Adopting a voluntary compliance program is a lot like practicing preventive medicine; it helps identify and treat small problems before they become big problems, Inspector General June Gibbs Brown said.

Strong enforcement and strong voluntary prevention are equally important in safeguarding the government health programs from fraud and abuse, Brown said. And the cornerstone of our prevention efforts is the development of voluntary compliance guidance that, in partnership with the private sector, will help the healthcare community develop effective compliance programs.

The report, Compliance Program Guidance for Individual and Small Group Physician Practices, has been published in draft form, and after all the comments have been reviewed and incorporated. The OIG plans to publish a final version of the guidance later this year in the Federal Register.

According to the OIG, a great majority of physicians are honest and committed to providing high-quality medical care to Medicare beneficiaries. Under the law, physicians are not subject to civil or criminal penalties for innocent errors or even for negligence. The OIG acknowledges that the governments primary enforcement tool, the civil False Claims Act, only covers offenses that are committed with actual knowledge of the falsity of the claim, reckless disregard or deliberate ignorance of the truth, or falsity of a claim. The distinction between erroneous claims and fraudulent claims is one the OIG takes into consideration when investigating cases.

The Elements of an Effective Program

An effective compliance program can help physicians identify both erroneous and fraudulent claims and help ensure that submitted claims are true and accurate.
Similar to other guidance issued by OIG for clinical laboratories, hospitals, home health agencies, third-party medical billing companies, durable medical equipment suppliers, hospices, Medicare Plus Choice plans and nursing facilities, the draft of the physician guidance is based on the following seven elements:

implementation of written policies and standards of conduct,
designation of a compliance officer or contact,
development of training and education programs,
creation of open lines of communication to keep practice employees updated about compliance activities,
performance of internal audits to monitor compliance,
enforcement of standards through well-publicized disciplinary directives, and
prompt corrective action to detected offenses.

The draft guidance identifies specific compliance risk areas for physicians, such as coding and billing; the provision of reasonable and necessary services; documentation; and improper inducements, kickbacks and self-referrals. Regarding coding, the draft states:

The practices expectations with respect to billing and coding, patient care, documentation, and payer relationships should be made clear to practice employees in the form of a code of conduct. This also can be stated succinctly in a practice mission statement. For example, employees should be told that the practice bills only for services that actually are rendered, codes accurately, documents medical necessity and appropriateness, and adheres to all payer contracts.

Know the Risk Areas

The report suggests that practices develop their own written compliance manual and also identify specific areas of risk. The identification of risk areas associated with coding and billing should be a major part of any physician practices compliance program, states the report.

According to Health and Human Services (HHS), the following risk areas associated with coding billing have been among the most frequent subjects of investigations and audits by the OIG:

billing for items or services not rendered or not provided as claimed,
submitting claims for equipment, medical supplies and services that are not reasonable and necessary,
double billing,
billing for non-covered services as if covered,
knowing misuse of provider identification numbers, resulting in improper billing,
billing for unbundled services,
failure to properly use coding modifiers, and
upcoding the level of service provided.

How Do Different-sized Practices Comply?

Recognizing that solo and small group physician practices may not have the resources to put a full-fledged compliance program in place, the OIG suggests how a practice can foster a culture that embraces compliance consistent with the size and resources available. For example, instead of operating a confidential hotline to receive complaints, the physician practice may implement a clear open door policy encouraging employees to discuss concerns about compliance issues.

Dedicating an office bulletin board to compliance information may make sure that everyone in the practice has access to up-to-date compliance information. In situations where a practice cannot afford to designate an employee to oversee compliance activities, the draft guidance suggests that those responsibilities be divided among practice staff who would then serve as compliance contacts. Another possibility is outsourcing all or part of the compliance functions to a consultant, billing company or other entity.

The draft guidance also provides direction to larger practices in developing compliance programs. It recommends that larger practices use the physician guidance and previously issued guidance, such as the Third-Party Medical Billing Company Compliance Program Guidance or the Clinical Laboratory Compliance Program Guidance, to create a compliance program.

The draft guidance includes several appendices outlining additional risk areas with which physicians should be familiar, as well as basic information about criminal, civil and administrative statutes related to federal healthcare programs. There is also information about the OIGs provider self-disclosure protocol, how to request an advisory opinion and Internet resources that may be useful to physician practices.

The draft physician guidance is available on the OIG Web site at http://www.hhs.gov/oig/new.html.