Each year the Office of the Inspector General (OIG) for the US Department of Health and Human Services (HHS) publishes its work plan (Work Plan), affording healthcare providers that bill Medicare and Medicaid a looking glass into future OIG activity. One of the primary roles of the OIG is to protect the integrity of HHS programs, including Medicare and Medicaid, and to detect and prevent fraud, waste, and abuse. The OIG collaborates with HHS and the Department of Justice (DOJ) to detect fraud and affect successful prosecutions, negotiated settlements, and recovery of funds.
The Work Plan for 2014 provides guidance to provider-types ranging from hospitals-to-physicians-to-pharmacies, with topics ranging from inappropriate payments for evaluation and management visits to compliance with the HITECH Breach Notification Rule. As the 2014 Work Plan addresses over 200 individual topics, it is impractical to address all of them in this article. Therefore, we have selected several topics, representative of the guidance provided in the Work Plan and which provide some insight into the OIG’s priorities. These topics were also selected because they are the most applicable to physician providers.
Evaluation and Management Services—Inappropriate Payments
The OIG will determine the extent to which selected payments for evaluation and management (E/M) services were inappropriate. They intend to review multiple E/M services associated with the same providers and beneficiaries to determine the extent to which electronic or paper medical records have documentation vulnerabilities. Medicare requires providers to select the billing code for the service on the basis of the content of the service and to have documentation to support the level of service reported.
Ophthalmologists—Questionable Billing
The OIG will review Medicare claims data to identify inappropriate payments and/or questionable billing for ophthalmological services, and determine the geographic locations of providers exhibiting questionable billing for ophthalmological services. Medicare Part B payments to ophthalmologists were over $6.8 billion in 2010.
Physicians and Suppliers—Noncompliance with Assignment Rules and Excessive Billing of Beneficiaries
The OIG will review the extent to which physicians and suppliers participated in Medicare and accepted claim assignment, and assess the effects of their participation and claim assignments on the Medicare program and on beneficiaries. Physicians participating in Medicare agree to accept payment on “assignment” for all items and services furnished to individuals enrolled in Medicare. CMS defines “assignment” as a written agreement between beneficiaries, their physicians or other suppliers, and Medicare. The beneficiary agrees to allow the physician or other supplier to request direct payment from Medicare for covered Part B services, equipment, and supplies by assigning the claim to the physician or other supplier. The physician or other supplier, in return, agrees to accept the Medicare-allowed amount as payment in full.
Physicians—Place-of-Service Coding Errors
The OIG will review physicians’ coding of Medicare Part B claims for services performed in ambulatory surgical centers (ASC) and hospital outpatient departments to determine whether they properly coded the places of service. Prior OIG reviews found that physicians did not always correctly code non-facility places of service. Medicare provides different levels of payments to physicians depending on where services are performed, paying a higher amount when a service is performed in a non-facility setting, such as a physician’s office, than it does when the service is performed in a hospital outpatient department or, an ASC.
Sleep Disorder Clinics—High Utilization of Sleep-Testing Procedures
The OIG will examine Medicare payments to physicians, hospital outpatient departments, and independent diagnostic testing facilities for sleep-testing procedures to assess the appropriateness of Medicare payments for high utilization sleep-testing procedures and determine whether they were in accordance with Medicare requirements. An OIG analysis conducted for claims submitted in 2010 found high utilization of sleep-testing procedures, with payments of approximately $415 million. Medicare will not pay for items or services that are not “reasonable and necessary.” Diagnostic testing that is duplicative of previous testing done by the attending physician to the extent the results are still pertinent is not covered because it is not reasonable and necessary under Medicare standards.
OIG Enforcement Measures
OIG devotes significant resources to investigating Medicare and Medicaid fraud. The OIG conducts investigations in conjunction with other law enforcement entities. In 2009, the Health Care Fraud Prevention and Enforcement Action Team (HEAT) was established by HHS and the DOJ to strengthen programs and invest in new resources and technologies to prevent and combat health care fraud, waste, and abuse. HEAT’s strike force teams use sophisticated data analysis, combined with field intelligence and traditional law enforcement techniques, to quickly identify fraud schemes and trends and hold wrongdoers accountable. In its 2013 semi-annual report to Congress, OIG reported that during fiscal year 2013, the efforts of HEAT strike force resulted in the filing of charges against 274 individuals or entities, 251 criminal actions, and $333 million in investigative receivables.
Key targets of the HEAT strike force include:
- Investigations of individuals, facilities, or entities that bill Medicare or Medicaid for services not rendered, claims that manipulate payment codes to inflate reimbursement amounts, and false claims submitted to obtain program funds
- Investigations into business arrangements that allegedly violate the Federal health care anti-kickback statute and the statutory limitation on self-referrals by physicians
- Investigation of quality-of-care and failure-of-care issues in nursing facilities, institutions, community-based settings, and other care settings and instances in which Federal programs may have been billed for services that were medically unnecessary, not rendered or not rendered as prescribed, or the care was so deficient that it constituted “worthless services”
This is but a small sample of the information provided in the Work Plan. Providers are well advised to review the sections of the plan most applicable to their provider-type and practice. Providers should also review their coding and billing practices to assure compliance with applicable regulations, as well as assessing the propriety of any financial relationships with individuals or entities in a position to make referrals. Contact Frier Levitt to speak to an attorney.
