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OIG And DOJ Issue Important New Compliance Guidance

Recently, the Office of Inspector General of the United States Department of Health and Human Services (OIG) and the Criminal Division of the Fraud Section at the United States Department of Justice (DOJ) have issued guidance on measuring the effectiveness of corporate compliance programs.  In February, DOJ placed on its website a document entitled “Evaluation of Corporate Compliance Programs.”  That document lists 119 sample questions that DOJ’s Fraud Section has in the past found relevant in its evaluation of the effectiveness of corporate compliance programs for the purpose of deciding whether to prosecute cases, and in recommending sentences for criminal violations.  These questions are separated into eleven (11) topic areas: analysis and remediation of underlying conduct, senior and middle management, autonomy and resources, policies and procedures, risk assessment, training and communication, confidential reporting and investigation, incentives and disciplinary measures, continuous improvement, periodic testing and review, third party management, and mergers and acquisitions.  While not specifically addressing health care organizations, per se, the guidance is highly relevant to organizations and practices since they are questions that Federal prosecutors will be asking when evaluating compliance programs in any criminal investigation.  The guidance can be reviewed in its entirety at https://www.justice.gov/criminal-fraud/page/file/937501/download.

Even more recently, on March 27 of this year, OIG published a parallel and more inclusive document focused specifically on the health care industry, “Measuring Compliance Program Utilization – A Resource Guide.” The Guide, which is 52 pages in length, sets out a checklist of questions broken down into seven standards based on the standard seven elements of an effective compliance programs, and further broken down into various subcategories under each element.  The guidance is the product of a round table on January 2017 that brought together a group of compliance professionals and staff from OIG “to discuss ways to measure the effectiveness of compliance programs.”  While the guidance is clear that it is not a “one size fits all,” it provides a number of ideas of “what to measure” and “how to measure” these programs, and should be mandatory reading for all compliance officers in organizations, whether a small physician’s office or a large hospital system or health care organization.  The guidance can be accessed at https://oig.hhs.gov/compliance/101/files/HCCA-OIG-Resource-Guide.pdf.

Liles Parker attorneys, and frankly any knowledgeable attorney who specializes in health care, have for many years advised clients that is essential to establish a compliance program that is implemented effectively.  Among other things, an effective compliance program establishes the culture of compliance for an organization in following the law, that should demonstrate an ethos from the top down through every employee and professional.  It also provides management with the opportunity to detect and correct problems and potential issues before they either emerge or become widespread. Many, if not most, whistleblower lawsuits are the result of employees feeling that their concerns, when reported internally, were not investigated.

Moreover, Congress has mandated compliance plans for skilled nursing facilities and the revised requirements of participation require them for both nursing and skilled nursing facilities so that the effectiveness of these programs will become part of the survey process.  And, if an investigation arises, the conversation with enforcement agencies is dramatically different when an organization can demonstrate that it has an effective program as opposed to no program, or one that sits on a shelf.

One of the criteria that OIG has had for determining whether a compliance program is effective is whether the organization measures the effectiveness of its program, itself.  At a minimum, every organization should do this once per year.

Finally, in September 2015, DOJ issued a memorandum entitled “The Individual Accountability for Corporate Wrongdoing.”  Among other things, the memorandum, referred to as the Yates Memo,” instructs prosecutors and investigators to hold highly placed individuals within an organization accountable for the organization’s misconduct.  Prior to the issuance of the Yates memo, those of us involved as defense counsel in investigations were frequently able to obtain releases for individual members of an organization in settlements of civil and administrative investigations.  Since the issuance of the Memo, releases of individuals now occur on only the rarest of occasions.

For all of these reasons, it is imperative that every health care provider establish an effective compliance program and that it periodically measure the effectiveness of that program.  These guidances provide important and helpful information in how to accomplish that result.

Michael CookLiles Parker attorneys have extensive experience in developing compliance programs, providing compliance guidance, and working with clients in investigations.  Clients having questions related to these issues should contact Michael Cook at (202) 298-8750, mcook@lilesparker.com

 

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Home Health Final Rule Creates New Exclusion Screening Obligation

March 29, 2017 by  
Filed under Featured, Health Law Articles

(March 29, 2017):  The Centers for Medicare and Medicaid Services (CMS) has recently published a new Final Rule that makes changes to the Conditions of Participation for home health agencies.  Under the Final Rule, providers are required to ensure that individuals and entities providing services under arrangement are not excluded, terminated, or debarred from any Federal health care program.  Simply put, these new requirements are an affirmative obligation to screen both the Federal and State exclusion lists.

While CMS does not provide detailed guidance on how a home health agency is supposed to meet this new requirement, it does make it clear that the responsibility of properly screening contracted entities remains with the home health agency.  Additionally, it makes no mention of how a provider could screen for a Medicaid exclusion.  This lack of clarity on how to effectively meet this Condition of Participation could be problematic since CMS may now hold an HHA liable for failing to catch a Medicaid exclusion.  Home health agencies are cautioned to ensure that they are properly screening for State exclusions in addition to Federal exclusions to avoid having their participation terminated. What should your home health agency do?  As a start, we recommend that you review the detailed discussion on this new requirement written by Paul Weidenfeld, Esq. and Catalina Jandorf at Exclusion Screening.

Do you have questions regarding your screening obligations?  Give us a call.  Liles Parker attorneys represent home health agencies around the country in connection with ZPIC audits, OIG investigations, exclusion issues, False Claims Act cases and transactional matters.  Please call Robert W. Liles for a free consultation.  He can be reached at:  1 (800) 475-1906.

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Are you Ready for the Next Round of CMS Re-Validation?

Recovery AuditCMS announced recently that it will be initiating its next round of revalidation requests to all Medicare enrolled providers and suppliers.

Current law and regulations require providers and suppliers to revalidate their enrollment with Medicare every five years (every three years for DME suppliers). There are a few changes being made to try and give providers a bit more flexibility this time around.  Below are some key highlights for the next cycle of revalidation beginning this year:

  • CMS will maintain a master list of providers/suppliers due for revalidation along with the due date for their applications here: https://data.cms.gov/revalidation. CMS has advised that all providers/suppliers should check this list to see when their application is due. If a due date is more than six months away, the list will show “TBD” for a provider/supplier due date. DO NOT SUBMIT A REVALIDATION APPLICATION IS NO DUE DATE APPEARS. IT WILL BE RETURNED.
  • The website will also provide a list of all reassignments for those suppliers that maintain reassignments.
  • Providers and suppliers don’t have to wait for a letter from their Medicare Administrative Contractor (“MAC”) to submit a revalidation application. If you are within six month of your due date shown on the above website, you are encouraged to submit your application.
  • MACs will still send an email or letter to providers/suppliers 2-3 months prior to their due date asking them to revalidate. Emails will include the title “URGENT: Medicare Provider Enrollment Revalidation Request.” If emails are returned as undeliverable, a paper letter will be sent. All letters will be sent to at least two of a providers/suppliers reported addresses (e.g. a correspondence and special payments or primary practice location address.
  • Revalidation notices sent to individual practitioners who have reassigned their billing rights to a group or groups will include a list of all reassignments on file with CMS. Special procedures will be available for groups with more than 200 members.
  • An upcoming revalidation does not relieve providers/suppliers from submitting updates to their enrollment record in the timeframes required by relevant regulations. Submit all changes of information timely, even if a revalidation is due within the next six months.

In addition to outlining the process for the next round of revalidation, CMS has provided tips for ensuring your revalidation is complete.

  • Providers and suppliers are required to revalidate their entire Medicare enrollment record, including all practice locations where they see patients and all groups to which they reassign benefits.
  • All of a provider’s or supplier’s NPIs and PTANs must be revalidated when revalidation is requested.
  • Either PECOS or the paper CMS-855 applications may be used for revalidation.
  • If a provider or supplier is deactivated for failing to submit a revalidation application on time or failing to respond to a request for additional information on a pending application, they may reactivate their enrollment by submitting a new, full application. The provider/supplier, once the application is processed and approved, will maintain their original PTAN, but the reactivation date will be whatever date the new, full application was submitted. Retroactive billing privileges back to the date of deactivation will not be granted and the provider/supplier will have gap period where they may not receive payment for services provided to Medicare beneficiaries.
  • CMS has reminded certain providers and suppliers that a fee is due with their revalidation application. All “institutional providers” that submit an application via PECOS or a paper Medicare enrollment application using the CMS-855A, CMS-855B (except physician and non-physician practitioner organizations), or CMS-855S forms are required to pay the application fee. For Calendar Year 2017, the fee is $560. It can be paid via this website: https://pecos.cms.hhs.gov/pecos/feePaymentWelcome.do#headingLv1 Be sure to print proof of payment with your revalidation application to avoid delays in processing.

CMS also noted that all providers and suppliers that have not billed Medicare for 12 consecutive months will have their billing privileges deactivated. To reactivate their provider number, a complete, new application must be submitted. Once approved, the provider/suppliers will retain its original PTAN.  The effective date of reactivation will not be retroactive to the date of deactivation.

We encourage all providers and suppliers to check CMS’ list of revalidations due in the upcoming six months. The list is updated every sixty days. If you choose to use PECOS to complete your revalidation, be sure to print a copy of your submission BEFORE you click the submit button. You need to retain a copy of what you submit indefinitely in order to substantiate what you input via PECOS. We have seen far too many providers and suppliers think they properly completed a revalidation application via PECOS only to be revoked later on because some data point was missing from a submission or was submitted under the incorrect enrollment file or field. Also:

  • If you are a physician who is the sole shareholder of your practice, you do NOT need to complete a CMS-855B in most instances. However, it is very important to properly identify your practice locations under both your individual and your entity’s enrollment in PECOS when you revalidate those enrollments. Don’t make the mistake of thinking that listing practice locations under just your individual enrollment will make them automatically appear under your entity (or vice versa).
  • Physicians and non-physician practitioners that reassign payments to groups must identify all groups to which they reassign on their revalidation. Failure to list a group may result in a reassignment being deactivated. You do not need to submit new CMS-855Rs with your revalidation.
  • If you check the list of revalidations that are due and you can’t locate your record after searching by name or NPI…CALL YOUR MAC. The list contains all active Medicare program providers and suppliers, including DME suppliers. If you do not appear on the list, you need to find out why.

CMS has published an article discussing the revalidation process in more detail here: https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/downloads/SE1605.pdf  In addition, you may visit this CMS website for additional information: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/Revalidations.html

Liles Parker PLLC attorneys are experienced in helping providers and suppliers with the Medicare enrollment and revalidation process. Please contact us if you have questions or need assistance.

Jennifer Papapanagiotou, Esq is a health law attorney with the firm, Liles Parker, Attorneys & Counselors at Law.  Liles Parker has offices in Washington DC, Houston TX, McAllen TX and Baton Rouge LA.  Our attorneys represent dentists, orthodontists and other health care professionals around the country in connection with Medicare provider enrollment and revocation matters.  Need assistance?  For a free consultation, please call: 1 (800) 475-1906.

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Home Health Audits: Pre-Claim Demonstration Project Update – Part 1.

(January 9, 2017):  As the Centers for Medicare and Medicaid Services (CMS) has announced, the alleged error rate associated with home health claims has risen from 17.3 % in FY 2013 to 51.38% in FY 2014 and 58.95% in FY 2015.  In light of these increases, CMS has taken steps to address the home health claims error rate.  Section 402(a)(1)(J) of the Social Security Amendments of 1967 authorizes the Secretary for the Department of Health and Human Services (HHS) to develop demonstration projects that:

“[D]evelop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act.”

Consistent with this authority, on February 5, 2016, the Centers for Medicare and Medicaid Services (CMS) published notice in the Federal Register that it intended to collect information that would be used by the agency to serve as a:

“[B]aseline estimate of probable fraud in payments for home health care     services in the fee-for-service Medicare program.”  42 U.S.C. 1395b-1(a)(1)(J).

On June 8, 2016, CMS announced in the Federal Register (81 Fed. Reg. 37598) that five states would be part of the new Pre-Claim Review Demonstration. These states included:  Illinois, Florida, Texas Michigan and Massachusetts.  While the program was implemented in Illinois on August 3, 2016, the rest of the implementation schedule was delayed due to a variety of implementation-related problems.

CMS has recently announced that the Pre-Claim Demonstration Project will be resumed and that it will be implemented in Florida on April 1, 2017.  While no implementation dates have been announced yet for Texas and the remaining test states, Texas home health providers could conceivably be facing this program as early as May 1, 2017.

In addition to providing an overview of the home health Pre-Claim Demonstration Project, this article examines the primary reasons for claims denial identified so far by Illinois home health agencies. In this first article, we are focusing on the denial reasons associated with errors identified with face-to-face and plans of care / certification / recertification documentation.

I. What are Medicare’s Home Health Benefit Requirements?

To qualify for the Medicare Home Health benefit, under 1814(a)(2)(C) and 1835(a)(2)(A) of the Social Security Act, a Medicare beneficiary must meet the following requirements:

  • Be confined to the home at the time of services;
  • Medicare considers the person homebound if:

1) There exist a normal inability to leave the home, and

2) Leaving home requires a considerable and taxing effort.

  • Additionally, one of the following must also be true:

1) Because of illness or injury, the person needs the aid of supportive devices such as crutches, canes, wheelchairs, and walkers; the use of special transportation; or the assistance of another person in order to leave their place of residence; or

2) The person has a condition such that leaving his or her home is medically contraindicated.

  • Under the care of a physician;
  • Receiving services under a plan of care established and periodically reviewed by a physician;
  • Be in need of skilled services;
  • Have a face-to-face encounter with an allowed provider type as mandated by the Affordable Care Act. This encounter must:

1) Occur no more than 90 days prior to the home health start of care date or within 30 days of the start of the home health care; and be related to the primary reason the patient requires home health services and was performed by a physician or non-physician practitioner.

II. Primary Reasons for the Denial of Home Health Claims Identified:

Based on the claims submitted by home health agencies in Illinois thus far, the following reasons for denial have been cited by Palmetto when reviewing agencies’ home health claims:

Denial Reason Code
Face-to-Face Errors


HH01A
The physician certification was invalid since the required face-to-face encounter document was missing (actual clinical note for the face-to face encounter visit for admissions on or after 1/1/15, or the narrative for admissions on or after 4/1/11and before 1/1/15) Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5.1.1 and 30.5.1.2.


HH01B
The physician certification was invalid since the required face-to-face encounter document was untimely and/or the certifying physician did not document the date of the encounter. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5.1.1.2


HH01A
The physician certification was invalid since the face-to-face encounter was not performed by an approved practitioner. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5.1.1.1


HH01D
The physician certification was invalid since the required face-to-face encounter was not related to the primary reason for home health services. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5.1.2


Denial Reason Code
Plan of Care / Certification / Recertification


HH02A
The Plan of Care was missing. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.2.


HH02B
The content of the Plan of Care submitted was insufficient. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.2.1.


HH02C
The Plan of Care submitted was not signed. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.2.3


HH02I
The Plan of Care submitted was not signed timely by a qualified physician. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.2.4.
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HH02D
Missing physician certification/recertification. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5


HH02E
The physician certification/recertification submitted does not support skilled need. Documentation in the certifying physician’s medical records and/or the acute/post- acute care facility’s medical records (if the patient was directly admitted to home health) shall be used as the basis for certification of home health eligibility. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5 and 42CFR 424.22 (a) and (c).


HH02F
The physician certification / recertification submitted does not support homebound status. Documentation in the certifying physician’s medical records and/or the acute /post-acute care facility’s medical records (if the patient was directly admitted to home health) shall be used as the basis for certification of home health eligibility. Refer to CMS IOM Publication 100- 02, Chapter 7, Section 30.5 and 42CFR 424.22 (a) and (c).


HH02G
The physician recertification estimate of how much longer skilled services are required is missing. Refer to CMS IOM Publication 100-02, Chapter 7, Section 30.5.2.


HH02H
The home health agency generated record contained relevant clinical information addressing the “confined to the home” (homebound) eligibility requirement, which was corroborated by the certifying physician or the acute/post-acute facility documentation, but was NOT signed and dated by the certifying physician. Please have the certifying physician sign and date the relevant HHA-generated information and resubmit. Refer to CMS IOM Publication 100-08, Chapter 6, Section 6.2.3.


HH02J
The home health agency generated record contained relevant clinical information addressing the “need for skilled services” eligibility requirement, which was corroborated by the certifying physician or the acute/post-acute facility documentation, but was NOT signed and dated by the certifying physician. Please have the certifying physician sign and date the relevant HHA-generated information and resubmit. Refer to CMS IOM Publication 100-08, Chapter 6, Section 6.2.3.

III. Lessons to be Learned:

Home health agencies in Florida, Texas, Michigan and Massachusetts should carefully review the denial reasons outlined above and conduct internal audits of your home health claims documentation to determine whether your agency’s documentation is complete.  The experiences of home health agencies in Illinois can be invaluable to your efforts to better ensure the full compliance of your agency with applicable statutory and regulatory requirements.  In future installments of this article, we will examine other reasons for denial seen by Illinois home health agencies.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

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Medicaid Dental Audits are Examining Dentist Eligibility to Provide Treatment

Doc Prescription(January 9, 2017):  A recent report of the New York State agency that administers the Medicaid program by the Department of Health and Human Services, Office of Inspector General (OIG) further highlights the importance of ensuring that dentists providing services to Medicaid beneficiaries are properly licensed, enrolled as a Medicaid provider and not excluded from program participation.  This article examines the steps that must be taken by all dental practices providing services to Medicaid beneficiaries in order to ensure that their providers meet these basic eligibility requirements.

 

I. Has Your Dental Practice Implemented a Compliance Program?

As an initial step, every dental practice participating in the Medicaid program must develop and implement an effective Compliance Program. Among its many provisions, the Affordable Care Act requires that a “provider of medical or other items or services or supplier within a particular industry sector or category” shall establish a compliance program as a condition of enrollment in Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP).  An effective Compliance Program can greatly assist a dental practice in its efforts to ensure that each of its dentists are eligible to provide and bill for services administered to Medicaid beneficiaries.

II. Are Your Dentists Properly Licensed?

As a first step to determining eligibility, you must ensure that the individuals providing dental services in your practice are properly licensed by the state.  All states require that dentists be properly licensed in order to engage in the practice of dentistry.  For example, anyone seeking to practice a profession in the State of New York must comply with a strict requirements set out in Title VIII of the New York State Education Law.  Under this law, Article 133 – Dentistry and Dental Hygiene, defines the practice of dentistry in §6601.  As the applicable section provides:

  • 6601. Definition of practice of dentistry.

The practice of the profession of dentistry is defined as diagnosing, treating, operating, or prescribing for any disease, pain, in jury, deformity, or physical condition of the oral and maxillofacial area related to restoring and maintaining dental health. The practice of dentistry includes the prescribing and fabrication of dental prostheses and appliances. The practice of dentistry may include performing physical evaluations in conjunction with the provision of dental treatment.

While the definition of the practice of dentistry has been purposely written in broad, general terms, the law clearly reflects that only an individual properly licensed to practice dentistry can engage in the profession or use the title of “dentist.”  As set out this section:

  • 6602. Practice of dentistry and use of title “dentist”

Only a person licensed or otherwise authorized to practice under this article shall practice dentistry or use the title “dentist.”

Should an unlicensed individual engage in the practice of dentistry, they may be guilty of a Class E Felony §6612 of the New York State Education Law.  Moreover, if a licensed dentist aids of abets three or more unlicensed persons in the practice of the profession, that person may be guilty of a Class E. Felony.

As part of your ongoing compliance efforts, you should periodically verify that each of your professionals are properly licensed by the state to practice dentistry and that there are no limitations on their license.  It is also important to monitor the status of any licenses maintained by members of your staff in other states.

III. Is a Dentist Properly Enrolled as a Medicaid Provider?

All states have established strict requirements that must be met if a dentist desires to enroll as a Medicaid provider. For example, the New York Medicaid Enrollment Form expressly states that:

You will be at financial risk if you render services to Medicaid beneficiaries before successfully completing the enrollment process. Payment will not be made for any claims submitted for services, care, or supplies furnished before the enrollment date authorized by the Department of Health.

Unfortunately, when audits of paid Medicaid dental claims are conducted, this is a common risk area that has been identified around the country.  Dental practices bringing on new staff may mistakenly think that it is permissible to bill for dental services provided by a non-credentialed dentist (whose enrollment application with Medicaid is pending) under the number of a credentialed dentist.  In most states, such a practice is improper and could subject a practice to fines, penalties and other sanctions.  The enrollment process is there to help protect the integrity of the Medicaid program.  If an applicant has previously been terminated, denied enrollment, suspended or otherwise sanctioned by Medicaid, a state may determination that it is not in the interests of the program to allow the applicant to participant in the program.  Similarly, an applicant may have been convicted of a health care related crime or may have adverse licensure actions pending in another state. For these reasons (and others), the enrollment process is an essential tool used by the state to filter out applicants that may represent a significant risk to the Medicaid program or its beneficiaries.

IV. Have You Screened Your Dentists and Staff Through Available Databases?

Among its many duties, OIG has been delegated the authority to “exclude” individuals and entities from participating in federal health benefits programs. Depending on the nature of the offense, the decision to exclude an individual or entity may be either mandatory or permissive.  There are currently 38 state databases and 2 federal databases that must be checked every 30 days to ensure that the members of your staff have not been added to the one or more exclusion list. Should you fail to properly screen and inadvertently employ an excluded dentist or other staff member, you may face overpayments, civil monetary penalties and / or other sanctions. Essentially, Medicaid will not pay for any claim if an excluded individual or entity contributed to the basket of services provided to the patient — either directly or indirectly.   Exclusion screening is a fundamental component of an effective Compliance Plan.  There are a number of companies that can provide these screening services for a low monthly cost. Two of our attorneys established a company, Exclusion Screening, LLC to conduct these screening services. For information on their services, you can call:  1 (800) 294-0952.

V. Lessons Learned.

As a participating provider in the Medicaid program, you are obligated to comply with a wide variety of statutory and regulatory provisions.  Confirming the eligibility of each of your professional staff members to provide services to Medicaid beneficiaries is merely one of these requirements. The development, implementation of an effective Compliance Program can greatly reduce your overall level of regulatory risk.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

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Responding to Audits of Home Health Agencies by the Office of Inspector General of Home Health Agency Services

November 23, 2016 by  
Filed under Featured, Health Law Articles

AuditThe Office of Audit Services, Office of Inspector General (“OAS”), is in the process of conducting audits of large home health agencies.  These audits are being conducted, in part, because the Centers for Medicare and Medicaid Services (“CMS”) had determined through the Comprehensive Error Rate Testing Program (“CERT”) that for 2014, there was greater than a 50% error rate nationally in Medicare claims for home health services.  Additionally, it is our belief that because the advent of alternative payment methodologies is likely to diminish the relevance of the current process for medical necessity audits in the future, home health agencies are likely to experience a spike in audits of Medicare claims in the near future.

Irrespective of the motivation behind the audits, the first two audit reports resulted in findings of large error rates with extraordinary recommended refunds of more than $15 million for one agency and more than $8 million for the other.  These results were generated by the application of a statistical extrapolation and a recommendation that the results be applied with an attendant request for refunds, not only for the three-year look-back period, but also for earlier years as a result of the “60 day” repayment rule.  See Medicare Compliance Review of Excellent Home Care Services, LLC, Report No. A-02-14-01005 (OAS, July 2016); Medicare Compliance Review of Home Health VNA for 2011 and 2012, Report No. A-01-13-00518 (August 2016).

As a result, we are aware of several companies that are now undergoing similar types of audits by OAS.  The review of these claims has been subcontracted to Maximus, a Qualified Independent Contractor (“QIC”) with experience in reviewing medical necessity audit determinations.

In the past for claim audits by MACs or ZPICs, clients would frequently submit the medical records without preparing any claim summaries, and instead prepare those summaries for purposes of the appeals process after the initial findings.

Because of the extraordinary refunds that have been recommended by the OAS reports cited, above, coupled with the significant delay in obtaining ALJ hearings after refunds are required, providers that receive notices of these audits may wish to take a more proactive approach to defend the legitimacy of the claims under review, including retaining and working with legal counsel at the beginning stage of this process.

Specifically, providers undergoing these audits of which we are aware have been asked to submit the medical records for 100 claims.  For each of these claims, providers should bates label the pages of the claim.  Additionally, they should organize the records so that it is easy to track the various components of the adverse findings of the earlier audit reports, such as face-to-face, nursing, therapy, etc.  Finally, they may wish to consider submitting detailed claim summaries that identify how each of the claims meets the various criteria for coverage and payment, that cite to specific pages of the medical record and that are submitted at the time that the client initially submits the medical record.  Additionally, to the extent that the initial review discloses gaps or ambiguities that can be appropriately and legitimately supplemented or explained, agencies may wish to accomplish that process up front, rather than risking the potential of adverse findings that might not otherwise accurately reflect the claims.  By responding proactively, providers may be able to minimize the likelihood of recommended denials based upon misunderstandings by the reviewers.

Given the magnitude of the findings and recommendations for refunds in the two audit reports published to date, we strongly recommend that providers who are notified that they are to undergo these audits contact legal counsel familiar with responding to audits at the initial stage, rather than waiting for the initial recommendations or draft audit report. Knowledgeable legal counsel familiar with the audit process and the types of individuals conducting the audit, can  work effectively with the clinical team to present the records to the audit team in a manner that provides an accurate picture of the claim at the beginning stage, and by doing so, potentially minimize or avoid improper adverse findings prior to the issuance of the audit report .

 

Michael CookBy Michael H. Cook.  Michael is the co-chair of Liles Parker’s health care group and has more than 35 years of experience representing providers in regulatory matters, including matters of this nature. Before entering private practice, Michael also represented the Federal regulators of the Medicare and Medicaid programs, is a member of the Board of Medical Assistance Services in Virginia, and has advised the campaigns of a number of candidates for state and federal office.  Any entity experiencing an audit of this nature or having questions can contact Michael at (202) 298-8750 or mcook@lilesparker.com.

 

 

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Dental Claims Audits on the Rise — How to Protect your Practice

October 11, 2016 by  
Filed under Dental Law Articles, Featured

Audit(October 11, 2016): More than 45 million children receive government-funded dental care served under Medicaid and CHIP programs. This equates to approximately 1 out every 3 children in the country.  The dental care provided includes screening services and other preventive, diagnostic, and treatment services that are medically necessary and properly documented. Under the mandatory Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) benefit, children in Medicaid are entitled to dental care at as early an age as necessary, needed for relief of pain and infections, restoration of teeth and maintenance of dental health.”[1]

 I. Dental Claims Audits are Increasing Each Year.

In 1996, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted.  With the passage of HIPAA, both the U.S. Department of Justice (DOJ) and the Department of Health and Human Services (HHS), Office of Inspector General (OIG) received significant funding to hire prosecutors, investigators, auditors and support staff whose duties are solely focused on the investigation and prosecution of civil and criminal health care fraud violations.  Although the vast majority of health care matters investigated by federal and state law enforcement agencies remain focused on Medicare-reimbursed program areas, over the last five years we have seen a notable increase in the number of Medicaid dental cases investigated by OIG and / or state Medicaid Fraud Control Unit (MFCU) personnel.  It is therefore essential that dentists participating in the Medicaid program take steps TODAY, not after an audit has already been initiated by the government, to conduct an assessment of your medical necessity, documentation, coding, billing and business practices to ensure that your organization is operating within the four corners of the law.

II. What are the Primary Ways that a Dental Practice is Targeted for Audit?

With rare exceptions, “random” audits don’t occur.  If you receive a letter from OIG, your state MFCU or a private dental payor seeking records in connection with an audits, more than likely this request arose due to the one of the following reasons:

  • Predictive Modeling / Data Mining. Most audits of dental claims are the results of data mining. OIG has developed several measures, in consultation with experts at state Medicaid agencies, the Centers for Medicare and Medicaid Services (CMS), the American Dental Association (ADA) ADA, and the American Academy of Pediatric Dentistry (AAPD), to identify providers with billing patterns that are noticeably different than their peers.
  • These can include “complaints” filed by Medicaid beneficiaries, other dentists, other dental practices (such as competitors), disgruntled current and former employees.
  • Overpayment Data. This may be based on a dental practice’s “error rate,” the practice’s history of repeated overpayments or similar data.
  • Audits and investigations of Medicaid dental fraud are often based on referrals from CMS contractors, state MFCUs, and other law enforcement entities.  Notably, private dental insurance payors are also referring cases to the government.
  • OIG and GAO regularly issue reports addressing areas of concern.  These reports are often a harbinger of ongoing and future enforcement initiatives.
  • State Dental Licensing Boards. In a number of states, State Dental Boards, and other licensing entities are regularly making audit referrals to CMS.

When conducting a review of Medicaid dental claim utilization data to identify a potential audit target, the factors or measures considered by law enforcement vary from case-to-case.  Some of the common measures examined include:

  • Dentists who received extremely high payments per child;
  • Daily Volume. Dentists who rendered an extremely large number of services per day;
  • Number of Individual Patient Services. Dentists who provided an extremely large number of services per child per visit;
  • Number of Patients. Dentists who provided services to an extremely large number of children;
  • High Proportion of a Specific Procedure. Dentists who provided certain selected services to an extremely high proportion of children, i.e., pulpotomies and extractions.
  • Amount of Payments Per Medicaid Patient. Distribution of payments per beneficiary for general dentists with 50 or more Medicaid beneficiaries.

An example of the last bulleted point is illustrated below.  When OIG examined payments made to general dentists with 50 or more Medicaid beneficiaries, they were able to identify dental provider whose reimbursements per Medicaid patient were significantly higher than those of their peers.  As a result, the government considers these dentists to be “outliers” is more likely to initiate an audit of investigation of this provider’s practices to ensure that they comply with applicable rules and regulations.

III.  Specific Problems Identified in Previous OIG Medicaid Dental Audits:

Once an audit is initiated, the government’s medical reviewers will carefully assess your documentation to ensure that it meets all applicable requirements for coverage and payment.  Some of the problems found in previous Medicaid dental audits include:

  • Billing Medicaid for unnecessary dental procedures
  • Billing Medicaid for dental procedures that were never performed. When conducting an audit OIG identified billing utilization rates and other documentation irregularities that defied common sense. Several example include:

Example: One dentist and his former employer were unable to produce medical records to support 335 claims totaling $26,657 that were sampled at his practice.

Example: One dentist stated that he can complete a filling procedure in 30 seconds.

Example: Two dentists billed for four or more fillings on one tooth or for two types of fillings on the same surface of the same tooth.

Example: One dentist submitted almost identical claims for eight recipients, billing for three or more surface restorations on the same 11 teeth during one office visit for each of the eight recipients.

  • Billing Medicaid for substandard work. Submitting claims for reimbursement under another dentist’s Medicaid provider number.
  • Billing Medicaid for multiple cleanings within a six-month period.
  • Too many or too few X-rays. In some cases, the x-rays have been taken incorrectly, taken by employees not licensed to operate the x-ray machine, and/or unreadable or even blank.
  • Inappropriate Medicaid billings for dental restorations.

Example: On 37 occasions, four dentists administered 25 or more fillings to one recipient during a single office visit.

  • Inappropriate use of protective stabilization devices. For instance, using a “papoose board” to immobilize the children, regardless of whether or not restraint was necessary.
  • Unnecessary pulpotomies.
  • Altering dates or entering false information on patient charts.
  • Paying kickbacks for referrals of Medicaid patients.
  • Billing for services performed by unlicensed or uncertified employees.

IV. Private Payor Dental Fraud Enforcement Actions:

It is importance to keep in mind that the government is also aggressively investigating and prosecuting cases where dental professionals are alleged to have defrauded a non-government funded, private insurance company.  Pursuant to 18 U.S.C. § 1347, an individual will be found liable for health care fraud if they meet the following definition of:

Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to:

(1) Defraud any health care benefit program; or
(2) Obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

In addition, criminal penalties for false claims are also available pursuant to 18 U.S.C. § 287, which allows for punishment of up to five years in prison and a fine calculated under the United States Sentencing Guidelines. Hence, health care enforcement authorities have many tools to utilize when seeking to punish healthcare providers. Dentists that are participating in a state Medicaid dental program must ensure that both their operational and documentation practices are reviewed so that entities processing and examining their patient treatment records can readily ascertain why certain care and treatment claims were submitted.

V. Steps Your Dental Practice MUST Take to Better Ensure Regulatory Compliance:

As a first step, we strongly recommend that you review your state Medicaid and private insurance participation agreements and / or enrollment application.  In all likelihood, you are required to have an effective Compliance Program in place.  For instance, the Texas Medicaid Provider Enrollment Application, prospective Texas Medicaid providers must attest to its Compliance Program Requirement. Under this condition, a provider must verify that in accordance with requirement TAC 352.5(b)(11), the provider has a Compliance Program containing the core elements as established by the Secretary of Health and Human Services referenced in §1866(j)(8) of the Social Security Act (42 U.S.C. §1395cc(j)(8)), as applicable. Does this section look familiar to you? A Texas Medicaid provider must affirmatively attest that he or she has a compliance plan in place prior to submitting his or application for enrollment. However, your dentist client may have simply checked the box “yes” without even realizing what a Compliance Program is or what is required under this section. If your dental practice is audited, one of the first documents requested by OIG and / or a MFCU may be a copy of your Compliance documents.  If you cannot produce them and it is alleged that you falsified your application you may be in serious trouble.

VI. Conclusion:

Dentists participating in their respective state’s Medicaid program must routinely review their practice and documentation procedures. Furthermore, all Medicaid dentists should have an effective Compliance Plan within their practice to reduce the number of audits by Medicaid contractors and become less of a target by MFCUs.  Current dental cases our attorneys are handling include:

  • False Claims Act litigation.
  • Drafting and implementation of an effective Compliance Program.
  • Performance of a “GAP Analysis.”
  • Representation in Medicaid related audits.
  • Representation in private payor audits.

Please let me know if we can assist you or your dental practice in these or other areas of dental law.  Moreover, should you require assistance with drafting a Compliance Plan for your dental practice or have any questions, call us to discuss how we can help with your compliance efforts.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

[1] 42 C.F.R. § 441.56(c)(2).

 

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Home Health Pre-Claim Review Demonstration Project Update!

Multiple Patient Record(September 20, 2016): On August 3, 2016, the Centers for Medicare and Medicaid Services (CMS) implemented its “Pre-Claim Review Demonstration” project in Illinois.  This demonstration project effectively requires that Illinois home health agencies submit home health claims for review by the Medicare Administrative Contractor (MAC) or face possible penalties (and be forced to have the claim evaluated through the pre-payment process).  As part of the pre-demonstration project, home health agencies are required to submit a complete set of medical records which show that the claim at issue is associated with medically necessary services, meets applicable documentation requirements, qualifies for Medicare coverage and has been coded and billed correctly.  As the demonstration project has been rolled out in Illinois, many home health agencies have experienced problems with the “affirmation” process.  It has been reported that the MAC has allegedly “missed” documentation that has been submitted and that very few of the claims reviewed have been affirmed by the reviewing contractor.  While CMS has not address these specific points, it has acknowledged that additional refinements in the program are required before expansion can continue. Earlier today, CMS announced that the home health pre-claim review demonstration project is temporarily being placed on hold to allow for additional provider education efforts to be conducted.  These provider educational efforts are expected to focus on the main reasons that pre-claim requests have been “non-affirmed” and the documentation that is required to support a home health claim.  Additional information regarding the home health pre-claim demonstration review project is set out below.

I. Background

Section 402(a)(1)(J) of the Social Security Amendments of 1967[1] authorizes the Secretary for the U.S. Department of Health and Human Services (HHS) to develop demonstration projects that:

“develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act.”[2]

The home health pre-claim review demonstration project was initiated by CMS due to the increase over the last three fiscal years of improper payment rates for home health claims. On June 8, 2016, CMS announced in the Federal Register[3] that five states would be involved in this new project to collect information to compile a “baseline estimate of probable fraud in payments for home health care services in the fee-for-service [FFS] Medicare program.” These five states include Illinois, Florida, Michigan, Massachusetts, and Texas. Furthermore, the goal of the project was to assess the use of pre-claim reviews as a means of reducing Medicare FFS expenditures for home health services by reducing improper payments while maintaining or improving the quality of care experienced by the beneficiary.”[4]

II. Pre-Claim Review Demonstration Process

Under the pre-claim review demonstration process requires home health agencies are strongly encouraged to request a preliminary confirmation of coverage by submitting home health claims and associated clinical documentation, for review after services have begun but before the final claim for services is submitted for payment. The home health pre-claim review process is designed to better help ensure that applicable medical necessity, documentation, coverage, coding and billing rules are met before a claim is submitted to Medicare for payment.

The pre-claim review process does not create new clinical home health documentation requirements. Rather, home health agencies are only required to submit the same information they currently maintain for payment. As mentioned, they will do so earlier in the process, which will help assure that all relevant coverage and clinical documentation requirements are met before the claim is submitted for payment. CMS contends that the pre-claim review process will not delay care to Medicare beneficiaries and will not alter the Medicare home health benefit.

Home health agencies in one of the five demonstration states have been advised that if they do not submit their claims through the pre-claim review process, those claims will be flagged for prepayment review and will essentially treated like an ADR.  Moreover, after the first three months of the program, even if found to qualify for coverage and payment, CMS intends to reduce payment by 25% on each claim that is not submitted through the pre-claim demonstration review process.

III. Conclusion

The decision by CMS to postpone the implementation of the pre-claim review demonstration in Florida was influenced, in large part, by the advocacy of supportive political and home health industry groups.  The postponement of the pre-claim review demonstration project is a major victory for health care providers in Florida, Michigan, Massachusetts, and Texas. Unfortunately, However, the implementation of the demonstration project is inevitable so providers should continue to prepare for the impact it will have on their health care practice. The exact start dates for Florida, Michigan, Massachusetts, and Texas have yet to be announced, but the dates will be provided on CMS’ website at least 30 days in advance to the implementation. Providers can expect a staggered start beginning with Florida, which provides additional time for preparation.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies around the country in connection with Medicare audits and compliance matters. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

 

 

[1] 42 U.S.C. 1395b-1(a)(1)(J).

[2] Id.

[3] 81 Fed. Reg. 37598.

[4] “Pre-Claim Review Demonstration for Home Health Services in Illinois,” available at http://www.palmettogba.com/Palmetto/Providers.Nsf/files/Workshop_Home_Health_PCR_Workshop_Series.pdf/$File/Workshop_Home_Health_PCR_Workshop_Series.pdf

[5] See the Palmetto GBA website for helpful resources, available at http://www.palmettogba.com/palmetto/providers.nsf/docsCat/Providers~JM%20Home%20Health%20and%20Hospice~Home%20Health%20Pre-Claim%20Review.

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More Texas Medicaid Dental Audits Are Coming in 2017!

August 23, 2016 by  
Filed under Dental Law Articles, Featured

iStock_000018404988Small(August 23, 2016): During 2014, the Texas Health Human Services Commission’s (THHSC), Office of Inspector General (IG) found itself at the center of a number of controversial investigations and probes associated with its review of Medicaid dental claims.  In response, Governor Greg Abbott appointed Stuart W. Bowen, the former Inspector General for Iraq Reconstruction to serve as the new Inspector General for the THHSC. A graduate of the University of the South (Sewanee), Mr. Bowen set out in 2015 to set the IG’s Office back on course.  Characterizing 2015 as a year of “restructuring and reform,” the IG’s Office entered 2016 ready to reinstitute an aggressive review of problematic Medicaid claims.

I.  Implementation of a New Texas Medicaid “IG Pediatric Dentistry Action Team.”

After learning from its previous missteps, the IG’s Office appears to now be taking a more systematic approach in its audit and investigation of Medicaid pediatric care cases.  As discussed in the IG’s June 2016 Quarterly Report, the IG’s Office continues to be concerned about the pediatric sedation and anesthetization practices being used on some Medicaid patients.  In response, the IG’s Office has established a new “Pediatric Dentistry Action Team” (PDAT).  According to the Quarterly Report, the IG’s Office:

 “Launched the IG Pediatric Dentistry Action Team to identify root causes of recent egregious incidents involving Medicaid pediatric dental patients and recommend improvements to Medicaid policy and contracts to prevent further loss.”

In addition to working with other state and federal law enforcement agencies, the PDAT is also expected to be working closely with the Texas Dental Board.  Notably, the PDAT is slated to examine the following two critical issues:

  • Are Medicaid dental providers meeting the required medical necessity criteria for performing procedures that use anesthetization and sedation?
  • Do the anesthetization/sedation services performed on children meet Medicaid standards?

The PDAT finalized its survey work in July 2016.  It has been conducting fieldwork this month and is expected to continue to do so in September 2016.  A final report, with the PDAT’s recommendations and “lessons learned” is not expected until later this year.

II.  What Does This Mean for My Medicaid Dental Practice?

Assuming the PDAT’s Final Report is issued in November or December 2016, we anticipate that audits and investigations flowing from their review may begin as soon as Spring 2017.  It is therefore imperative that you take steps today to better ensure that your Medicaid dental practice fully complies with all applicable laws and regulations.

As a starting point, it is essential to keep in mind that as a participating provider in the Medicaid Program, you are required to have an effective Compliance Plan in place.

As set out to the Texas Medicaid Provider Enrollment Application, prospective Texas Medicaid providers must attest to its Compliance Program Requirement. Under this condition, a provider must verify that in accordance with requirement TAC 352.5(b)(11), the Provider has a Compliance Program containing the core elements as established by the Secretary of Health and Human Services referenced in §1866(j)(8) of the Social Security Act (42 U.S.C. §1395cc(j)(8)), as applicable.

Does this section look familiar to you? A Texas Medicaid provider must affirmatively attest that he or she has a compliance plan in place prior to submitting his or application for enrollment. However, you may have simply checked the box “yes” without even realizing what a compliance program is or what is required under this section. This may be a serious mistake.  An effective Compliance Plan can better assist you in meeting your statutory, regulatory and contractual obligations as a Medicaid provider.

III.   Areas of Risk Facing Medicaid Dental Providers:

Potential risk areas include, but are not limited to:

  • Failure to meet the medical necessity criteria for performing procedures that use anesthetization and sedation on Medicaid beneficiaries.
  • Failure to meet Medicaid’s standards for the anesthetization and / or sedation services performed on children.
  • Billing Medicaid for unnecessary procedures.
  • Billing Medicaid for procedures that were never performed.
  • Billing Medicaid for substandard work. Submitting claims for reimbursement under another dentist’s Medicaid provider number.
  • Billing Medicaid for multiple cleanings within a six-month period.
  • Too many or too few X-rays. In some cases, the x-rays have been taken incorrectly, taken by employees not licensed to operate the x-ray machine, and/or unreadable or even blank.
  • Inappropriate Medicaid billings for dental restorations.
  • Inappropriate use of protective stabilization devices. For instance, using a “papoose board” to immobilize the children, regardless of whether or not restraint was necessary.
  • Unnecessary pulpotomies.
  • Altering dates or entering false information on patient charts.
  • Paying kickbacks for referrals of Medicaid patients.
  • Billing for services performed by unlicensed or uncertified employees.

IV.  Conclusion:

Our attorneys currently represent a number of Medicaid dentists in Texas (and in other areas of the country) in connection with Medicaid and private payor audits of dental claims.  We are also experienced in handling False Claims Act cases and in working with a dental practice to draft and implement an effective Compliance Plan.  Texas Medicaid dental providers can’t afford to wait for the next round of dental audits and investigations.  Now is the time to review the documentation, medical necessity, coverage and billing practices to ensure that your office is fully compliant with applicable state and federal Medicaid requirements.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents dentists and dental practices around the country in connection with Medicaid and private payor audit actions. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations. For a free consultation, call Robert at: 1 (800) 475-1900.

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Home Health Pre-Claim Reviews Are Here!

August 23, 2016 by  
Filed under Featured, Health Law Articles

drowning doctor(August 23, 2016):  The home health “Pre-Claim Review” demonstration project has now started and will be in place for at least the next three years. How did we get to this point?  Unfortunately, this demonstration project was initiated (in large part) based on the fact that  improper payment rate for home health claims has gone 17.3 % in FY 2013  to 51.38% in FY 2014 and 58.95% in FY 2015.

The Center for Medicare and Medicaid Services (CMS) has primarily attributed this increase due to the failure of home health agencies (and their referring physicians) to fully meet documentation requirements to support the medical necessity of the services.

I. Background:

Section 402(a)(1)(J) of the Social Security Amendments of 1967[1] authorizes the Secretary for the Department of Health and Human Services (HHS) to develop demonstration projects that “develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services under the health programs established by the Social Security Act.”  Consistent with this authority, on February 5, 2016, the Centers for Medicare and Medicaid Services (CMS) published notice in the Federal Register that it intended to collect information that would be used by the agency to serve as a baseline estimate of probable fraud in payments for home health care services in the fee-for-service Medicare program.”  This baseline is to be comprised of information gathered from home health agencies, referring physicians and Medicare beneficiaries.

On June 8, 2016, CMS announced in the Federal Register (81 Fed. Reg. 37598) that five states would be part of the new Pre-Claim Review Demonstration project. For these states, preapproval is being required before final home health claims can be submitted.

  • Illinois (originally set to begin August 1, 2016)
  • Florida (no later than October 1, 2016).
  • Texas (no later than December 1, 2016).
  • Michigan (no later than January 1, 2016).
  • Massachusetts (no later than January 1, 2016).

II. What is CMS Telling Medicare Beneficiaries About the Pre-Claim Review Project?

CMS has notified beneficiaries by mail that a “new Pre-Claim Review Demonstration for Home Health Services” was to be initiated in Illinois on August 1, 2016.  (It was ultimately delayed until August 5, 2016). The letter sent to beneficiaries states that “This new demonstration doesn’t change your Medicare home health benefit and coverage requirements.”  CMS further outlines coverage requirements in its attached Fact Sheet, saying that a beneficiary must:

  • Be confined to the home at the time of services. Medicare considers you confined to the home (i.e., “homebound”) if:

(1) There exist a normal inability to leave the home, and

(2) Leaving home requires a considerable and taxing effort.

  • Additionally, one of the following must also be true:

(1) Because of illness or injury, you need the aid of supportive devices (such as a crutch, cane, wheelchair, or walker); the use of special transportation; or the assistance of another person in order to leave your home; or

(2) You have a condition such that leaving your home is medically contraindicated.

  • Be under the care of a physician;
  • Receive services under a plan of care established and periodically reviewed by a physician;
  • Need skilled services, which are services that only a skilled nurse or therapist can safely and effectively provide;
  • Have a face-to-face encounter (or visit) with a doctor or practitioner no more than 90 days before you start home health care or within 30 days after you start home health,

III. What is Palmetto GBA Telling Certifying Physicians and Practitioners?

By letter dated August 11, 2016, Palmetto GBA advised Illinois “Certifying Physician[s] / Practitioner[s]” patients that the Illinois Pre-Claim Review demonstration project for home health services began on August 1, 2016.   Palmetto GBA’s letter to certifying providers further stated that:

“As the certifying physician/practitioner, you are required under the Medicare program to supply the HHA or beneficiary face-to-face encounter visit notes as well as any other documentation that supports medical necessity for the home health care services ordered.”

Palmetto GBA’s letter further notes that to qualify for the Medicare home health care benefit, the patient must:

  • Be confined to the home;
  • Be under the care of a physician;
  • Be receiving services under a plan of care established and periodically reviewed by a physician;
  • Be in need of skilled nursing care on an intermittent basis or physical therapy or speech-language pathology; or have a continuing need for occupational therapy;
  • Have a face-to-face encounter with a medical provider as mandated by the Affordable Care Act for the initial episode of care.

Palmetto GBA’s letter to certifying providers concludes by stating that:

“What You Need to Know

. . . As the certifying physician/practitioner,  you are required under the Medicare program to supply the HHA or beneficiary face-to-face encounter visit notes as well as any other documentation that supports medical necessity for the home health care services ordered.”

Palmetto GBA’s letter concludes by noting: 

“Your Responsibility

If you are the certifying physician/practitioner for a Medicare patient, and plan to  order/refer home health care services, it is imperative that patient medical records include comprehensive clinical assessment data and are submitted to the HHA in a timely manner. Please watch this video on Home Health Face-to-Face  Documentation on Palmetto GBA’s website at www.PalmettoGBA.com/HHH.”

IV. Is Participation in the Pre-Claim Review Project Really Voluntary?

Both CMS and Palmetto GBA state that the demonstration project is “voluntary.”  Is it really voluntaryAs Palmetto GBA’s own website acknowledges:

“Final claims submitted without a Pre-Claim Review request during the first three months of the demonstration from the start date in that state will not be subject to a payment reduction.”

After this three month period:

“If a Home Health Agency in a demonstration state does not submit a Pre-Claim Review request, the final claim will be subject to pre-payment review. . . If no Pre-Claim Review request was submitted and the claim is determined  through pre-payment medical review to be payable, it will be paid with a 25 percent reduction of the full claim amount. . . The 25 percent payment reduction is non-transferable to the beneficiary. . . The 25 percent payment reduction is not subject to appeal.“  (emphasis added).

V. How Will a “Request for Anticipated Payment” (RAP) be Handled?

RAPs are not subject to the Pre-Claim Review process. At this time, no changes in the RAP submission process is anticipated – RAPs should be submitted in the normal process — there will not be any changes in the process and payment of a RAP.  A home health agency must submit a final claim within 120 days of the start of the episode OR 60 days after the paid date of the RAP. Please keep in mind, if a final claim has not been submitted in a timely fashion, the RAP will continue to be automatically cancelled.

VI. How Will a “Low Utilization Payment Adjustment” (LUPA) be Handled?

Home health services for less than 60days will still be subject to Pre-Claim Review, with the following exception:

  • LUPAs occur when four or fewer visits are provided in a 60 day episode. LUPAs are not subject to the Pre-Claim Review process.

VII. How Should Services With Modifier GY be Handled?

Home health services that are not covered by Medicare should be appended with a GY Modifier.  This modifier reflects the fact that the item or service does not meet the definition of a Medicare covered benefit.  Home health services billed with a GY Modifier are not subject to Pre-Claim Review.

VIII. How Should Services With Modifier GA be Handled?

Use of a GA Modifier indicates that that a provider expects an item or service to be denied because it is not reasonable and necessary.  The most common example of this situation would be for home health services that do not appear to meet the requirements under the applicable LCD.   It is appropriate to report this modifier when a beneficiary refuses to sign an ABN.  Importantly, the presence or absence of the GA Modifier does not influence Medicare’s determination for payment.  Therefore, Pre-Claim Review IS STILL REQUIRED for home health services billed with a GA Modifier.

IX. When Will Home Health Services in Texas be Subject to Pre-Claim Review?

Unless delayed (as it was for a few days in Illinois), the Pre-Claim Review process is currently scheduled to apply to all 60-day episodes of care that BEGIN on or after December 1, 2016.  This will include:

  • Initial certifications of care.
  • Recertifications of care. If a beneficiary is discharged and readmitted to the same agency within the same 60-day episode of care, these claims are subject to the Pre-Claim Review process.
  • If a new admission (start of care OASIS) is required, a new Pre-Claim Review request must be submitted by the agency.
  • If a beneficiary transfers to another home health agency during a 60-day episode of care, the RECEIVING home health agency must submit a Pre-Claim Review Please note, even if a beneficiary with a “provisionally affirmed decision” transfers to another home health agency during the same 60-day episode of care, the RECEIVING home health agency must still submit its own Pre-Claim Review request.

X. What Happens When a Claim is Submitted for Pre-Claim Review?

CMS is requiring that Palmetto make a decision and notify an agency within 10 business days (excluding federal holidays) of the initial submission for Pre-Claim Review.   Palmetto will assign a “Unique Tracking Number” (UTN) to each decision.  The decision will advise the submitting agency whether the claim is “affirmed” or non-affirmed.”   Each decision will include:

  • The UTN that has been assigned to the episode / decision.
  • Which HCPCS were affirmed.
  • A detailed explanation of which requirements were not met (if any).
  • Importantly, a provisional affirmation decision is only a preliminary finding that a future claim submitted to Medicare for the service likely meets Medicare’s coverage, coding and payment requirements.
  • A provisional affirmative decision only applies to the episode for which the Pre-Claim Review request was submitted.

XI. What Happens When Some HCPCS Codes Are Affirmed and Some are Denied?

In some instances, you may find that a Pre-Claim Review decision includes both affirmed and non-affirmed HCPCS codes. Should this occur, you can:

  • Submit the final claim with all the HCPCS codes with the UTN and the provisionally affirmed HCPCS will approve for payment and the non-affirmed HCPCS will deny with appeals rights.
  • Resubmit the PCR for the non-affirmed HCPCS codes which would result in a new UTN based on that decision which would then need to be used on the final claim.

XII. What Does it Mean When a Non-Affirmed Decision is Issued by Palmetto?

More often than not, it means that the documentation submitted does not meet one or more of Medicare’s requirements. Each notification of non-affirmation will include:

  • The UTN for the non-affirmed claim.
  • A listing of which HCPCS codes were not affirmed.
  • A detailed explanation of which requirements have not been met in order for the HCPCS codes at issue to qualify to be affirmed.

XIII. Impact on Small and Mid-Sized Home Health Agencies in Texas.

Your costs to process a claim will be significantly higher for the next three years.  The additional paperwork and effort to submit an episode for Pre-Claim Review are non-compensated and will likely prove challenging for agencies currently facing rising costs and ever-diminishing profit margins.

While CMS has issued deadlines (10 business days / 20 business days) for Palmetto to issue decisions in initial requests and resubmissions, it remains to be seen whether these deadlines will be met.  Home health agencies should anticipate delays, regardless of the goals that have been set for Palmetto. Even if Palmetto is able to process Pre-Claim review requests within its stated deadlines, home health agencies should expect to receive a significant percentage of denials (at least until it becomes more clear what Palmetto expect to see).  These denials will result in cash-flow delays.

Unfortunately, the administrative appeals process remains broken.  If you are unable to obtain a provisionally affirmed decision, you will likely face 3 – 5 years appealing a denial through Medicare’s appeal process.  Unless small and mid-sized agencies work to aggressively improve their compliance with applicable LCD rules, documentation, coverage and payment requirements, we anticipate a number of closures over the next three years.

robert_w_lilesRobert W. Liles, M.B.A., M.S., J.D., serves as Managing Partner at Liles Parker, Attorneys & Counselors at Law. Liles Parker is a boutique health law firm, with offices in Washington DC, Houston TX, San Antonio TX, McAllen TX and Baton Rouge LA. Robert represents home health agencies and other health care providers around the country in connection with Medicare, Medicaid and private payor audit actions. Our firm also represents health care providers in connection with federal and state regulatory reviews and investigations.

For a free consultation, call Robert at: 1 (800) 475-1900.

 

[1] 42 U.S.C. 1395b-1(a)(1)(J).

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