Get Ready – RAC Prepayment Reviews of Medicare Claims Are on the Horizon

(December 19, 2011):

I.          Introduction: 

As you know, RACs play an important role in the identification of Part A and Part B overpayments. Since the inception of the RAC Demonstration Project in 2005, RACs have successfully identified a number of improper claims, denying payment for reasons ranging from mere technical errors to broad concerns about medical necessity.  Unlike other contractors engaged in post-payment audits (such as Zone Program Integrity Contractors and Program Safeguard Contractors), RACs are not compensated on a fixed contract or cost-plus basis.  Instead, their compensation is based on the amount of overpayments they identify (which remain overpayments after any administrative appeals have been pursued). This arrangement has roundly been criticized by providers. Regardless of whether or not you agree with the RAC concept, the program is here to stay.  After reviewing the results of the RAC Demonstration Project, the government expanded the program and made it permanent.

II.         Expansion of the RAC’s Responsibilities:

On November 15^th, 2011, CMS announced that it was initiating a new demonstration project designed to help ensure that Medicare claims billed to the government are medically necessary and otherwise proper before they are paid. RACs will now be performing prepayment audits of provider claims. These reviews will likely be conducted in much the same manner as those currently initiated by other Medicare contractors. With the addition of RAC prepayment reviews, CMS hopes to further reduce the number of improper claims paid by the government each year.

III.        States to be Covered in the RAC Prepayment Demonstration Project:

The “RAC Prepayment Review Demonstration Project” is initially slated to target physicians, hospitals and other Medicare providers in Florida, California, Mississippi, Texas, New York, Louisiana, Illinois, Pennsylvania, Ohio, North Carolina and Missouri.  Implementation of the new pilot project is set to begin in January 2012.

IV.        Impact of Being Placed on Prepayment Review:

Importantly, there is no administrative appeals process covering prepayment audits. As a result, it is not uncommon for providers placed on prepayment review to remain in this status for four to six months or until the provider is able to show the contractor that the services billed are both medically necessary and fully meet Medicare’s coverage and documentation requirements.  Unfortunately, being placed on prepayment review can prove disastrous for providers with a large Medicare patient load.  It can effectively delay payment for several months, even if the contractor ultimately finds that the claims qualify for coverage and payment.

V.         Avoiding Prepayment Review:

Unfortunately, there is no “silver bullet” you can use to completely eliminate the risk of being placed on prepayment review. Nevertheless, there are a number of preemptive steps you can take to reduce the likelihood of such an occurrence.  To start, you should conduct a “gap analysis” of your claims.  In doing so, you will be able to learn whether or not the services you are billing meet Medicare’s medical necessity, coverage and documentation requirements.  Additionally, you will likely learn whether your utilization of services is less than, comparable to, or exceeds that of your peers.  Any deficiencies noted can be promptly addressed and added to the risk areas covered in your Compliance Plan.  At this point, you will likely be well situated to respond to any prepayment audits initiated by a RAC or another Medicare contractor.

Liles Parker attorneys and staff have extensive experience conducting gap analyses and providing compliance guidance to health care providers.  Additionally, our attorneys are skilled in assisting providers who have been placed on prepayment review. For more information, please call us today for a free consultation at 1-800 (475) 1906.

CERT Audits are Serious – Don’t Take them Lightly

(November 23, 2011):

I.             What is a CERT Audit?

The “Comprehensive Error Rate Testing” (CERT) program was implemented as a mechanism for the Centers for Medicare and Medicaid Services (CMS) to assess whether their Medicare Administrative Contractors (MACs) are properly paying claims.  In other words, is a particular MAC failing to identify and deny improper claims?  Alternatively, is the MAC denying claims which do, in fact, qualify for coverage and payment? Essentially, the CERT program serves as an integral management tool for CMS as well as an important feedback mechanism for the MACs. When problem areas are identified, they can be actively addressed by a wide variety of Medicare contractors with audit responsibilities.  Notably, several of the MACs around the country have been aggressively reasserting their roles in the corrective action process.

Essentially, MACs write the checks on behalf of CMS.  As a result, they play an extraordinarily important role in the Medicare reimbursement process. Therefore, when a CERT auditor finds that a MAC has been incorrectly reimbursing providers for claims which may not qualify for coverage, it is very important that the MAC immediately address this system-level deficiency.

II.            Recent Actions Taken by MACs in Response to CERT Audit Findings.

In response to certain CERT audit findings, one MAC recently sent notification to providers of Evaluation and Management (E/M) services explaining that new “stringent corrective actions” will be taken to address some of the more common claims errors identified by the CERT auditors when conducting their reviews of MAC payment practices.  As recent correspondence to a provider reflects, MACs are taking the results of CERT audits quite seriously, and are expanding their program integrity efforts.  As one MAC recently wrote, the contractor stands ready to:

• Suspend a provider if that provider has “too many” payment errors (it does not state how many is “too many”);
• “[R]efer every physician” to that region’s ZPIC if those providers continue to bill for services which may constitute payment errors;
• “[R]efer every physician” to the ZPIC if there is a pattern of past payment errors; and,
• “[C]onduct prepayment reviews” of future claims, up to 100% of a provider’s claims.

To be clear, none of these potential corrective actions represent new authorities.  Nevertheless, the fact that MACs are now reasserting these points is reflective of CMS’ ongoing concerns regarding the prevalence of improper claims.  Indirectly, CMS is making it crystal clear that as the initial recipient and screener of Medicare claims submitted by providers for payment, MACs play an essential role in screening out improper claims and bad providers.  As Medicare’s primary gatekeepers, MACs are responsible for identifying both improper claims and providers who may be engaged in abusive and / or fraudulent practices.

III.           What Should You Do if You Are Notified of a CERT Audit?

Should you receive a CERT audit request for documents from a CERT Documentation Contractor (CDC), it is important to keep in mind that your practice or clinic is not being accused of fraud or wrongdoing.  Fundamentally, a CERT audit is primarily designed to identify deficiencies and mistakes made by Medicare contractors.  Nevertheless, it is imperative that you take a CERT audit request quite seriously.  At the end of the day, it will be you, not the MAC, who is responsible for any overpayments identified as a result of the audit. Moreover, bad results on a CERT audit may lead to further auditing in the future.

IV.          What Actions Should a Compliance Officer Take to Being Audited?

As an organization, if you are subjected to a CERT audit, the “horse is already out of the barn,” so to speak.  Your goal is to review and monitor your organization’s coding, billing and utilization practices on an ongoing basis so that improper claims are never submitted to your MAC in the first place.   In most cases, you can check your MAC’s website to determine if their CERT auditor has already identified certain areas of concern. For instance, one MAC recently reported that out of 508 errors identified in a CERT audit of certain Medicare claims, the contractor found that:

• 311 errors were due to “insufficient documentation.”  Notably, a majority of the errors in this category were because the medical record “did not contain a valid physician’s signature” or because a diagnostic test performed “did not contain a valid physician’s order” or an identification of the provider who rendered the service.
• 132 errors were due to “lack of medical necessity” based on the medical documentation submitted.
• 37 errors were due to “incorrect coding” (primarily related to laboratory testing).
• 10 errors were due to “invasive procedures that were assessed to be without medically necessity.”
• 9 errors were due to an “incorrect procedure code” used when billing the service.
• 6 errors were the result of “billing for services that were not rendered.”
• 2 errors were due to “other errors.”
• 1 error was due to an “incorrect discharge code being used.”

Compliance Officers can take these “general” risk areas, add them to the “practice-specific” risk areas already noted, and take special note of these concerns when conducting internal reviews. The only way to avoid the scrutiny of Medicare’s various administrative contractors (MACs, ZPICs, RACs and CERT auditors) is to avoid payment errors altogether.  While no provider is perfect, the development, implementation and adherence to an effective Compliance Plan can significantly reduce the number of improper claims submitted by a provider to a MAC for reimbursement.

V.            What Actions Should a Compliance Officer Take After Receiving a CERT Audit Letter?

As Compliance Officer, upon receipt of a CERT audit request, you should carefully review the request and take steps to assemble a complete set of medical records and other supporting documentation related to the specific claims at issue.  It is important not only to make sure that your documentation is complete when sending in records to a CERT contractor, but to make sure that compliance is a daily part of your practice. Ensuring that your documentation is appropriate and accurately documents both medical necessity and the level of services performed can greatly assist you in avoiding trouble down the road.

Now, more than ever, it is important that you have an effective Compliance Plan in place.  Your Compliance Plan should explicitly set out your organization’s policies about how to correctly assess the need for, and document the services provided to a Medicare beneficiary. Otherwise, as demonstrated by the tough stance being taken by the MAC discussed above, CERT audits and other Medicare post-payment audits could raise serious problems for your practice.

Liles Parker attorneys represent health care providers in CERT, MAC, ZPIC and RAC audits and investigations.  Our attorneys have extensive compliance experience and can conduct “gap” analyses designed to place your practice or clinic on solid regulatory footing.  To speak with one of our attorneys, call 1 (800) 475-1906 for a free consultation today. 

With ZPICs, PSCs, and RACs Fighting Most Challenges to Their Extrapolation, Experience Counts

(July 20, 2010): In recent years, we have seen agents for the Centers for Medicare & Medicaid Services (CMS) increasingly rely on statistical extrapolation estimates when assessing claims overpayments. In early cases, attorneys successfully invalidated countless extrapolations by identifying relatively basic reasons for why the calculations were inconsistent with accepted statistical principles and practices.  Now, however, providers should expect for ZPICs and PSCs (and soon, RACs) to send a team of statisticians and attorneys to vigorously oppose most (if not all) hearings challenging the validity of the extrapolation calculation.

Regardless of whether you are providing Partial Hospitalization, Evaluation and Management (E/M), Home Health, Physical Therapy, Surgical, or other services, should your practice or clinic find that it is facing an extrapolated Medicare audit, it is strongly recommended that you engage qualified, experienced counsel to represent you as early in the process as possible.  Your legal counsel can then engage an expert statistician to assess the contractor’s actions and assist with the attorney’s efforts to have the extrapolation thrown out by either the Qualified Independent Contractor (QIC) or the Administrative Law Judge hearing your case.

Before you engage counsel, you should consider asking the following questions:

• Has the attorney ever handled large, complex contractor audits before? Some firms will happily take your case, despite the fact that they have little or no experience in this area of health law. Don’t pay for your attorneys to learn how to handle a case. While every case is different, an experienced firm will have developed a number of arguments and defenses that may be readily used in your case without having to conduct costly, extensive legal research.
• Can the firm provide client references who are willing to speak with you about the quality of work performed on their Medicare statistical extrapolation case?
• Who will be working on your case? Will it be an inexperienced Associate attorney or one of the partners who has actually fought and won a multitude of Medicare overpayment claims and cases where the damages have been extrapolated by the contractors?
• What are the credentials of the attorneys and paralegals who will be working on your case? Have they ever worked on the side of the government? One of our attorneys served as an Assistant U.S. Attorney for many years, ultimately being selected to serve as the First National Health Care Fraud Coordinator for the Department of Justice, Executive Office for U. S. Attorneys. In addition to a law degree, he also holds a Master’s in Health Care Administration. To fully appreciate the challenges faced by health care providers, you need an attorney who understands both the legal constraints and the practical business risks faced by health care providers.

In several of the cases we have handled, the alleged error rate has exceeded 90%.  With the resulting alleged damages often in the millions of dollars, few providers are in a position to merely pay such an overpayment.  Instead, they need experienced counsel to aggressively fight to have this overpayment overturned.  When defending these cases, it is essential that you challenge both the denial of claims and the extrapolation itself.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

 

Don’t Take ZPIC or RAC Extrapolation Calculations at Face Value – Can Their Results Be Readily Reproduced?

(July 14, 2010): Imagine a ZPIC, PSC, or RAC handing you a claim analysis rife with alleged errors, an indecipherable list of statistical formulae, and an extrapolated recovery demand that will cripple your practice or clinic.  What steps should you take to analyze their work?  Based on our experience, providers can and should carefully assess the contractor’s actions, use of formulas and application of the RAT-STAT program when selecting a statistical sample and extrapolating the alleged damages based on the sample pulled.  Over the years, we have challenged the extrapolation of damages conducted by Medicare contractors around the country, covering tens of thousands of claims.  Regardless of whether you are providing Partial Hospitalization, Evaluation and Management, Home Health, Physical Therapy, Surgical or other services, it is imperative that you work with experienced legal counsel and statistical experts to analyze the statistical sampling and extrapolation steps taken by the contractor. Should you succeed in invalidating the extrapolation, the whole games changes.  The question is – “How can you go about fighting an extrapolation calculation?”

One method is to show that the contractor’s auditor failed to identify a Statistically Valid Random Sample (SVRT).  Among the first steps is you should take is to retain experienced legal counsel to review the Medicare contractor’s actions.  Notably, there are a multitude of legal arguments which may be asserted (depending on the specific facts in your case).  Our firm has worked with several outstanding statistical experts over the years, each of which has a proven track record of analyzing the contractor’s actions and identifying any flaws made by the ZPIC or PSC when extrapolating damages.

Notably, Section 3.10.4.2 of CMS’ Medicare Program Integrity Manual establishes that the contractor is obligated to fully document the statistical methods an auditor employs:

“The PSC or ZPIC BI [Benefit Integrity] unit or the contractor MR [Medical Review] unit shall identify the source of the random numbers used to select the individual sampling units. The PSC or ZPIC BI unit or the contractor MR unit shall also document the program and its algorithm or table that is used; this documentation becomes part of the record of the sampling and must be available for review.” (emphasis added)

“The PSC or ZPIC BI units or the contractor MR units shall document all steps taken in the random selection process exactly as done to ensure that the necessary information is available for anyone attempting to replicate the sample selection.” (emphasis added)

ZPIC and PSC statisticians must be able show their work to the extent that a reviewer can attempt to “replicate” their actions and determine whether or not the steps taken were consistent with accepted principles and practices of statistical sampling.  The failure of a ZPIC or PSC statistician to fully and properly document his actions may serve as the basis for seeking to invalidate the extrapolation. The calculation of a valid statistical sample and the extrapolation of damages by ZPIC and PSC statistician is a highly complex process. After handling many extrapolated damages cases, we have found that few ZPIC or PSC statisticians fully meet their obligations to document the steps taken and / or conduct the process in a proper fashion, consistent with accepted statistical sampling procedures.  Should your practice or clinic find that it is facing an extrapolated Medicare audit, it is strongly recommended that you engage qualified, experienced counsel to represent you in the process.  Your legal counsel can then engage a qualified statistician to assess the contractor’s actions.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

A Look at RACs — Part III: What Should Physicians and other Medicare Providers Know about Appeals and Recoupment?

(July 2, 2010):  CMS’ Recovery Audit Contractor (RAC) program is now permanent and nationwide.  As we discussed in Part I of this series, while small providers were largely ignored during the demonstration program, physicians, home health, hospice, and durable medical equipment (DME) suppliers should be on the lookout for increased attention.  In Part II, we discussed some ways providers can prepare for and respond to an audit request.

In this Part III, we will discuss a provider’s appeal options in the event that a RAC identifies an alleged overpayment as a result of its audit.  It is important to remember that RACs are paid on a contingency fee basis and so are highly incentivized to seek out overpayment errors.

CMS’ enthusiastic trumpeting of the RAC demonstration program results seems to ignore the RACs’ reputation for overly aggressive auditing.  Indeed, a June 2010 CMS program update reveals that, when providers chose to appeal a RAC determination, providers won 64.4% of the time.  CMS has since implemented a requirement that the RAC remit its contingency fee if its audit determination is overturned at any level of appeal, not just the first level.  Whether this will improve RACs dismal win rate on appeal remains to be seen.

I.          What Are the Options to Appeal a RAC Determination of Overpayment?

First, providers that want to challenge the determination should be aware they have a  very limited period of time to file for redetermination appeal if they wish to avoid recoupment.  While a provider has 120 days to file for redetermination appeal, if they wait past day 30, the Medicare contractor (not the RAC) will initiate recoupment.  Additional information regarding recoupment is discussed below.

Appealing a RAC claims denial follows the uniform Medicare Part A and Part B appeals process.    The following deadlines are strictly adhered to.

Medicare Appeal Deadlines

Level	Stage	Reviewing Entity	Filing Deadline
1st	Redetermination	Medicare Administrative Contractor (MAC)	120 days of receiving notice of initial determination
2nd	Reconsideration	Qualified Independent Contract (QIC)	180 days of receiving notice of redetermination decision
3rd	Hearing	Administrative Law Judge (ALJ)	60 days of receipt of the QIC’s decision
4th	Administrative Review (HHS)	Medicare Appeals Council (MAC)	60 days of receipt of the ALJ’s decision
5th	Judicial Review	Federal District Court	60 days of receipt of the MAC’s decision

Our experience has shown that ALJs are honest brokers who are the most willing to hear arguments from providers.  While they will follow the law andapplicable coverage provisions, they tend to be much more thorough and consider the provider’s arguments in support of payment.  In many cases, this has been the first level that a fair and reasonable consideration of the evidence has occurred.

II.         What about Recoupment?

Notably, the deadlines above are filing deadlines only.  Medicare begins recouping funds well before the time frame for appeal has lapsed at each stage.  Medicare begins recouping funds only 30 days after the RAC’s initial determination and only 60 days after its redetermination decision.  This puts significant pressure on providers to file for first and second level appeals more rapidly than they otherwise might.  In later stages, recoupment cannot be stayed by filing the appeal.

Recoupment Timeframes
Day One – Initial Demand of a RAC Overpayment Determination	First Level Appeal	Second Level Appeal	Appeals to Administrative Law
The process begins when a Demand Letter, with appeal rights, is sent to Provider.  If there is no appeal and the provider does not remit the demanded amount, offset begins on day 41.	To avoid recoupment starting on day 41, the provider must request the 1st level appeal within 30 daysfrom the date of the Demand Letter.  If an appeal is received after day 30 and recoupment started on day 41, the recoupment process will stop on the remaining balance.	To avoid recoupment beginning or resuming after a Redetermination, the provider must submit the 2nd level appeal request to the QIC within 60 daysfrom the overpayment letter (if applicable) or from the decision letter.  If an appeal request is received after day 60, the recoupment process will stop on the remaining balance.	Limitation on recoupment ends after the 2nd level appeal.  Recoupment shall begin 30 days from the appeal decision and will continue until debt is satisfied, whether or not the provider appeals to the ALJ or subsequent levels.

Separate from and prior to the appeals process, a provider may rebut any proposed recoupment action within 15 days of the notice of impending recoupment.  A provider may issue a statement to the claims processing contractor providing evidence as to why the overpayment action should not take place.  This process does NOT provide an opportunity to review the medical documentation or the audit determination itself.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

GAO Testimony Recommends CMS Improve Enrollment, Payment, and Oversight Procedures to Prevent Medicare Fraud, Abuse, and Waste

(June 23, 2010): Yesterday we told you about recent Congressional testimony regarding the impact of health care reform on HHS enforcement efforts.   On the same day, GAO Health Care Director Kathleen M. King offered Congress testimony that made clear that the Centers for Medicare & Medicaid Services (CMS) continue to face substantial challenges to preventing Medicare and Medicaid fraud, waste, and abuse.  The GAO’s recommendations signal that home health agencies (HHAs) and suppliers of durable medical equipment (DMEs) are likely targets of future audits and that contractors require improved oversight.

King critiqued the enrollment process for prospective HHAs, saying, “We found that the screening process was not thorough.  This may have contributed to a rapid increase in the number of HHAs that billed Medicare in certain states with unusually high rates of billing patterns indicative of fraud and abuse.” (emphasis added).   Similarly, GAO found that the DME enrollment process contains persistent weaknesses.   King assessed that the effectiveness of new enrollment screening authorities provided in the Patient Protection and Affordable Care Act (PPACA) and the Health Care and Education Reconciliation Act (HCERA) “is unknown and will depend on CMS’ implementation.”

HHAs and DMEs are also identified as vulnerable services that do not receive adequate post-payment review by recovery audit contractors (RACs).  “Because RACs are paid on a contingent fee based on the dollar value of the improper payments identified, during the demonstration RACs focused on claims from inpatient hospital stays, which are generally more costly services.”  Recall that RACs are bounty hunters, explaining their limited focus on classes of high-value claims.  GAO recommends CMS direct other contractors to focus on high vulnerability items and services that RACs are known to overlook.

Next, targeting drug plan sponsors, King reminded Congress of a 2008 GAO study showing that the sponsors covering one-third of all Medicare prescription drug plan enrollees had not completely implemented CMS’ required compliance plan elements and fraud prevention measures.  Although CMS published a final rule to address this failing in April 2010, GAO continues to identify the improved oversight of drug plan sponsors and other contractors as a major need.

Ultimately, GAO offered recommendations to CMS regarding improvement of (1) enrollment screening processes, (2) pre-payment claims review, (3) post-payment claims review, (4) contractor oversight, and (5) the process for addressing identified vulnerabilities.  Regular observers will notice, however, that several of GAO’s June 2010 recommendations are virtually identical to recommendations that date back as far as September 2005 and that are not yet implemented.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

 

Counsel for HHS-OIG Discusses the Impact of Health Care Reform on Enforcement with Congress

(June 22, 2010):  In his testimony last week before the Health and Oversight Subcommittees of the House Committee on Ways and Means, Lewis Morris, Chief Counsel to the Inspector General (OIG) of Health and Human Services (HHS), emphasized the increasing speed and intensity of HHS-OIG’s multi-pronged health care fraud enforcement efforts.  Morris’ testimony reinforces the need for Medicare providers and suppliers to aggressively prepare for a knock on the door from HHS-OIG or one of its many enforcement partners.

Morris highlighted numerous new enforcement tools available under the Patient Protection and Affordable Care Act (PPACA), paying particular attention to innovations in data access and use.  These measures include consolidating and sharing data across agencies, as well as deploying new technology that allows “investigators to complete in a matter of days analysis that used to take months with traditional investigative tools.”

He further praised the enhanced accountability measures contained in PPACA, such as HHS-OIG’s ability to impose civil monetary penalties for “failing to grant [upon reasonable request] timely access to HHS-OIG for investigations, audits, or evaluations.”  Notably, PPACA Section 6408 provides for a penalty of $15,000 for each day for failure to grant access.

Morris’ testimony also reminded the health care community that:

• PPACA allows the HHS Secretary to suspend payments to providers or suppliers based on credible evidence of fraud.  At the same time, it expands the types of conduct constituting Federal health care fraud offenses under Title 18.
• HHS-OIG has improved access to information from entities directly or indirectly involved in providing medical items or services payable by any Federal program.

Perhaps most significantly:

• Medicare and Medicaid program integrity contractors (i.e., ZPICs and PSCs) are required to provide performance statistics, “including the number and amount of overpayments recovered, number of fraud referrals, and the return on investment of such activities.” (emphasis added).

 While not surprising, it is nonetheless disconcerting that ZPICs and PSCs are essentially being “graded” based on the “amount of overpayments recovered,” along with the number of enforcement actions handled and referred to law enforcement.  Based on these performance measures, is there any real difference between ZPICs and RACs?  While RACs may be compensated directly based on the amount of overpayments collected (and ZPICs are not), it is crystal clear that the government’s expectations of ZPICs are quite similar.  Now, more than ever before, it is essential that providers implement effective compliance measures to cover their practices and clinics.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

The Next “Patient” You See May be an Undercover Agent Auditing Your Practice.

(April 10, 2010): As the American Medical Association (AMA) recently reported on March 22^nd, health care providers may find themselves subjected to “Secret Shopper” audits by fellow providers hired by the government conduct reviews and investigations.

In a speech he made March 10^th, President Obama expressed interest in a proposal by Senator Tom Coburn, M.D. (R-OK) to have physicians and other health professionals go undercover and pose as patients to root out fraud. Apparently, President Obama included it among with several other Republican proposals which were considered when the recently passed Health Care Reform Bill was enacted.  Dr. Coburn tried to amend the Senate health reform bill with a provision that would direct the Department of Health and Human Services to establish a demonstration project for undercover investigations.  While a number of demonstration projects were ultimately included in the legislation, it isn’t clear if this is one of them.

Not surprisingly, the AMA has dismissed the idea of paying physicians to pretend to be patients in an effort to smoke out criminal activity.  As the AMA responded:

“The AMA has zero tolerance for health fraud, but there’s no evidence that the undercover-patient tactic would be effective or efficient in finding fraud. . . We are partnering with HHS and the Justice Dept. to address fraud, and we strongly recommend the government target areas where fraud occurs most, instead of wasting physician time that could be better spent caring for real patients.” (AMA President J. James Rohack, M.D.)

Notably, “Secret Shopper” audits and investigations are nothing new.  Both HHS and DOJ have used individuals posing as patients or employees in investigations for as long as health care fraud has been prosecuted by the government.

From a compliance standpoint, this could present a number of additional risks, not normally encountered in a standard billing and coding audit.  This could implicate a variety of E/M related issues.  Moreover, this may raise quality of care issues not otherwise covered in a routine audit.  To limit your potential liability, you should work with legal counsel to develop, implement and follow an effective Compliance Plan.

Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other health lawyers at: 1 (800) 475-1906.

A Look at the Opposition – For AdvanceMed, it’s Not Personal, it’s Just Business — Big Business . . .

(March 26, 2010): Overview:  Over the next few days, we will be publishing a brief overview of specific Zone Program Integrity Contractors (ZPICs) – the companies who have been hired by CMS to conduct the medical reviews of Part A and Part B health care providers around the country.  As we have previously discussed, over the last year, ZPICs have been taking over where Program Safeguard Contractors (PSCs) left off.  While our firm is still handling a number of cases that were initiated by PSCs, all of our recent cases have involved ZPICs.

As PSCs and ZPICs have been so quick to point out, they are not paid a percentage of the Medicare overpayments identified like their fellow medical reviewers – Recovery Audit Contractors (RACs).  Nevertheless, as you will soon see, they are handsomely paid for their efforts, albeit in a different fashion than are RACs.

It is essential to keep in mind that both RACs and ZPICs are designed to “find and prevent waste, fraud and abuse in Medicare.” Further, like their RAC cousins, ZPICs look at billing trends and patterns, focusing on providers whose billings for Medicare services are higher than the majority of providers in the community (e.g. their peers).

I.     Where is AdvanceMed Currently Operating?

Initially, AdvanceMed Corporation was awarded a $107,957,737.00 five-year contract to handle the ZPIC duties for Zone 5.   Zone 5 covers the states of Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, and West Virginia.  Yes, you read this correctly, AdvanceMed is being paid over $100 million.

As the ZPIC for Zone 5, AdvanceMed assumed the Benefit Integrity functions for Medicare Parts A, B, Durable Medical Equipment, and Home Health and Hospice, as well as establishing a Medicare / Medicaid (Medi-Medi) data matching program for each state within the Zone.

The AdvanceMed Zone 5 ZPIC contract performs the following functions for CMS as a ZPIC:

• Medicare fraud investigation and prevention, including referrals to law enforcement;
• Medicare data analysis (discovery, detection, investigation, and overpayment projection);
• Medical Review to support fraud case development, including coverage and coding determinations;
• Reviewing audit, settlement, and reimbursement of cost reports, and conducting specified audits;
• IT Systems for case and decision tracking and data warehousing;
• Interface with the Medicare contractors, the medical community (outreach & education), and law enforcement; and
• Medicare/Medicaid data matching program safeguards work for each state in Zone 5.

II.      AdvanceMed’s Extrapolations of Alleged Damages:

Over the years, we have gone up against AdvanceMed numerous times, challenging their interpretation of LMRPs / LCDs and assessing the methods they utilized to engage in a statistical extrapolation of the alleged damages in our client’s cases.  To give the company its due – their statistical experts are smart, aggressive and do not hesitate to respond when their methods have been challenged.  We like that – it keeps us sharp.

With the help of some of the best statisticians in the country (including, but not limited to the late Will Yancey, Ph.D.), in  a number of cases, we have been able to show that their extrapolation of damages (and that of other PSCs and ZPICs) has not complied with applicable requirements, and is therefore invalid.  To be fair, every extrapolation is different, both in terms of facts, the methodology employed, and in the associated calculations conducted.  As attorneys, we work with our experts to break down and assess AdvanceMed’s (and other ZPICs) calculations.  Perhaps they handled it appropriately – or maybe they didn’t.  There really isn’t any way to know if it was handled properly without a complete copy of their file (including associated work papers and calculations) so that we can fully assess their actions.

Over the last year, we have seen a marked increase in contractor (e.g. PSC and ZPIC) participation (as “participants” not as “parties”)  in ALJ hearings.  Their experts have consistently been professional, concise and ready to answer any questions posed by the ALJ.  Our recommendation – both counsel and their defense expert better be prepared.  It’s never to early to start thinking about how to best contest the extrapolation that has been conducted.  As a final point, we are aware of a number of instances where a  provider (or their representative) has chosen to ignore the extrapolation as a contestable issue.  In other words, they just accept the extrapolation as a foregone conclusion and focus solely on the claims.  We respectfully disagree with that approach.  If we identify deficiencies with the extrapolation, we aggressively challenge its application.

III.      AdvanceMed’s Medical Reviews:

Once a provider has been identified as an outlier (or identified as a possible problem through a variety of other mechanisms), a medical review of their claims is often conducted by a ZPIC, such as AdvanceMed.

A number of year ago, Kevin Gerold, CMS’ former Acting Deputy Director for Program Integrity was quoted as saying that the agency had revamped its approach to claims processing in an effort to better “grasp the experience of the patient encounter.” Mr. Gerold was further quoted as saying that CMS was going to “let medical reviewers assess a claim’s legitimacy based on the big picture of the patient encounter, not on a nit-picking slavery to perfect documentation.” Unfortunately, in our humble opinion, AdvanceMed’s medical reviews have conducted have been extremely technical — resulting in the denial of many claims based on minor omissions, technical deficiencies and / or the contractors’ own peculiar spin regarding the application of an LCD.

In responding to AdvanceMed’s reasons for denial, it is essential that you obtain each and every reference relied upon by the contractor when denying the claims at issue.  We have identified multiple instances where a Medicare contractor (not necessarily AdvanceMed) attempted to apply an LCD retroactively.  Moreover, it is important to examine the underlying statutory authority to determine whether the contractor’s interpretation of a coverage provision is consistent with the underlying law or regulation.  Finally, it isn’t enough to merely “poke holes” in AdvanceMed’s reasons for denial – we like to go one step further – show that the particular claims at issue do, in fact, qualify for coverage and payment.

IV.       Conclusion:

The bottom line is simple — if you are audited by AdvanceMed, your Medicare claims will be scrutized as never before.  While we often disagree with AdvanceMed’s findings, we have consistently found them to be professional in their dealings and consistent in their arguments.  Regardless of whether or not you ultimately choose to be represented by our law firm, we strongly recommend that you seek legal representation if your practice or clinic is audited by AdvanceMed.

Our attorneys have years of experience representing Medicare providers in connection with post-payment audits and other administrative actions taken by ZPICs, PSCs and other Medicare contractors.  Should you have any questions regarding these issues, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.