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Revocation of Your Medicare Billing Privileges.

Revocation of Your Medicare Billing Privileges

The revocation of your Medicare billing privileges can subject your practice to financial ruin!

(December 14, 2017):  The Centers for Medicare and Medicaid Services (CMS) has engaged various types of outside contracting entities to perform program integrity functions on behalf of the Medicare program.  At the present time, Uniform Program Integrity Contractors (UPICs) and Zone Program Integrity Contractors (ZPICs) are very aggressive when it comes to referring evidence of potential fraud to federal law enforcement agencies, primarily the Department of Health and Human Services, Office of Inspector General (HHS-OIG) and the U.S. Department of Justice (DOJ).  In matters where fraud is not apparent but it appears that other improper conduct has occurred, UPICs and ZPICs are actively recommending to CMS that adverse administrative actions (such as the revocation of your Medicare billing privileges), be taken.  As the General Accounting Office (GAO) noted in its August 2017 report entitled “CMS Fraud Prevention System Uses Claims Analysis to Address Fraud,  the administrative actions[1] recommended by these program integrity contractors typically range from prepayment review to revocation.[2]

 

I. Background:

To participate in the Medicare program, a provider must typically complete either a CMS-855A, CMS-855B, CMS-855I or CMS-855S[3] enrollment application, each of which requires that the provider disclose their practice or office address.[4] Notably, a provider may also  provide documentation of its “practice location” with its enrollment application.[5] Once a provider has enrolled in the Medicare program, any changes to the provider’s enrollment information must be reported within a strict timeframe.  For example, a change in practice location must be reported within 30 days.[6]

Among their various duties, Medicare Administrative Contractors (MACs), UPICs and ZPICs are required to periodically perform site visits in order to verify that a provider is operational, that the provider’s enrollment information is accurate, and that the provider is in compliance with applicable Medicare enrollment requirements.[7] To accomplish this, the CMS contractor will normally inspect the  “qualified physical practice location” given by the provider or supplier that is currently in file with the MAC. See, e.g., JIB Enterprises, LLC, DAB CR3010, at 9 (2013).

II. Failure to Meet Provider Requirement to Maintain Active Enrollment Status:

Over the past year, our firm has represented more physicians, home health agencies and other providers than ever before in challenging proposed Medicare revocation actions.  As we indicated in an article on ZPIC audits last March, program integrity contractors are aggressively conducting site visits of enrolled providers. Approximately one-third of these revocation actions have been based on a Medicare contractor’s assertion that they were unable to verify a provider’s operational status. In many cases, this has occurred because a provider has moved its office or clinic without properly reporting the relocation to Medicare in a timely manner. GAO’s December 2017 report on the status of CMS fraud efforts illustrates how frequently this particular category of revocation action has been occurring. As GAO noted with respect to Florida:

“According to a 2016 report, from July 1, 2015, through September 30, 2016, a contractor covering Florida had conducted 9,891 site visits to verify providers’ and suppliers’ operational status, deactivated 422 practice locations, and revoked or denied 1,157 providers.[8]

III.  What Occurs if a Medicare Contractor Believes that a Provider is Not Operational?

What does it mean for a provider’s practice or office to be “operational”?  As set out under 42 C.F.R. § 424.502, the term operational:

“means the provider or supplier has a qualified physical practice location, is open to the public for the purpose of providing health care related services, is prepared to submit valid Medicare claims, and is properly staffed, equipped, and stocked (as applicable, based on the type of facility or organization, provider or supplier specialty, or the services or items being rendered), to furnish these items or services.”

Therefore, if a UPIC or ZPIC were to visit the location of your practice (as then listed in Medicare’s records) and were to find that the practice or office were closed, the contractor would likely take the position that your organization is not operational.

Neither UPICs nor ZPICs exercise independent authority to issue a revocation letter or otherwise revoke your Medicare billing privileges.  These contractors must first obtain prior approval from CMS’ Provider Enrollment & Oversight Group (PEOG).  When seeking approval to initiate a revocation action, the contractor is required to cite the specific regulatory basis upon which this adverse action is being based.  In most cases, obtaining CMS approval to initiate a revocation action is a perfunctory step in the process. Once approval is obtained, the provider’s Medicare billing privileges are normally revoked, retroactive to the date that the CMS contractor determined that the provider was not operational.[9]  As set out in the Federal Register:

“Moreover, we maintain that when CMS or our contractor determines that a provider or supplier, including a DMEPOS supplier, is no longer operating at the practice location provided to Medicare on a paper or electronic Medicare enrollment application that the revocation should be effective with the date that CMS or our contractor determines that the provider or supplier is no longer operating at the practice location.”[10]

ANon-Operational Due to Change in Location Without Proper Notice.

 We have handled practically every permutation of this scenario that you can imagine.  The most common facts have involved a provider or supplier who moved offices and failed to notify their MAC.  As luck would have it, a UPIC or ZPIC contractor conducted a site visit, found that the practice location on file was closed or empty, and concluded that it was not operational.  The contractor then recommended to CMS that a revocation action be pursued.

In several instances, the provider and / or the provider’s office manager was willing to swear that written notice of the change in location was, in fact, sent to the MAC.  Unfortunately, unless the provider can provide proof that notice was given by Certified Mail, Return Receipt Requested or other trackable mail service, these cases have been an uphill battle in the administrative appeals process.

In other cases, a provider has been able to show that written notice was given, in a timely fashion, to state regulatory authorities.  In at least one case, a provider argued that the MAC was provided proper notice through the Cost Report process.  Unfortunately, proof of such notice was not provided to the Administrative Law Judge so no ruling as to adequacy was issued.

The bottom line with respect to notice is fairly straight forward, timely notice of a change in practice location must be provided to the MAC, on the proper form and within the proscribed time limits.  Moreover, as with all communications to a CMS contractor, it is imperative that proof of submission and receipt be maintained.

B.  Non-Operational Due to Closed or Non-Staffed at the Time of the Site Visit.

From a practical standpoint, a provider doesn’t necessarily have to change its practice or office location to be found non-operational.  We have handled multiple cases where a ZPIC contractor conducted a site visit at the provider’s address listed on the CMS-855, but for one reason or another, the office was locked and was not staffed at the time of the visit, thereby giving rise to a revocation action.

IV.  A Look at the Regulatory Bases for Revocation:

As reflected under 42 CFR §424.535(a)(1)-(14), there are fourteen regulatory bases for revocation that may be relied upon by the government.  This article focuses on only one of these reasons for revocation – a provider’s failure to notify Medicare of a change in its practice location.  Notably, there are several regulatory bases that may be cited when revoking a provider’s billing privileges for this infraction, each of which are briefly discussed below.

A.  42 C.F.R. §424.535(a)(1), “Non-Compliance.”

Under 42 C.F.R. §424.535(a)(1), a revocation may be pursued if:

“The provider or supplier is determined to not be in compliance with the enrollment requirements described in this subpart P or in the enrollment application applicable for its provider or supplier type, and has not submitted a plan of corrective action as outlined in part 488 of this chapter. The provider or supplier may also be determined not to be in compliance if it has failed to pay any user fees as assessed under part 488 of this chapter.

(i) CMS may request additional documentation from the provider or supplier to determine compliance if adverse information is received or otherwise found concerning the provider or supplier.

(ii) Requested additional documentation must be submitted within 60 calendar days of request.”

Under this basis for revocation, CMS or one of its contractors typically alleges that a provider has violated an enrollment requirement listed on the enrollment application or currently in Medicare’s electronic records system.  Although most revocation actions pursued under this regulatory provision are based on a licensure-related violation, the scope of the provision is broad enough to cover situations where a provider has failed to meet its obligations to report a change in practice location in a timely fashion.

B.  42 C.F.R. §424.535(a)(5), “On-Site Review.”

Under 42 C.F.R. §424.535(a)(5), a revocation action may be pursued if:

“Upon on-site review or other reliable evidence, CMS determines that the provider or supplier is either of the following:

 (i) No longer operational to furnish Medicare-covered items or services.

(ii) Otherwise fails to satisfy any Medicare enrollment requirement.”

As previously indicated, both CMS contractors are actively conducting site-visits of Medicare providers and suppliers in an efforts to better ensure the program integrity of the Medicare Trust Fund.  These site-visits are expected to intensify, not subside in 2018.  It is therefore essential that you understand your obligations under the regulations to qualify as an “operational” entity and to properly notify Medicare of any changes to your enrollment status.

C.  42 C.F.R. §424.535(a)(9), “Failure to Report.”

Under 42 C.F.R. §424.535(a)(9) a revocation action may be pursued if:

The provider or supplier did not comply with the reporting requirements specified in § 424.516(d)(1)(ii) and (iii) of this subpart.”

As 42 C.F.R. §516(d)(1)(ii) and (iii) describes, physicians, nonphysician practitioners, and their organizations must report any adverse legal action or change in practice location to their Medicare contractor within 30 days. If a provider that has failed to meet this reporting requirement is subject to having their Medicare billing privileges revoked under 42 C.F.R. §424.535(a)(9).

V.  Impact of a Medicare Revocation Action:

Simply put, if your Medicare billing privileges are revoked, you will be barred from participating in the Medicare program from the date of the revocation until the end of the re-enrollment bar that has been identified in the revocation letter.  The re-enrollment bar lasts from 1 – 3 years. [11]  The length of the re-enrollment bar depends on the severity of the reason for the underlying revocation. The re-enrollment period begins 30 days after the provider receives the notice of revocation letter from CMS.

Under 15.1.1 of the MPIM, the definition of the term “Final Adverse Action” includes a Medicare-imposed revocation of any Medicare billing privileges.”  More than likely, each of your private payor participating agreements includes a requirement that you notify the payor within 30 days of any adverse action.  If for some reason your particular contract does not include this requirement, it is important to remember that all licensing boards, payors and hospitals have access to the NPDB and regularly submit queries on their staff or licensees.  Depending on the reason for revocation, these organization may choose to pursue a reciprocal action.

VI.  Appealing a Medicare Revocation Action:

As reflected in Section IV above, the business impact of a revocation action on your practice can be devastating.  If you are facing a revocation action, we strongly recommend that you engage experienced health law counsel to represent you in the process. Unlike the traditional Medicare administrative appeals process, the Medicare revocation appeals process has abbreviated timeframes and is highly restrictive with respect to the introduction of evidence and arguments.  Having said that, our attorneys have been very successful in working directly with CMS to resolve many of these revocation actions to the satisfaction of our clients and achieve a result that likely would be unavailable through the traditional revocation appeals process.

Generally, the Medicare revocation appeals process is set out under 42 C.F.R. § 405.803, “Appeal Rights.” As this provision outlines, a provider is entitled to challenge the revocation of its Medicare billing privileges an may appeal an initial determination made by CMS or its contractor by following the procedures specified in Chapter 498.  A brief overview of these provisions is outlined below:

Preliminary Appeal Determination: Can We File a Corrective Action Plan (CAP)?  In limited circumstances, if a provider’s Medicare billing number has been revoked, it may be afforded an opportunity by CMS to take remedial action to correct the deficiencies that were the basis for the revocation action.   After the effectuation of the December 2014 Final Rule, only provider’s whose Medicare billing privileges have been revoked due to non-compliance under 42 CFR 424.535(a)(1) are entitled to submit a CAP. The other thirteen regulatory bases for revocation are not eligible for CAP remediation.  To the extent that your revocation action falls within category, the CAP must be submitted within 30 days of the date of the revocation notice and must provide evidence that the provider is now in full compliance with its applicable obligations.  If the provider can demonstrate compliance, CMS will reinstate the provider’s billing privileges.  If the CAP is denied, the provider can still exercise its appeal rights under Part 498.  Importantly, the submission of a CAP does not “stay” your appeal deadlines.  More than likely, you will therefore pursue a dual-track approach is challenging the revocation action.

Appeal Level I:  Reconsideration.  The first level of appeal for a provider to contest the evocation of its Medicare billing privileges is known as the “Reconsideration” level. A reconsideration request must be submitted within 60 days from receipt of the notice of initial determination. Take care, some appeals will be filed with the CMS-PEOG while others must be filed with MAC. Any documentary evidence a provider wants considered by the hearing officer assigned to their case must be submitted at this level of appeal. If a provider later wants to submit documentary evidence into the record, an Administrative Law Judge (ALJ) will require that the provider show “Good Cause” exists for the late submission of the evidence. “Good Cause” is rarely found to exist absent evidence of an Act of God that prevented earlier submission.

Appeal Level II: Administrative Law Judge (ALJ) Hearing. Should you not prevail at the reconsideration level of appeal, you can seek a hearing before an ALJ of the HHS Departmental Appeals Board, Civil Remedies Division. Requests for an ALJ hearing must be submitted within 60 days from the date of the reconsideration decision.  The ALJ hearing is like a “mini-trial.”  The government will be represented by an attorney assigned by your HHS Regional Office of General Counsel.  If the facts in the case are contested, both sides will typically submit briefs, introduce evidence and present witness and / or expert testimony.  If both sides agree as to the basic facts in the case, the ALJ will often issue his / her ruling based on the written record.

Appeal Level III: Departmental Appeals Board (DAB) Hearing.   Both the provider and CMS may contest a decision of the ALJ. Should a party choose to do so, they must request review of the ALJ’s decision by the Departmental Appeals Board, Appellate Division within 60 days of the date of the ALJ’s decision.  Importantly, this is the end of the proverbial line administratively.  If a provider is dissatisfied with the DAB’s ruling, it must seek judicial review.

Appeal Level IV:  Judicial Review  If a provider wishes to challenge the decision of the DAB, it must file a civil action in U.S. District Court within 60 days of the date of the DAB decision.  If a provider can show “Good Cause,” the DAB is permitted to extend the civil action filing deadline.

VII.  Conclusion:

The revocation of a provider’s Medicare billing number often comes as a shock.  It is never expected and few providers are prepared to effectively respond to the challenges presented by the hyper-strict requirements of the revocation appeals process.  It is important to keep in mind that the appeals process isn’t meant to provide a level playing field for a provider to argue its case.  Unfortunately, the rules are skewed in favor of CMS from the very start.  It is therefore essential that you take steps to challenge the revocation of your Medicare billing privileges.  Unless you are skilled in responding to these types of adverse actions, it is likely in your best interests to engaged experienced health law counsel.

Healthcare AtorneyRobert W. Liles, J.D., M.B.A., M.S., is a former Federal prosecutor and an experienced health lawyer.  Robert and the other lawyers at Liles Parker, PLLC, represent health care providers and suppliers around the country in connection with Medicare revocation actions.  If you or your practice have been had their Medicare billing privileges revoked, please give Robert a call for a complimentary consultation:  Please call:  1 (800) 475-1906.    

 

[1] Importantly, this list of administrative adverse actions is not all-inclusive.  For instance, as set out in Section 4.19.2.2 of the Medicare Program Integrity Manual (MPIM), UPICs and ZPICs are also required to  review and evaluate cases to determine if they warrant exclusion action.  If so, they are to make a recommendation to OIG for exclusion. One of the examples cases suitable for exclusion listed in the MPIM includes:

“Providers who are the subject of prepayment review for an extended period of time (longer than 6 months) who have not corrected their pattern of practice after receiving educational/warning letters.”

[2] As defined under 15.1.1 of the MPIM, the term “Revocation” means that the provider or supplier’s billing privileges are terminated.

[3] CMS-855A – Medicare Enrollment Application for Institutional Providers; CMS-855B – Medicare Enrollment Application for Clinics, Group Practices, and Certain Other Suppliers; CMS-855I – Medicare Enrollment Application for Physicians and Non-Physician Practitioners; CMS-855S – for DME suppliers.

[4] 42 C.F.R. § 424.510(a).

[5] 42 C.F.R. § 424.510(d)(2)(ii).

[6] See 42 C.F.R. § 424.516(d)(1)(iii).

[7] 42 C.F.R. §§ 424.510(d)(8), 424.515(c), 424.517(a).

[8] GAO-18-88. “CMS Needs to Fully Align Its Antifraud Efforts with the Fraud Risk Framework,” December 2017.  See footnote 62.

[9]42 C.F.R. §§ 405.800(b)(2); 424.535(a)(5)(i), (g).

[10] 73 Fed. Reg. 69,725, 69,865 (Nov. 18, 2008) (emphasis added).

[11] 42 CFR §424.535(c)

[12] If a revocation actions is based on an “Abuse of Billing Privileges” under 42 CFR 424.535(a)(8), the initial level of appeal (Reconsideration) will be filed directly with CMS rather than with the provider’s MAC.

Indiana Opioid Prescribing Guidelines–Eff. July 1, 2017.

Indiana Opioid Prescribing(June 29, 2017):  Deaths resulting from a drug overdose have grown considerably in recent years.  The results of a study published in “Morbidity and Mortality Weekly Report”  by the Centers for Disease Control and Prevention (CDC) found that 63.1% of the overdose-related deaths in 2015 involved opioids. Notably, this was a significant increase from the 60.9% figure recorded in 2014.[1] The CDC has noted that overdoses from prescription opioids have been a “driving problem” contributing to this problem.[2]  In an effort to further address the opioid overdose crisis, in March 2016, the CDC published “CDC Guideline for Prescribing Opioids for Chronic Pain – United States, 2016.” [3] Many states have also taken affirmative steps to ensure that their licensed prescribers of opioids are taking additional steps to safeguard both their patients and the public (from the illegal diversion of prescription drugs). Indiana has recently passed legislation in this regard.  This article examines the actions that the Indiana opioid prescribing requirements that have recently been implemented to protect the citizens of its state from opioid-related drug death.

I. Recent Legislative Action Taken to Address Indiana Opioid Prescribing Practices:

On April 26, 2017, Indiana Governor Eric Holcomb signed Senate Enrolled Act 226 (SEA 226) into law.  Notably, this legislation followed similar restrictive measures taken in neighboring Ohio[4] and Kentucky[5] to require that their state professional licensing boards act to ensure that licensees qualified to prescribe opioids were doing so in a manner that is consistent with the CDC’s March 2016 guideline.

II. Overview of Indiana Opioid Prescribing Requirements:

The provisions of SEA 226 have been codified as a new chapter to the Indiana Code and is effective on July 1, 2017.  The new chapter is Chapter 9.7 Prescribing and Dispensing of Opioids.   As Sec. 1 of Chapter 9.7 provides, the term “prescriber” refers to a practitioner who maintains an Indiana controlled substance registration AND a federal Drug Enforcement Administration registration.

Except as provided under Sec. 2(b), an Indiana qualified prescriber may only issue a prescription for an opioid if the following requirements under Sec. 2(a) are met:

“(1) If the prescription is for an adult who is being prescribed an opioid for the first time by the prescriber, the initial prescription may not exceed a seven (7) day supply.

(2) If the prescription is for a child who is less than eighteen (18) years of age, the prescription may not exceed a seven (7) day supply.”

Notably, the restrictions set out under Sec. 2(a) above do not apply if one of the following circumstances outlined under Sec. 2(b)(1) or (2) is met:

“(1) The prescriber is issuing the prescription for the treatment or provision of any of the following:

(A) Cancer.
(B) Palliative care.
(C) Medication-assisted treatment for a substance use disorder.
(D) A condition that is adopted by rule by the medical licensing board under IC 25-22.5-13-8 to be necessary to be exempted from subsection (a).

(2) If, in the professional judgment of a prescriber, a patient requires more than the prescription limitations specified in subsection (a).”

As the code provisions further reflect, an Indiana prescriber must take care whenever issuing a prescription under the exceptions discussed above in Sec. 2(b)(1) and Sec. 2(b)(2).  Under the provisions of Sec.2(c), if a prescriber:

“(1) determines that a drug other than an opioid is not appropriate; and

(2) uses an exemption specified in subsection (b)(1)(B) or (b)(2) and issues a prescription for a patient that exceeds the limitations set forth in subsection (a);”

The prescriber is required to carefully document in the patient’s medical record the reasons(s) why a drug other than an opiate was not appropriate in the care and treatment of a particular patient.  Additionally, the prescriber must document that the patient is receiving palliative care or that the decision is based on the prescriber’s professional judgment that the exemption is reasonable and appropriate.

An interesting component of the Indiana opioid prescribing requirements is that a prescriber is obligated, if requested by a patient, the patient’s legal representative or guardian, to issue an opioid prescription for a lesser amount that the prescriber initially intended to prescribe.  The prescriber must also document in the patient’s medical records that such a request was made and who made it.

III. Conclusion:

Physicians, nurse practitioners and physician assistants authorized to prescribe controlled substances (especially opioids) need to review both the CDC guidance and any state requirements that have been issued to protect both patients and the public from abuse and diversion.  Your prescribing practices are continuously being monitored by Medicare, Medicaid and private payors.  You should monitor and audit your practices as part of your overall Compliance Program. To the extent that your prescribing practices are different from those of your peers, there is a significant likelihood in today’s enforcement environment that you will be audited.

Should you receive an audit request from a NBI MEDIC, UPIC or ZPIC we strongly recommend that you contract a qualified health lawyer to advise you regarding the records submission and appeals process.  This initial level of the audit is a provider’s best opportunity to present his / her arguments in support of payment in a positive light.

Indiana Opioid PrescribingRobert W. Liles is Managing Partner at the health law firm, Liles Parker, PLLC.  With offices in Washington, DC, Houston, TX, and Baton Rouge, LA, our attorneys represent pain management physicians and practices around the country in connection with Medicare / Medicaid audits, Compliance Plan reviews and state peer review actions.  Should you have any questions, please call us for a free consultation.  Robert can be reached at: 1 (800) 475-1906.  

[1] Rudd RA, Seth P, David F, Scholl L. Increases in Drug and Opioid-Involved Overdose Deaths — United States, 2010–2015. MMWR Morb Mortal Wkly Rep. ePub: 16 December 2016. DOI: http://dx.doi.org/10.15585/mmwr.mm6550e1

[2].https://www.cdc.gov/drugoverdose/epidemic/index.html

[3] Dowell D, Haegerich TM, Chou R. CDC Guideline for Prescribing Opioids for Chronic Pain — United States, 2016. MMWR Recomm Rep. 2016;65:1-49. http://dx.doi.org/10.15585/mmwr.rr6501e1.

[4]State of Ohio, Board of Pharmacy.  “FAQ: New Limits on Prescription Opiates for Acute Pain, Updated 4/3/2017.” http://www.pharmacy.ohio.gov/Documents/Pubs/Special/ControlledSubstances/New%20Limits%20on%20Prescription%20Opiates%20for%20Acute%20Pain%20-%20Frequently%20Asked%20Questions.pdf

[5] See Kentucky House Bill 333 http://www.lrc.ky.gov/recorddocuments/bill/17RS/HB333/bill.pdf

[6] HHS OIG. “High Part D Spending on Opioids and Substantial Growth in Compounded Drugs Raise Concerns” (OEI-02-16-00290)(Page 4). 6/21/2016. https://oig.hhs.gov/oei/reports/oei-02-16-00290.pdf

[7] Lembke A, Chen J. Use of Opioid Agonist Therapy for Medicare Patients in 2013. JAMA Psychiatry. 2016; 73(9): 990-992.

[8] Ghate SR, Haroutiunian S, Winslow R, McAdam-Marx C. Cost and comorbidities associated with opioid abuse in managed care and Medicaid patients in the United States: a comparison of two recently published studies. Journal of Pain & Palliative Care Pharmacotherapy. 2010 Sep; 24(3): 251-8.

Private Insurance Payors are Aggressively Conducting Acupuncture Audits

Acupuncture Audits(May 26, 2017):  Over the past decade, the number of patients utilizing one or more complimentary or alternative care modalities has steadily increased.  As patient demand for such services has grown, the percentage of payors including acupuncture in their plans as a covered service has also increased. For over a decade now, most private payor plans have covered acupuncture services (although the number and frequency of covered treatments is often limited).  While private payors have often included acupuncture as a covered service, traditional Medicare has continued to take the position that acupuncture services are not a covered benefit.  The purpose of this article is to provide an overview of the audit and investigative landscape currently facing acupuncturists around the country.

 I.     Private Insurance Acupuncture Audits:

Many private payors have readily agreed to include acupuncture as a covered benefit in their insurance plans.  Unfortunately, practically none of these payors have issued guidance outlining what needs to be shown in order for acupuncture services to qualify for coverage and payment.  Recent private payor acupuncture audits of the services billed have often resulted in claims denials based on the following:

  • Medical Necessity. A number of payor plans have effectively conflated “medical necessity” and “coverage.”  As a result, a beneficiary’s plan may take the position that acupuncture is only medically necessary for a limited number of medical and / or mental (such as depression) conditions.  Frankly, what the payor is really saying is that it will only provide coverage for acupuncture services if the underlying condition fits within one of these categories.  To the extent that a licensed acupuncturist determines that acupuncture services would benefit, and is, in fact, medically necessary in the treatment of a patient suffering from a non-covered condition is often immaterial to a payor’s decision of whether it will cover the services.
  • Documentation. At the outset, it is essential to keep in mind that it is highly unlikely that the medical reviewer (typically a nurse) assigned to audit your acupuncture claims will have practical experience and knowledge with acupuncture care and treatment services.  As a result, the medical reviewer has virtually no idea what to look for when assessing your documentation.  This problem is further compounded by the fact that most payors have not detailed their documentation expectations in their provider manuals.  Medical reviewers evaluating your documentation of acupuncture services are therefore free to exercise a high degree of discretion when auditing your records.  What can you do to better document your services?  As a first step, you need to ensure that your documentation practices fully comply with any requirements set out by your State Board of Acupuncture Examiners.[1] Next, check out the provider manual, website and any other guidance issued by a particular payor.  Does it provide specific guidance regarding medical necessity, coverage, documentation, billing and / or coding of acupuncture services?  If so, be sure and comply with the payor’s requirements. Finally, you need to ensure that your documentation practices meet industry standards.
  • Can an Acupuncturist Bill E/M Services? The answer to this question varies from state to state and from private payor to private payor.  For example, using Texas as an example, the Texas State Board of Acupuncture Examiners (Texas Board) has expressly addressed this issue.[2]  Importantly, the Texas Board has stated that the mere use of E/M codes by a licensed acupuncturist “is not fraudulent per se and will not automatically subject licensees to discipline.” In fact, the Texas Board notes that utilization of E/M codes qualify within an acupuncturist’s scope of practice.  Nevertheless, the Texas Board takes no position on whether E/M codes utilized by a licensed acupuncturist may be properly billed to a payor.  Whether or not an insurance company chooses to cover and pay for these types of services is completely up to the payor.  Please keep in mind that a private payor may change its policy regarding the use of E/M codes by non-physician health care professionals at any time.  For instance, in December 2016, UnitedHealthcare Community Plan issued a policy revision stating that it would no longer reimburse E/M codes billed by opticians, surgical technicians, naturopaths and massage therapists.  However, the payor’s policy revision did not include acupuncturists in its list.  As UnitedHealthcare later clarified, Since acupuncturists were not included in the policy revision that occurred in December 2016, E/M codes billed by acupuncturists have not been and will not be denied under the Nonphysician Health Care Professionals Billing Evaluation and Management Codes Policy.”[3]
  • Can an Acupuncturist Bill for E/M Services Provided on the Same Day as Acupuncture Treatment Services? While a number of private payors have chosen to cover E/M services that are properly performed and documented by acupuncturists, you should expect considerable scrutiny if you perform and bill for acupuncture treatment performed on the same date of service as an E/M service. In order to properly bill a separate E/M service, you will need to document that the service went above and beyond the brief assessment that is already expected to be performed as part of the acupuncture treatment. The separate billing of an E/M service and acupuncture treatment on the same date of service would likely only occur on an infrequent basis.  If you are billing these codes on regular basis, we recommend that you carefully review your practices to ensure that the services billed are both medically necessary and warranted in light of the patient’s clinical profile.
  • How is an Acupuncturist Supposed to Bill Units Based on Time? Most private payors require that acupuncture services be billed using one of the following four AMA CPT codes:
    • 97810 (acupuncture, 1 or more needles; without electrical stimulation, Initial 15 minutes of personal one-on-one contact with the patient).

    • 97811 (acupuncture, 1 or more needles; without electrical stimulation, for each additional 15 minutes of personal one-on-one contact with the patient, with reinsertion of needles)

    • 97813 (acupuncture, 1 or more needles; with electrical stimulation, initial 15 minutes of personal one-on-one contact with the patient).

    • 97814 (acupuncture, 1 or more needles; with electrical stimulation, for each additional 15 minutes of personal one-on-one contact with the patient, with reinsertion of needles)

Seems straight forward?  Unfortunately, sometimes it feels like nothing is straight forward when it comes to the coding and billing of acupuncture services. For instance, how many units should be billed if 10 needles are inserted into a patient and retained for 30 minutes?  How many units (and which units) should be billed?  It depends on whether the needles were removed and new needles were reinserted into the patient.

For instance, if the 10 needles originally inserted into the patient remained in the patient for 30 minutes, only one unit of CPT code 97810 can be billed.  Many payors take the position that once the needles are inserted, no additional work is required and one-on-one contact is no longer required.  This remains the case even if an acupuncturist periodically returns to stimulate the needles.  Absent the removal and reinsertion of new needles, no additional units can be billed.

What is meant by the term “one-on-one contact with the patient.”?  This phrase has been interpreted to mean that the acupuncturist is in the room with the patient and is performing a medically necessary activity that is a component of acupuncture.  When calculating the initial 15 minutes, Excellus BCBS permits the inclusion of many preliminary activities.  These include, but are not limited to a review of the patient’s chart, greeting the patient, obtaining an account of the results of the previous treatment, palpation of a patient’s tender points, marking and cleaning insertion sites, inserting needles, and removing needles.[4]

When billing a private payor, it is important that you first determine how the particular payor interprets these coding requirements.  You should not assume that every payor strictly follows the general approach taken expressed in the AMA CPT Codebook.

Perhaps most importantly, when billing time-based units it is imperative that you the total personal contact time spent performing the medically necessary components outlined above and document this time in the treatment note. While many providers disagree with their approach, a number of private payors are actively contesting claims where it appears that an acupuncturist has billed units based on needle retention time rather than active, personal, one-on-one contact involving the provision of substantive acupuncture-related services.

II.     Acupuncture Audits of Services Billed to Federal Health Benefit Programs:

As noted earlier, traditional Medicare does not cover acupuncture services.  As a result, you may initially conclude that contractors working for the Centers for Medicare and Medicaid Services (CMS), such as Zone Program Integrity Contractors (ZPICs) and Medicare Administrative Contractors (MACs) would have little interest in auditing practitioners of such services.  As we have repeatedly seen, such a conclusion would be wrong.

(A) What is Medical Acupuncture?

A number of licensed physicians, podiatrists and dentists around the country have also been trained to provide acupuncture treatment services.  These physicians often employ traditional medical care and supplement this approach with acupuncture treatment services. The care they provide is sometimes referred to as “Medical Acupuncture.”  Many of these medical practitioners are members of the American Academy of Medical Acupuncture[5] (AAMA).  In order to qualify as a “full member” in the AAMA, an applicant must:

  • Be an active, licensed MD, DOs, DPM or DDS in the United States or Canada;

  • Be engaged in the practice of medical acupuncture.

  • Have completed a minimum of 220 hours of formal training in Medical Acupuncture (120 hours didactic, 100 hours clinical), or the equivalent, in an educational program acceptable to the Membership Committee;

Even though an individual may qualify as a member of the AAMA, he / she must also meet state licensure requirements mandated by a state’s Board of Acupuncture Examiners.

(B) E/M Services Conducted by Medical Acupuncturists are Often Misunderstood by CMS Contractors.

ZPIC claims audits of licensed physicians providing Medical Acupuncture services have been typically focused on the accompanying Evaluation and Management (E/M) claims performed prior to, and in connection with, the provision of acupuncture.  Based on the assessment and findings of the E/M service performed, a Medical Acupuncturist may conclude that a patient placed on a traditional treatment regimen with or without medications support, would also benefit from medically necessary acupuncture services.  We have seen numerous denied claims where a ZPIC or MAC has alleged that the E/M service provided does not qualify for coverage and payment.  The contractors often argue that the physician’s documentation the E/M services is deficient and / or that the E/M service was not really medically necessary.  Instead, the ZPIC or MAC has suggested that the E/M services billed to Medicare have essentially been nothing more than a sham, provided and billed as a way to receive reimbursement since the acupuncture services subsequently provided did not qualify for coverage and payment.  When defending these providers, we have often found that the E/M service conducted and billed to Medicare was (in our opinion) both medically necessary and appropriate in light of the patient’s clinical profile.  Medical Acupuncturists should assume that their E/M services will be audited by one or more CMS program integrity contractors.  Physicians should ensure that the E/M services conducted are fully documented and are coded and billed at the proper level.

Essentially, the traditional medical services conducted need to be individually assessed, separate and apart from any complimentary care (such as acupuncture) that is subsequently provided.  The question to ask is straightforward“Were the traditional medical services provided and billed to Medicare medically necessary, fully documented, properly coded and accurately billed?”  If so, the decision to complement the traditional care with acupuncture should have no impact on whether or not the medical services qualify for coverage and payment under Medicare.  Unfortunately, it has been our experience that ZPICs and other CMS program integrity contractors are often skeptical of the medical necessity of the medical services conducted.  Frankly, we disagree.  After defending a number of these claims, it is our belief that Medical Acupuncturists have, in fact, typically concluded that a traditional assessment and treatment approach, coupled with complimentary acupuncture care services, are in fact, in the best interests of the patient.

(C) Physical Therapy Services Billed by Clinics That Also Offer Complementary Care are Under the Regulatory Microscope.

As reimbursement rates have dropped, a number of providers have expanded the scope of services offered by their clinics.  It is now quite common to find a clinic that offers licensed physical therapy, acupuncture and massage services to its clientele. These changes have not gone unnoticed by ZPICs.  In fact, it appears that ZPICs and other CMS program integrity contractors remain on the lookout for the improper billing of physical and / or occupational therapy claims to the Medicare program, even though the actual procedures performed have really involved acupuncture or massage therapy services.  Examples of improper billing include, but are not limited to:

CPT Code Billed to MedicareService Billed that May Qualify for Coverage Under MedicareActual Service Provided Not Covered by Medicare
CPT Code 97032Electrical Stimulation“Dry Needling”[6]
CPT Code 97110Therapeutic ExercisesMassage Therapy
CPT Code 97112Neuromuscular EducationAcupuncture
CPT Code 97140Manual TherapyMassage Therapy

 (D) Federal and State Prosecutors Have Pursued a Number of Health Care Fraud Cases for the Improper Billing of Acupuncture Services. 

While ZPICs and MACs are continuing to dedicate a portion of their time and resources to auditing Medicare claims submitted for coverage and payment by Medical Acupuncturists, it is important to keep in mind that these administrative audits can lead to more serious enforcement action.  Prosecutions have been, and are continuing to be pursued by state and federal law enforcement authorities for acupuncture-related health care fraud.  Examples of acupuncture-related fraud pursued by law enforcement are outlined below:

  • In this early example of acupuncture fraud, the U.S. Attorney’s Office for the Middle District of Florida prosecuted the owners, operators and physician employees of six acupuncture clinics alleged to have fraudulently billed the Medicare program from 1989 through 1993, for non-covered acupuncture treatment services. According to DOJ, the acupuncture clinics “hired physicians to illegally circumvent the Medicare rules prohibiting reimbursement for acupuncture and acupuncture related medical services. The defendants fraudulently back-dated medical and billing records to conceal that they were operating acupuncture clinics and that the medical services rendered were all in conjunction with acupuncture treatments.” [7]
  •  In this 1997 / 1998 case, a physician employee of a hospital improperly billed Medicaid for non-covered acupuncture services related to its drug and alcohol program. As the Department of Health and Human Services (HHS), Office of Inspector General (OIG) noted, “[t]he hospital knew or should have known that Medicaid does not cover acupuncture.”  The case was resolved through civil settlement.[8]
  • In this 2012 case, the owner of two acupuncture clinics and his staff allegedly billed Medicare for non-covered services. The government also alleged that the owner “received kickbacks for providing Medicare beneficiaries’ health identification cards and other personal and medical information to a clinic enrolled as a Medicare provider for physical therapy services” even though the beneficiaries did not receive any services from the clinic. Additionally, the owner’s co-conspirators were alleged to have created false medical documentation in connection with fraudulent claims.[9]
  • In this 2014 criminal case, the owner (who was also a licensed acupuncturist) of this clinic allegedly submitted non-covered acupuncture claims to the Medicare program for payment. Moreover, the clinic was alleged to have billed for massage and physical therapy services that were not performed by licensed physical therapists or physical therapy assistants.  Over a two-year period, the clinic was alleged to have submitted more than $1.6 million in fraudulent claims to Medicare and more than $475,000 to Blue Cross Blue Shield for payment.[10]
  • In this 2016 case, the U.S. Attorney’s Office for the Central District of California criminally prosecuted the owner of several companies and was alleged to have “recruited Medicare beneficiaries and provided uncovered services like massage and acupuncture for them. Even though the beneficiaries did not receive actual physical therapy, [the defendant’s] co-conspirators billed Medicare for physical therapy, and then funneled 56 percent of the reimbursement funds back to [the defendant].”[11]

III.     Conclusion:

As the popularity and acceptance of acupuncture increases, we should expect for the number of acupuncture audits and investigations to increase as well.  Now, more than ever, it is essential that you review both your business and clinical practices to better ensure that your care and treatment services fully comply with applicable statutory, regulatory and contractual obligations.  Have you properly established that the acupuncture treatment services are medically necessary?  Are the services fully documented in the patient’s medical records?  Are your coding and billing practices accurate and consistent with the payor’s requirements?  Finally, to the extent that your clinic also bills Medicare or a private payor for medical services, you must ensure that the services billed are, in fact, bona fide medical services, not acupuncture or massage therapy services that have been mischaracterized as physical or occupational therapy.

Acupuncture AuditsRobert W. Liles, J.D, M.S., M.B.A., represents health care providers around the country in connection with claims audits and investigations by Medicare, Medicaid and private payors. He also represents licensed providers in connection with complaints filed with State Licensure Boards. For a complimentary consultation regarding your case, please give us a call at:  1 (800) 475-1906. 

 

 

[1] For example, a licensed Acupuncturist in Texas must document the following information (as set out under 22 Tex. Admin. Code § 183.10), provides, in part:

Acupuncturists licensed under the Act shall keep and maintain adequate records of all patient visits or consultations which shall, at a minimum, be written in English and include:

(1) the patient’s name and address;

(2) vital signs to include body temperature, pulse or heart rate, respiratory rate, and blood pressure upon initial presentation of the patient, and those vital signs as deemed appropriate by the practitioner for follow-up treatment;

(3) the chief complaint of the patient;

(4) a patient history;

(5) a treatment plan for each patient visit or consultation;

(6) a notation of any herbal medications, including amounts and forms, and other modalities used in the course of treatment with corresponding dates for such treatment;

(7) a system of billing records which accurately reflect patient names, services rendered, the date of the services rendered, and the amount charged or billed for each service rendered;

(8) a written record regarding whether or not a patient was evaluated by a physician or dentist, as appropriate, for the condition being treated within 12 months before the date acupuncture was performed as required by §183.7(a) of this title (relating to Scope of Practice);

(9) a written record regarding whether or not a patient was referred to a physician after the acupuncturist performed acupuncture 20 times or for two months whichever occurs first, as required by §183.7(b) of this title (relating to Scope of Practice) in regard to treatment of patients upon referral by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners;

(10) in the case of referrals to the acupuncturist of a patient by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners, the acupuncturist shall record the date of the referral and the most recent date of chiropractic treatment prior to acupuncture treatment; and,

(11) reasonable documentation that the evaluation required by §183.7 of this title (relating to Scope of Practice) was performed or, in the event that the licensee is unable to determine that the evaluation took place, a written statement signed by the patient stating that the patient has been evaluated by a physician within the required time frame . . . .”

 http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=183&rl=10

[2] http://www.tmb.state.tx.us/idl/ECEA703E-ED1F-11D6-149A-C0CEFFBCF9D7

[3] https://www.uhccommunityplan.com/content/dam/communityplan/healthcareprofessionals/Bulletins/Non-Phys-Bill-Eval-Mgmt-Policy-Codes-Acupuncturist.pdf

4] https://www.excellusbcbs.com/wps/wcm/connect/6e9c5e35-2d2b-4767-b25d-e6e2e82fda67/Excellus+Coding+%26+Billing+for+Acupuncturists+Tip+Sheet+FINAL.pdf?MOD=AJPERES&CACHEID=6e9c5e35-2d2b-4767-b25d-e6e2e82fda67

[5] The American Academy of Medical Acupuncture (AAMA) was first established in 1987 by physicians who had graduated from the Medical Acupuncture for Physicians Training Program at the UCLA School of Medicine. The AAMA has rapidly grown in recent years and now has over 1,300 members.

[6] The question of whether “dry needling” qualifies as acupuncture remains in controversy.  Nevertheless, a number of government and private payors have held that “dry needling” is, in fact, acupuncture.  As such it does not qualify as a covered service under Medicare, regardless of whether a licensed physical therapist or a licensed acupuncturist performs the service.

[7] For additional information on this case, please see:  https://www.justice.gov/opa/selected-cases

[8] Department of Health and Human Services, Office of Inspector General, Semiannual Report, October 1, 1997 – March 31, 1998.  (Page 35). https://oig.hhs.gov/publications/docs/semiannual/1998/98ssemi.pdf

[9] Office of Inspector General, Semiannual Report to Congress, April 2013 – September 2013.  (Page 47).

 https://oig.hhs.gov/reports-and-publications/archives/semiannual/2013/SAR-F13-OS.pdf

[10] For additional information on this case, please see: https://www.justice.gov/usao-ndga/pr/norcross-clinic-owner-sentenced-healthcare-fraud

[11]For additional information on this case, please see:  https://www.justice.gov/usao-cdca/pr/brea-man-who-operated-physical-therapy-clinics-sentenced-over-10-years-federal-prison-3

 

Home Health: Pre-Claim Review Demonstration Project

Home health claims are being audited in the pre-claim review demonstration project.(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 Review 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 Review 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.
|


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.

Home Health ClaimsRobert 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) 475-1906.

More Texas Medicaid Dental Audits Are Coming in 2017!

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.  As Texas Medicaid dental audits move forward, you need to ensure that your practices are compliant with all applicable statutory and regulatory requirements.

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 Will Texas Medicaid Dental Audits Mean for My 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.