Presentation on theme: "Wachler & Associates, P.C."— Presentation transcript:
1Wachler & Associates, P.C. Preparing for the Future: Audit Risk Areas, Successful Appeal Strategies and ComplianceAndrew B. Wachler, Esq.Wachler & Associates, P.C.210 E. Third St., Ste. 204Royal Oak, MI 48067(248)MGMA 2013 Annual ConferenceOctober 6-9, 2013San Diego, California
2Learning ObjectivesUnderstand key audit risk areas for physician group practices.Integrate successful strategies into Medicare appeals to defend against claim denials.Identify specific compliance measures to implement before a Medicare audit.
3Current Audit Landscape CMS contractors in the current audit landscapeMedicare Administrative Contractors (MACs)Zone Program Integrity Contractors (ZPICs)Medicaid Integrity Contractors (MICs)Recovery Audit Contractors (RACs)Medicare RACs & Medicaid RACsOffice of Inspector General (OIG) audits
4Medicare Administrative Contractors (MACs) Statistically Projected AuditStatistical sampling is used to calculate and project (i.e., extrapolate) the amount of overpayment(s) made on claims.Claims are reviewed from a statistical random sample, the results of which are then extrapolated to the universe of claims during a given time period to determine the overpayment amount.Focus/Target ReviewContractors conduct targeted reviews, focusing on specific program vulnerabilities inherent in the PPS, as well as provider/service specific problems. The reviews should be conducted based on data analysis and prioritization of vulnerabilities.Additional Document Requests (ADRs)When a claim is selected for medical review, an ADR is generated requesting medical documentation be submitted to ensure payment is appropriate. Documentation must be submitted in a timely manner for review and payment determination.
5Zone Program Integrity Contractors (ZPICs) Focus on detection & prevention of Medicare fraudDifferent from the Medical Review program, which is primarily concerned with preventing and identifying errorsZPICs request medical records and conduct medical review to evaluate the identified potential fraudZPICs may also refer to the OIG and the Department of Justice (DOJ) for further investigationPrepayment reviews
6Two Recent ZPIC Post-Payment Review Results Letters “The ZPIC has determined that it is likely you have been overpaid for the services provided from the end of the audit period through the current date based on the documentation submitted for the medical review. Section 1833(e) of the Social Security Act places the burden on the provider to furnish information necessary to determine the amount due to the provider.”“The ZPIC is requesting that the provider conduct an internal audit of its claims to determine the accuracy of the claims billed. If research determines the claim/payment is incorrect, please process claim adjustments and arrange repayment with the claims processing contractor. Please provide the ZPIC with the results of this audit within 90 days.”
7Medicaid Integrity Contractors (MICs) Creation of Medicaid Integrity Program (MIP) mandated by Deficit Reduction Act of 2005MICs hired to perform review, audit, and education functions5 year look-back period3 types of MIC contractorsReview MICsAudit MICs30 days to provide recordsAll audit finding must be supported by adequate documentationAuditors are not paid on a contingency fee basis and are not responsible for collecting overpayments from providersEducation MICs
8MICs Continued MIC Fraud Referrals If an Audit MIC identifies potential Medicare or Medicaid fraud, it must simultaneously and immediately make a fraud referral to the Medicaid Integrity Group (MIG) or the Office of Inspector General for the Department of Health and Human Services (OIG). Medicaid Program Integrity Manual, , Ch. 10, §The OIG has 60 days to determine whether to accept the referral.
9Looking Forward: UPICs In, MACs & ZPICs Out Unified Program Integrity Contractor (UPIC)CMS will be combining integrity responsibilities of ZPICs and MACs into one integrity contractor UPICMICs will be phased outFocus on both Medicare & Medicaid integrity issuesCMS will be consolidating Medicare and Medicaid data into one unified database
10Medicare Recovery Audit Contractors (RACs) Private companies contract with MedicareIdentify Medicare overpayments and underpaymentsPaid on a contingency fee basisStarted as a demonstration project in 2005Section 302 of the Tax Relief and Health Care Act of 2006 made the RAC program permanentRequired nationwide expansion by 2010The Patient Protection and Affordable Care Act (PPACA) expanded the RAC program to Medicaid and Medicare Parts C and D
11Who are the RACs? Region A: Performant Recovery Working in CT, DE, D.C., MA, MD, MA, NH, NJ, NY, PA, RI and VTRegion B: CGI Technologies and Solutions, Inc.Working in KY, IL, IN, MI, MN, OH and WIRegion C: Connolly Consulting, Inc.Working in AL, AR, CO, FL, GA, LA, MS, NC, NM, OK, SC, TN, TX, VA and WVRegion D: HealthDataInsights, Inc.Working in AK, AZ, CA, IA, KS, MO, MT, ND, NE, NV, OR, SD, UT, WA, WY, Guam, American Samoa and Northern Marianas
12Medicaid RACsStates were required to have implemented their Medicaid RAC programs by January 1, 2012Medical necessity reviews for Medicaid RACCMS will not issue oversight provisionsReviews will be performed within scope of state laws and regulationsThe Medicaid RAC Final Rule does not require Medicaid RACs to receive prior approval for medical necessity reviews.The ACA requires states to contract with RACs, but states are free to contract with any RAC. As a result, there is significant variability between the states - there are 50 different sets of rules, and 50 different appeal processes.
13Physician Audit Risk Areas Home Services – Care Plan Oversight (CPO)Focus on overutilization of Care Plan Oversight (CPO) Services.Provided by a physician to a patient under home health agency or hospice care that requires complex and multidisciplinary modalities involving regular physician development and/or revision of care plans, review of subsequent reports of status, etc.Time spent for services is 30 minutes or more per calendar month.
14Physician Audit Risk Areas Emergency Department ServicesDenial reasons for services include:Failure to submit physician’s notes documenting component work with medical record;Key work was not performed by the physician or mid-level provider;Documentation failed to meet the key components for the level of coding.
15Physician Audit Risk Areas “Incident-to” ServicesThe OIG assesses whether “incident-to” services have a higher error rateThe OIG stated that “incident-to” services represent a program vulnerability that does not appear in claims dataCan be identified only by reviewing the medical record
16Physician Audit Risk Areas Physician Responsibilities for DME and Home Health ProvidersPhysicians are required to retain documentation for diagnostic or specialist services they order for patients (i.e. DME, home health, and IDTF)CMS or a Medicare contractor may request this documentation from a provider. (42 C.F.R )
17Physician Audit Issues E/M codingDocumentation does not support the level of service billed (i.e., upcoding or downcoding of services)Required components are not documented in the medical recordThe historical component is incomplete or absentThe medical decision-making documented is inappropriate or incomplete
18Examples of New RAC Approved Issues Affecting Physicians Incorrect Billed Drug and Biological HCPCS CodeProviders are required to report appropriate HCPCS codes for the drugs and biologicals administered and billed. Medical documentation will be reviewed to determine that the appropriate HCPCS code was billed. (At this time, Medical Necessity will be excluded from this review.)Blepharoplasty – eyelid liftsWhen done for cosmetic purposes, it does not meet the criteria of the functional visual impairment parameters and is considered not reasonable and medically necessary.Intensity-Modulated Radiation Therapy (IMRT)IMRT is only covered for certain diagnosis and when certain conditions are metExcessive Units of Multiple Drug Class ScreeningsEffective January 1, 2011, HCPCS codes G0431 and G0434 for multiple drug class screenings may only be reported once per patient encounter regardless of the number of drug classes tested.
20Other Physician Audit Issues Pain managementEPO: medical necessity and LCD requirementsUrological procedures: medical necessity and LCD requirementsHome physician services
21Medicare & Medicaid Overpayments PPACA Section 6402(d)Requires providers and suppliers receiving funds under the Medicare program to report and return overpayments by the later of (1) the date which is 60 days after the date on which the overpayment was identified or (2) the date any corresponding cost report is due, if applicable.Expands liability to include knowing failure to repay“…knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.”Proposed Rule (77 Fed. Reg. 9179)10-year look-back periodRecent case law: United States and State of Wisconsin ex rel. Keltner v. Lakeshore Medical Clinic, LTD
22Successful Audit Appeals Strategies: Overview Rebuttal and Discussion PeriodRedeterminationAppeal deadline: 120 days (30 days to avoid recoupment)ReconsiderationAppeal deadline: 180 days (60 days to avoid recoupment)Administrative Law Judge HearingAppeal deadline: 60 daysCMS will recoup the alleged overpayment during this and following stages of appealMedicare Appeals Council (MAC)Federal District Court
23Successful Appeals Strategies: Arguing the Merits Merit-based arguments:Medical necessity of the services providedAppropriateness of the codes billedFrequency of servicesTo effectively argue the merits of a claim:Draft a position paper laying out the proper coverage criteriaSummarize submitted medical records and documentationIf relying on medical records in an ALJ hearing:Organize using tabs, exhibit labels and color codingUse graphs and medical summaries to assist in the presentation of evidenceUse of past Medicare Appeals Council cases
24Successful Appeals Strategies: Use of Experts Experts such as physicians, registered nurses, coding experts, and inpatient rehabilitation specialists may be helpful in appealing a contractor determinationExperts can:Assess strength of a case early on and help develop a strategic planAssist with the interpretation and organization of medical recordsProvide testimony regarding appropriateness and/or necessity of servicesAffidavit at redetermination and reconsideration levelsLive testimony at ALJ hearing
25Successful Appeals Strategies: Audit Defenses Provider Without FaultWaiver of LiabilityTreating Physician’s RuleChallenges to Statistics
26Successful Appeals Strategies: Provider Without Fault Section 1870 of the Social Security ActOnce an overpayment is identified, payment will be made to a provider if the provider was without “fault” with regard to billing for and accepting payment for disputed servicesDefinition of fault3 Year Rule
27Successful Appeals Strategies: Waiver of Liability Section 1879(a) of the Social Security ActUnder waiver of liability, even if a service is determined not to be reasonable and necessary, payment may be rendered if the provider or supplier did not know, and could not reasonably have been expected to know, that payment would not be made.
28Successful Appeals Strategies: Challenges to Statistics Section 935 of the MMALimitations on Use of Extrapolation – A Medicare contractor may not use extrapolation to determine overpayment amounts to be recovered by recoupment, offset, or otherwise, unless the Secretary determines thatThere is a sustained or high level of payment error; orDocumented educational intervention has failed to correct the payment error.Cannot challenge the substance of the finding of “sustained or high rate of error,” but can challenge whether a finding was madeGuidelines for conducting statistical extrapolations are set forth in the Medicare Program Integrity Manual (CMS Pub ), Chapter 3, §§See also MAC caseTransyd Enterprises, LLC d/b/a Transpro Medical Transport
29Compliance Comparative Billing Reports Snapshot of utilization data for an individual providerProvider’s billing pattern for a given code or group of codes is compared to the state average and the national averageMailed to the top 5,000 billersCBR examples:E/M servicesPodiatry: nail debridementCardiology servicesCompliance Policy on InvestigationsCompliance and Organizational Tips to Prepare for an Audit
30Compliance Policy on Investigations Have policies on cooperation and coordination with government investigations in placeIf an employee receives any inquiry, subpoena, or other legal document relating to the employer’s business:Notify the Compliance Officer immediately, who will contact legal counselNever provide false or inaccurate information to a government investigatorOn-Site Government InquiriesObtain “initial contact” informationContact Compliance OfficerDraft memorandum regarding information obtained from the investigator and provide to Compliance OfficerSearch WarrantsEmployees speaking with government investigators:Cannot be prohibited from speaking with government investigators, but may politely declineMay request legal counsel to be present during an interview
31Compliance and Organizational Tips to Prepare for an Audit Be aware of your RAC’s new approved issuesDesignate a person to check the approved issues lists on a regular basisBe aware of improper payments that have been identified in OIG and CERT reportsOIG:CERT:Implement proactive compliance measuresSelf audits (prospective vs. retrospective)Documentation
32Compliance and Organizational Tips to Prepare for an Audit Availability of internal expertsDetermine who could act as an expert for the different specialties in your institutionAppeals – how will you handle?Learn from past appeal experiencesKeep track of denied claimsLook for patterns of denialsDevelop necessary corrective action
33Call to ActionOutline the audit landscape and stay current with new developmentsIdentify key audit risk areas that affect your practiceDevelop proactive compliance measures that will help your practice prepare for and mitigate the impact of an audit
34Wachler & Associates, P.C. QUESTIONS?Andrew B. Wachler, Esq.Wachler & Associates, P.C.210 E. Third St. Ste. 204Royal Oak, Michigan 48067(248)