1. SUNY Buffalo School of Medicine & Biomedical Sciences Graduate Medical Education Resident Compliance Training Brigid M. Maloney, J.D Compliance Officer

2. Overview Fraud Awareness Fraud Awareness Medical Record Basics Medical Record Basics E/M Documentation & Coding E/M Documentation & Coding

3. Fraud Awareness Who Investigates Fraud? Who Investigates Fraud? Federal Laws and Regulations Federal Laws and Regulations Fines & Penalties Fines & Penalties Billing Fraud Billing Fraud Unlawful Kickbacks Unlawful Kickbacks Stark/Prohibited Self-Referrals Stark/Prohibited Self-Referrals

4. Who Investigates Fraud? Centers for Medicare & Medicaid Services Centers for Medicare & Medicaid Services Office of the Inspector General Office of the Inspector General Federal Bureau of Investigation Federal Bureau of Investigation Department of Justice Department of Justice U.S. Attorneys Offices U.S. Attorneys Offices State Attorney General Offices State Attorney General Offices State Medicaid Fraud Control Units State Medicaid Fraud Control Units US Postal Service US Postal Service Managed Care Organizations Managed Care Organizations Intermediaries and Contractors of CMS Intermediaries and Contractors of CMS Private Insurance Companies Private Insurance Companies Qui Tam relators/whistleblowers Qui Tam relators/whistleblowers

5. Federal Laws & Regulations Civil False Claims Act Civil False Claims Act Criminal False Claims Act Criminal False Claims Act False Statements Act False Statements Act Mail/Wire Fraud Act Mail/Wire Fraud Act Racketeer Influenced & Corrupt Organizations Act (RICO) Racketeer Influenced & Corrupt Organizations Act (RICO) Anti-kickback Statute Anti-kickback Statute Stark Laws Stark Laws HIPAA HIPAA

6. Fines & Penalties Jail time Jail time $$$ $$$ Revocation of provider i.d. number Revocation of provider i.d. number can’t diagnose, treat, prescribe medications to patients whose care is paid for by federal program(s) can’t diagnose, treat, prescribe medications to patients whose care is paid for by federal program(s) Barred from employment with provider who participates in federal program(s) Barred from employment with provider who participates in federal program(s)

7. Billing Fraud Upcoding Upcoding Billing for services not rendered or provided as claimed Billing for services not rendered or provided as claimed Submitting claims for equipment, supplies or services that are not medically necessary Submitting claims for equipment, supplies or services that are not medically necessary Billing for non-covered services as if covered Billing for non-covered services as if covered Clustering/Assumption billing Clustering/Assumption billing Falsification of documents Falsification of documents

8. Anti-kickback Law Prohibition against making payments in return for patient referrals or to induce the purchasing or leasing of equipment or services paid for by federal programs. Includes kickbacks, bribes, etc. Prohibition against making payments in return for patient referrals or to induce the purchasing or leasing of equipment or services paid for by federal programs. Includes kickbacks, bribes, etc. Purpose of the law: Purpose of the law: -address government concerns over additional cost -loss of patient choice -loss of patient choice -factors other than quality driving decision making -competition -exercise of professional judgment.

9. Anti-kickback Law Exceptions/Safe Harbors -price discounts that are properly disclosed and reflected in costs claimed for reimbursement -payments made to bona fide employees -certain group purchasing vendor agreements -copayment waivers for indigent patients

10. Stark Law: Prohibition Against Self-Referrals Physicians are prohibited from referring patients to “designated health services” to entities in which they (or an immediate family member) have a financial relationship.

11. Stark Law: Prohibition Against Self-Referrals Designated Health Services: - laboratory services - prosthetics/orthotics - physical therapy -home health svcs - occupational therapy -outpt. prescriptions - radiology -inpatient/outpatient - radiation Therapyhospital services - DME & supplies - nutrients, equipment & supplies

12. Stark Law: Prohibition Against Self-Referrals Exceptions/Safe Harbors: - Space/Equipment Rentals - Bona fide employment relationships - Personal service/independent contractors - Recruitment incentives - Fair market value payments for items and services - Nonmonetary compensation up to $300 - Medical staff incidental benefits

13. Stark Law: Prohibition Against Self-Referrals Threshold Questions: 1.Does this arrangement involve a referral of a Medicare or Medicaid patient by a physician or an immediate family member of a physician? 2.Is the referral for a “designated health service”? 3.Is there a financial relationship between the referring physician or family member and the entity to which the referral is being made?

14. Case #1 A physician group that refers many Medicare patients to various community labs for lab work have decided to open a lab of their own. The plan was simple: operate an off-site lab, refer all their patients to that lab, and enjoy the profits from all of the business they refer to their lab. Unlawful referral arrangement?

15. Case #2 After being advised by their attorneys that such a venture was prohibited under the Stark laws, the same physicians decided instead to open a lab in their spouses’ names, so they would not be implicated in the self-referrals. Unlawful referral arrangement?

16. Case #3 Dr. Jackson is employed part time as the medical director at the UMC hospital. His job duties were described in a 3-year employment agreement that he signed when he was hired. He is paid a set salary of $50,000 which does not change, regardless of the number of private patients he refers to UMC each year. Dr. Jackson also treats patients at a private office with three partners. Dr. Jackson routinely refers a very large number of his patients to UMC’s outpatient physical therapy department for treatment. Unlawful referral or kickback?

17. Case #4 A physician received a research grant from a pharmaceutical company. The grant provided for substantial cash payments to the physician in exchange for administering the drug company’s product to patients and keeping brief notes about the treatment outcome. Upon completion of a limited number of these studies, the physician received payment from the pharmaceutical company. Unlawful kickback?

18. Medical Record Basics The medical record facilitates: - ability of physician and other health care professionals to evaluate and plan the patient’s immediate treatment, and to monitor his/her health care over time; monitor his/her health care over time; - Communication and continuity of care among physicians and other health care professionals involved in the patient’s care; - Accurate and timely claims review and payment; - Appropriate utilization review and quality of care evaluations; - Collection of data that may be useful for research and education. education.

19. Medical Record Basics Principals of Medical Record Documentation: 1. Record should be complete & legible 2. Documentation for each patient encounter should include— a. chief complaint, history, exam findings, prior diagnostic test a. chief complaint, history, exam findings, prior diagnostic test results, results, b. assessment, clinical impression or diagnosis, c. plan for care, and d. date & legible identity of the observer.

20. Medical Record Basics Principals of Medical Record Documentation, cont’d: 3. If not documented, the rationale for ordering diagnostic and other ancillary services should be easily inferred. 4. Past & present diagnosis should be accessible to the treating and/or consulting physician. 5. Appropriate health risk factors should be identified. 6. The patient’s progress, response to, and changes in treatment, and revision of diagnosis should be documented

21. Medical Record Basics What Third Party Payors are Looking For: - site of service - medical necessity and appropriateness of the diagnostic and/or therapeutic of the diagnostic and/or therapeutic services provided services provided - that services provided have been accurately reported accurately reported

22. Medical Record Basics Evaluation & Management (E/M) Services: HCFA (now CMS) released documentation guidelines for E/M services in 1995 and 1997 to ensure accuracy in E/M code selection by physicians.

23. Medical Record Basics Evaluation & Management (E/M) Services: What are E/M services? - non-procedural services such as listening, counseling, and educating - patient visits in offices, hospitals, and nursing homes - consultations - certain emergency room and critical care services

24. Medical Record Basics Evaluation & Management (E/M) Services: CPT codes are assigned to E/M services based on the level of skill, effort, time, responsibility, and medical knowledge that is required in each encounter. This level is determined by the physician’s notes and other information contained in the medical record.

25. Medical Record Basics Evaluation & Management (E/M) Services: Document properly and thoroughly so you can get paid for the work you performed and avoid allegations of fraudulent billing. IF IT ISN’T DOCUMENTED, IT DIDN’T HAPPEN

26. Medical Record Basics Evaluation & Management (E/M) Services: Documentation that ensures reimbursement adequate for the level of service you provided includes: 1. Patient History 2. Examination 3. Medical Decision Making 4. Counseling/Coordination of Care (>50% time)

27. Medical Record Basics Evaluation & Management (E/M) Services: HISTORY 1. Chief Complaint (CC): Concise statement describing the symptom, problem, condition, dx, or other reason for the encounter. 2. History of Present Illness (HPI): Chronological description of the development of the patient’s present illness from the first sign/symptom or from the previous encounter to the present. 3. Review of Systems (ROS): An inventory of body systems obtained through a series of questions seeking to identify signs/symptoms 4. Past, Family, and/or Social History (PFSH): past illnesses, operations, etc; hereditary factors; age appropriate review of past and current social activitites.

28. Medical Record Basics Evaluation & Management (E/M) Services: EXAMINATION The levels of E/M services are based on four types of examination: 1. Problem focused - a limited exam of the affected body area or organ system 2. Expanded Problem Focused – a limited exam of the affected body area or organ system and other symptomatic or related organ systems 3. Detailed – an extended exam of the affected body areas and other symptomatic or related organ systems 4. Comprehensive – a general multisystem examination or complete examination of a complete organ system.

29. Medical Record Basics Evaluation & Management (E/M) Services: MEDICAL DECISION MAKING Based on the complexity of establishing a diagnosis and/or selecting a management option, as measured by: - the number of possible diagnoses and/or the number of management option that must be considered; - the number of possible diagnoses and/or the number of management option that must be considered; - the amount and/or complexity of medical records, diagnostic tests, and other information that must be obtained, reviewed and analyzed; and - the risk of significant complications, morbidity and/or mortality associated with the patient’s presenting problem, diagnostic procedures, and the possible management options.

30. Medical Record Basics Evaluation & Management (E/M) Services: MEDICAL DECISION MAKING To support the complexity of medical decision making, always be sure to document in the medical record: - Lab, X-Ray, or procedures ordered - Review of lab, x-ray, or procedure reports - Review of old records or gathering additional information from other sources other sources - Co-morbidities/underlying diseases

31. Medical Record Basics Evaluation & Management (E/M) Services: COUNSELING/ COORDINATION OF CARE If it dominates more than 50% of the physician/patient encounter, time is considered the controlling factor to qualify for a particular level of E/M service.

32. Questions? Brigid M. Maloney, J.D. Compliance Officer U.B. Associates, Inc. Ph: (716) 829-3176 E-mail: bmaloney@buffalo.edu bmaloney@buffalo.edu