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Facing the Leviathan
Practical Tips for Today’s
Enhanced Regulatory Environment
Patti Cotten, Daniel Swanson
and Ian Hennessey
Decline of Litigation• Litigation has been in decline for several
years
• Medical Malpractice / Healthcare Liability has seen a significant decline since various tort reform measures started in 2007
Decline of Litigation
• In TN 638 medical malpractice cases were
filed in 2006
• During a series of reforms from 2007-2011
these cases began to be call healthcare
liability actions
• 2016 saw 391 healthcare liability actions
filed in TN
Decline of Litigation• Almost a 40% reduction in healthcare
liability actions
• Tort Reform is working
• Good news, right?
Rise of the Regulatory Action• Regulatory actions by payors and state and
federal agencies are on the rise
• Some commentators have estimated that healthcare provider audits have increased by over 900% in the past 5 years
• 150% increase in new regulatory files opened in the past year
Rise of the Regulatory Action• The agencies/authorities pursuing these
audits are the new “plaintiffs” that providers must worry about
• Unlike traditional plaintiffs in litigation, regulatory “plaintiffs” often have unchecked powers
• You have to play by their rules
Rise of the Regulatory Action• You can sometimes seek reconsideration or
an appeal but the entity seeking money from you is often the judge and jury
• Many payor/provider agreements have arbitration clauses
• In some situations penalties and repayments can be enforced before you even get a day in court or arbitration
Rise of the Regulatory Action• Increased audits, why?
➢ Use of statistical analysis and data mining
➢ Revenue stream for payors, government agencies and auditing contractors
➢ Shared information between agencies and payors
Types of Regulatory ActionsFalse Claims Act Investigations
• Federal and State
➢ Office of Inspector General
➢ U.S. Attorney’s Office (Criminal and Civil)
➢ State Attorney General’s Office
Types of Regulatory ActionsFalse Claims Act Investigations
• How do they start?
➢ Qui Tam Actions (Whistleblower Lawsuit)
➢ Data Mining/Statistical Analysis
➢ Civil Investigative Demands
◦ U.S. Attorney
◦ State Attorney General
Types of Regulatory ActionsCivil Investigative Demands
• Fishing expeditions that can lead to identification other issues
➢ Incident to billing regarding mid-levels
➢ Coding of E/M Services
➢ Controlled substance prescribing
Types of Regulatory ActionsMedicare/TennCare Audits
◦ Most likely performed by a contractor
➢ AdvanceMed
➢ Cahaba/Palmetto
➢ Health Integrity
◦ Results extrapolated across all patients
Types of Regulatory ActionsPrivate Payor Audits
➢ BCBST
➢ UHC
➢ Cigna
• Request for Reconsideration - they decide
• Arbitration – you have to play by their rules
Types of Regulatory ActionsHIPAA Investigations by the Office of Civil Rights (“OCR”)
• All HIPAA breaches must be self-reported to the OCR even if it involves only onepatient
• Investigations are performed by contractors
➢ Lockheed Martin
➢ Leidos
Types of Regulatory ActionsHIPAA Investigations
• Breaches involving >500 patients are much more likely to be investigated by the OCR
• Timely notification to the patients with all the disclosures mandated by the HIPAA notification rule is key
• Mitigation efforts help
Types of Regulatory ActionsHIPAA Investigations
• Penalties are almost certain if:
➢ No policies in place at time of breach
➢ No business associate agreements
➢ No employee training
➢ No patient notification provided
➢ No steps to mitigate disclosure
Prevention v. CureTips
• Be Proactive
• Essentials
➢ Business and HIPAA Compliance Plans
➢ Business Associate Agreements
➢ Self-audits
➢ Report and Refund Overpayments
Prevention v. Cure• Business and HIPAA Compliance Plans
➢ Specifically tailored to the practice
➢ Beware of one size fits all compliance plans
➢ Yearly tune-up
Prevention v. Cure• Self-audits
◦ Billing audit
➢ Incident to billing
➢ Overuse use of modifiers
◦ Medical record audit
➢ Requirements for level of E&M coding in the patient note
➢ Requirements met for use of modifiers
Prevention v. CureReporting and Refunding Overpayments
• Promptly report and refund overpayments when discovered
• Address root cause of overpayment (billing software, staff or provider training, etc…)
Prevention v. CureWhy Report and Refund Overpayments
• Prevent incorrect billing from becoming fraudulent billing (3x overpayment penalty)
• If Medicare billing is found to actually be fraudulent it will need to be voluntarily reported to the Office of the Inspector General
Prevention v. Cure➢ Consider yearly maintenance of your
business and HIPAA compliance plans
➢ Conduct regular billing and medical audits
➢ Yearly provider and staff training for coding, billing, and HIPAA
The “Incident to” Rule• This is a MEDICARE Part B payment rule
which allows a physician to bill for services performed by auxiliary personnel (e.g., nurse practitioners and physician assistants) under the physician’s name and receive the full Medicare Physician Fee Schedule reimbursement for those services.
• Independent NP/PA services which do not meet the standards for incident to billing must be billed under the name of the NP/PA and paid at 85% of the MPFS.
The “Incident to” RuleReviewing the basics:
• Medicare pays for services and supplies incident to the service of a physician (or other practitioner) which are:➢ an integral, though incidental, part of the
service of a physician (or other practitioner) in the course of diagnosis or treatment of an injury or illness (i.e., there must FIRST be a physician service before there can be a service “incident to” the physician service;
The “Incident to” RuleReviewing the basics (continued)
➢ of a type that is commonly furnished in physician’s offices or clinics;
➢ furnished under the direct supervision of the physician (or other practitioner), i.e., the supervising physician must be on premises in the office suite and immediately available to provide assistance and direction;
The “Incident to” RulePractical Billing Tips:
• Only the supervising physician (or other practitioner) may bill Medicare for incident to services.
• Have the NP/PA indicate the supervising physician on premises in the patient recordfor applicable dates of service.
• Show the physician on premises, rather than the physician who ordered the service, in Block 24J of the CMS Form 1500
The “Incident to” Rule
COMMERCIAL PAYERS?
MEDICARE ADVANTAGE?
TENNCARE/MEDICAID?
The “Incident to” Rule – Sort of…Blue Cross Blue Shield of Tennessee:
• Prior to May 1, 2017, PAs or NPs working for a physician group credentialed by BCBST (but not individually credentialed by BCBST) could bill under the physician’s name for the service so long as they met the retrospective review requirements under the Staff Supervision Policy.
• Effective January 1, 2017, BCBST adopted a new policy requiring nurse practitioners and physician assistants to be credentialed and contracted, either individually or as part of an existing physician group providing services to Blue Cross members.
The “Incident to” Rule – Sort of…Blue Cross Blue Shield of Tennessee (cont.)
• Effective May 1, 2017, NPs and PAs will not be permitted to bill as a delegated serviceunder the physician’s NPI. That is, if a PA or NP sees the patient without any physician involvement in the treatment, the PA or NP will be required to bill the service under his or her own name.
• Effective May 1, 2017, claims submitted by non-credentialed, non-contracted NPs and PAs will be considered out of network.
The “Incident to” Rule – Sort of…Blue Cross Blue Shield of Tennessee (cont.)
• Open questions: what is a delegated service?
➢ What if the NP/PA and the Physician “share” the E/M visit?
➢ What if the NP/PA sees and evaluates the patient, establishes a plan of care, and the physician comes in the room after to see the patient and confirm the plan of care?
The “Incident to” Rule – Sort of…
Blue Cross Blue Shield of Tennessee (cont.)
• Open questions: what is a delegated service?
➢ What if the NP/PA discusses the care of the patient with the physician, outside the exam room, and the physician later reviews and co-signs the chart?
The “Incident to” Rule – Sort of…
UnitedHealthcare:
(Network Bulletin: June 2017)
The “Incident to” Rule – Sort of…
UnitedHealthcare (cont.)
• UHC allows “incident to” billing for its commercial and Medicare Advantage Plans ONLY. For commercial plans, Physicians must use the “SA” modifier to indicate that the PA/NP service was performed in collaboration with a physician. For Medicare Advantage, it is unclear whether the SA modifier is required — but we see no harm in appending it.
The “Incident to” Rule – Sort of…
UnitedHealthcare (cont.)
• UnitedHealthcare Community and Dual Complete do NOT allow “incident to” billing — their provider manuals specifically state that services performed by a midlevel cannot be billed by the supervising physician and must be billed by the NP/PA performing the service.
EHR – Don’t Go Cloning!PalmettoGBA• Some EHR technologies auto-populate
fields when using templates built into the system.
• Other systems generate extensive documentation on the basis of a single click of a checkbox, which if not appropriately edited by the provider may be inaccurate.
• Such features produce information suggesting the practitioner performed more comprehensive services than were actually rendered.
EHR – Don’t Go Cloning!PalmettoGBA (cont.)• While these methods of documenting are
acceptable, it would not be expected the same patient had the same exact problem, symptoms, and required the exact same treatment or the same patient had the same problem/situation on every encounter.
• Cloned documentation does not meet medical necessity requirements for coverage of services.
EHR – Don’t Go Cloning!
PalmettoGBA (cont.)
• Identification of this type of documentation will lead to denial of services for lack of medical necessity and recoupment of all overpayments made.
• Over-documentation is the practice of inserting false or irrelevant documentation to create the appearance of support for billing higher level services.
EHR – Don’t Go Cloning!Practical Tips:• Disable “cut and paste” and auto-populate
features of your EHR system.• If not, training providers is essential. All
providers documenting in the record must understand that use of the “cut and paste” feature requires that every portion of the record included must be reviewed to make appropriate changes to reflect an updated service. Then, signed and authenticated by the provider.
EHR – Don’t Go Cloning!
Practical Tips (cont.):
• Make identification of “cloning” a priority in internal auditing. If identified, there MAY be a repayment obligation, but investigation and education are crucial before making that determination.
Dangerous Liaisons
Ancillary Revenue Streams:
• Pharmacy/In-house dispensing
• Laboratory
• Allergy
• Physical Therapy
• Urgent Care
• Medi-Spa or weight loss services
• Genetic testing
• Infusion
Dangerous Liaisons
Ancillary Revenue Streams:
• Ancillary Services are under increasing scrutiny under the Anti-Kickback Statute
• Beware of vendors which offer turnkey services in exchange for a share of the profits or perform data mining to recommend patients for the ancillary service.
Dangerous Liaisons
Ancillary Revenue Streams:
• May be subject to MAC/RAC data mining and challenges for medical necessity
• Protect the Group against retroactive denials by payers by contractually obligating the vendor to contribute to the refund/recoupment.
Practice Overpayments and RefundsWho’s Responsible?• With an ever increasing number of audits
and recoupment actions, and even voluntary refunds, clients are becoming increasingly concerned about how the actions of practice physicians can impact liability for the practice as a whole.
• If the services were billed under a number assigned to the practice, Medicare will look to the practice for the recoupment of payments for services rendered by its employed physicians.
Practice Overpayments and Refunds
Who’s Responsible?
• Group practices should consider whether it is appropriate to seek indemnification from individual physicians for conduct which prompts the investigation, audit, overpayment assessment or voluntary refund.
Questions?
Daniel Swanson - [email protected]
Patti Cotten - [email protected]
Ian Hennessey - [email protected]
(865) 637-0203
