Audit alert: Notable items in the 2013 OIG work plan
Oct. 1, 2012 represents the start of the federal fiscal year. That makes now a good time to look at the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) work plan for the current fiscal year, especially as it relates to physician services under the Medicare program. Knowing what the OIG is examining can sometimes provide a useful “heads up” on issues that Medicare itself may focus on during the coming 12 months.
First, OIG has no fewer than five items on its work plan aimed at diabetes testing supplies:
- Supplier compliance with payment requirements for blood glucose test strips and lancets,
- Effectiveness of system edits to prevent inappropriate payments for blood-glucose test strips and lancets to multiple suppliers,
- Potential questionable billing for test strips in 2011,
- Improper supplier billing for test strips in competitive bidding areas,
- Supplier compliance with requirements for nonmail order claims.
Although most of these items are aimed at suppliers, it is reasonable to expect that such attention may prompt those suppliers to be more demanding of physician prescribers. Given the incidence of diabetes among family medicine patients, family physicians are among the most common prescribers of such supplies.
For those practices that have office laboratories, the OIG’s work plan has at least three items of interest:
- Billing characteristics and questionable billing in 2010,
- Reasonableness of Medicare payments compared to those by state Medicaid and Federal Employees Health Benefit programs,
- Part B payments for glycated hemoglobin A1C tests.
Finally, in the particular area of physician services, the following items stand out:
- Noncompliance with assignment rules and excessive billing of beneficiaries,
- Error rate for incident-to services performed by nonphysicians,
- Place-of-service coding errors,
- Evaluation and management (E/M) services—potentially inappropriate payments in 2010.
Regarding the last item on this list, the OIG work plan states:
We will determine the extent to which the Centers for Medicare & Medicaid (CMS) made potentially inappropriate payments for E/M services in 2010 and the consistency of E/M medical review determinations. We will also review multiple E/M services for the same providers and beneficiaries to identify electronic health records (EHR) documentation practices associated with potentially improper payments. Medicare contractors have noted an increased frequency of medical records with identical documentation across services. Medicare requires providers to select the code for the service on the basis of the content of the service and have documentation to support the level of service reported.
The OIG’s review will focus on 2010 services, but it is reasonable to expect that this will be an area of focus going forward. Since E/M services represent the “bread and butter” of family medicine, and in light of the increasing use of EHRs in family medicine practices, this is one area that probably merits an internal review for most family medicine practices now and in the future.
Of course, the OIG’s work plan is more extensive than just the items listed above, so a scan of the table of contents for that work plan would probably be in order to see if there are other items that may be relevant to your particular practice. Explanations of all items are included in the OIG work plan.
–Kent Moore, Senior Strategist for Physician Payment for the American Academy of Family Physicians
Recovery audit contractors get a new fishing license
In a previous blog post, I discussed the Centers for Medicare & Medicaid Services’ (CMS) decision to allow one of its recovery audit contractors (RAC), Conolly, to begin auditing claims for evaluation and management codes, specifically code 99215. Earlier this month, the U. S. Court of Appeals for the 9th Circuit gave RACs and other Medicare contractors even more discretion in this regard. Specifically, in Palomar v. Sebelius, D.C. No. 3:09-cv-00605-BEN-NLS (Sept. 11, 2012), the court upheld that a decision by a RAC to reopen a Medicare claim for complex review was not reviewable.
The Palomar case involved a RAC's determination that services provided to a Medicare beneficiary were not reasonable and necessary. The claim in question was more than one year old and could only be reopened for "good cause" under Medicare regulations. All of the reviewers that examined the case agreed with the RAC's determination regarding medical necessity. However, the administrative law judge who reviewed the RAC determination concluded that there was not good cause to reopen the claim and reversed the RAC decision.
On appeal, the Medicare Appeals Council (MAC) reversed the administrative law judge decision. The council ruled that the Medicare regulation at 42 C.F.R. § 405.980(a)(5) makes a Medicare contractor's decision to reopen a claim unreviewable. Both the U.S. District Court and the U.S. Court of Appeals for the 9th Circuit affirmed this opinion. The courts held that the regulation expressly forecloses jurisdiction to review the reopening decision and that providers may only appeal the substance of a contractor's overpayment determination (e.g. whether or not the services were reasonable and necessary).
The Secretary for the U.S. Department of Health & Human Services argued that the review of contractors' compliance with the regulations is solely a matter for CMS's performance evaluations of the contractors. That leaves physicians at the mercy of CMS’s ability to manage its contractors.
Additionally, because the RACs get a cut of every overpayment that they find, they have incentive to reopen claims whether or not "good cause" exists under the Medicare regulations. This is especially true because most determinations finding an absence of medical necessity are based on a lack of documentation, and because it will be harder to find documentation and testimony to support older claims.
The "good cause" requirement was an important source of protection against contractor fishing expeditions. Unfortunately, the Palomar decision just gave RACs and other Medicare auditors a virtually unlimited fishing license going forward.
–Kent Moore, Senior Strategist for Physician Payment for the American Academy of Family Physicians
ICD-10: The gift of time
In February, I posted that the U.S. Department of Health and Human Services (HHS) had signaled its intent to delay implementation of International Classification of Diseases, 10th Edition (ICD-10), which was scheduled to happen on Oct. 1, 2013. Now HHS made it almost official.
HHS Secretary Kathleen Sebelius announced a proposed rule that would delay the compliance date for ICD-10 from Oct. 1, 2013 to Oct. 1, 2014. The proposed rule is subject to a 30-day comment period before HHS finalizes it and makes the proposed delay completely official.
As Cindy Hughes has noted in her most recent article in Family Practice Management, "While the delay may give you more time to prepare, it most certainly does not mean that you can postpone this work; it just means that if you start now, you might actually be ready by the new deadline." Cindy's article provides some great information in this regard, and you can find more information and resources on the American Academy of Family Physicians website.
So, HHS has provided the gift of another 365 days to prepare for implementation of ICD-10. Physicians and others would do wisely to use this gift to their advantage in getting ready. It seems unlikely that HHS will be this generous again in advance of the new deadline.
ICD-10 delay may be in the works
With 5010 implementation effective Jan. 1, 2012, the next major hurdle facing physicians and the rest of the health care system is implementation of International Classification of Diseases, 10th Edition (ICD-10). Currently, that is slated to happen on Oct. 1, 2013.
Or is it? This week, officials at the Centers for Medicare and Medicaid Services (CMS) and Health and Human Services (HHS) announced that a delay in implementation may be forthcoming. First, on Tuesday, acting CMS Administrator Marilyn Tavenner told reporters that the CMS will "re-examine the timeframe" for ICD-10 implementation through a rulemaking process. She did not say when that rulemaking process will begin, and she did not actually say that implementation will be delayed.
Then, on Wednesday, HHS Secretary Kathleen G. Sebelius announced that HHS will initiate a process to postpone the date by which certain health care entities have to comply with ICD-10. In a press release, the agency stated, "HHS will announce a new compliance date moving forward."
So, it appears that a delay in implementation is in the works. However, how much of a delay and to whom it will apply remain unknown. Pending answers to those questions in the form of a posting in the Federal Register, physician practices are probably best advised to continue preparing for implementation on Oct. 1, 2013. Like the Boy Scouts, it is better to be prepared, lest the anticipated delay does not come to fruition.
Accountable care organizations and the future of physician payment
As promised in the meeting agenda, an FTC panel debated circumstances under which independent health care providers participating in an ACO could engage in price point negotiations with private payers without running afoul of federal antitrust laws that prohibit price-fixing. Also, panel participants explored different ways in which the HHS secretary could exercise waiver authority or create new exceptions and safe harbors related to the physician self-referral law, the federal anti-kickback statute, and the civil monetary penalty law, for the purpose of encouraging the creation and development of ACOs. The AAFP submitted comments that were included in the meeting record, and the Academy will continue to track the progress of the issues discussed.