Gary Herschman is a Member of the firm in the Health Care and Life Sciences practice at Epstein Becker Green in the Newark, NJ, and New York offices. Victoria Sheridan (vsheridan@ebglaw.com) is a Member of the firm and John D. Barry (jdbarry@ebglaw.com) is an Associate in the Newark, NJ, office of Epstein Becker Green.
The Office of Inspector General of the United States Department of Health and Human Services (the OIG) protects the integrity of federal healthcare programs and their beneficiaries by, among other activities, detecting and preventing fraud, waste, and abuse. These efforts are reflected in a Work Plan that identifies various projects that are underway or that the OIG plans to address in the near future in furtherance of its mission.[1] As a result, a key component of every physician practice compliance program should include monitoring and assessing how items included in the OIG’s Work Plan may impact the practice and its operations.
Looking ahead
By monitoring the Work Plan, a physician practice can be proactive and make any necessary changes to ensure continued compliance in certain key risk areas identified by the OIG. Looking ahead to 2019, physicians and physician groups should be aware of the following Work Plan items.
Opioids
In light of the ongoing national opioid crisis, it’s no surprise that the current OIG Work Plan includes several items that focus on opioid-related issues, including oversight of opioid prescribing in selected states and addressing related issues. Physicians who prescribe opioids should pay attention to state-level oversight activities and confirm that their prescribing practices strictly comply with all applicable state and federal rules.[2]
Medicare billing and documentation compliance
The OIG has identified a number of specific areas of concern related to Medicare billing and documentation requirements, including the following six key areas:
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Critical care billing
The OIG is reviewing whether Medicare payments for critical care are appropriate and paid in accordance with Medicare requirements. The OIG’s focus is on the direct delivery of care by physicians for critically ill or critically injured patients, regardless of the location in which the care is rendered. Because reimbursement for critical care physician services is time-based, physicians should ensure that their records support the codes they have billed, and that the records reflect and support the time spent by the physician evaluating the patient, providing care, and managing the patient’s care.[3]
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Outpatient cardiac and pulmonary rehab
The OIG has expressed ongoing concern with respect to improper Medicare payments for outpatient cardiac and pulmonary rehabilitation services. In 2019, the OIG intends to continue assessing whether Medicare payments for these services are allowable in accordance with Medicare requirements. In order for cardiac and pulmonary rehab services to be covered by Medicare, the services must be medically necessary and comply with specific documentation requirements. Physicians who regularly order and perform cardiac and pulmonary rehab services should periodically audit their records to confirm that they support medical necessity and satisfy all necessary documentation requirements.[4]
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Off-the-shelf orthotics
The Centers for Medicare & Medicaid Services (CMS) has identified three off-the-shelf orthotic devices for which charges have grown significantly since 2014 and that have resulted in improper payment rates as high as 79%. The devices are lumbar-sacral orthoses and knee orthoses represented by CPT codes L0648, L0650, and L1833. A top concern for CMS is a lack of documentation of medical necessity in patients’ medical records for these three devices. Therefore, the OIG intends to examine factors associated with questionable billing for these three devices, including whether the devices were supplied in the absence of an encounter with the referring physician within 12 months prior to their orthotic claim. Any physician who orders or supplies orthotic devices should review their records and confirm that they reflect medical necessity and satisfy related documentation and billing requirements.[5]
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Medicare Part B ESRD services
The OIG has previously identified inappropriate payments for outpatient dialysis services provided to patients diagnosed with end-stage renal disease (ESRD). The OIG will continue to review claims for treatment of ESRD to determine whether such services complied with Medicare requirements, including whether there is sufficient documentation to support medical necessity and whether the services were ordered by a physician who was treating the patient. Physicians who order and/or provide dialysis services for ESRD patients should review their records and confirm that they are medically necessary and satisfy related documentation and billing requirements.[6]
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Post-operative services
The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) required the OIG to audit and verify data collected by CMS with respect to post-operative services included in global surgery payments. In connection with this mandate, the OIG will review and verify the accuracy of the number of post-operative visits reported to CMS by physicians. Any physician who submits claims for post-operative services should review the claims and related records for compliance with applicable Medicare billing requirements.[7]
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Hospice payments
Prior reviews by the OIG have identified improper payments made to providers that should have been covered under per diem payments made to hospice organizations. Following the completion of these reviews, the OIG will: (a) produce summary data on all Medicare payments made outside the hospice benefit, without determining the appropriateness of such payments; and (b) conduct separate reviews of selected individual categories of services (including physician services) to determine whether payments made outside of the hospice benefit complied with CMS requirements. Any physician who provides services to patients with a terminal illness should be confirming whether the patient is also receiving hospice benefits and, if so, should take steps to ensure that no claims are submitted for services that are covered by the per diem payments made to the patient’s hospice.[8]