Post By Eric Rubenstein, Director, Litigation, Fraud Waste and Abuse Support, Advize Health LLC, firstname.lastname@example.org
Every compliance professional hopes that their employer buys into the suggestions, recommendations and ideas that are espoused for a robust compliance program. What about those providers who just do not want to accept that the current set of conditions, given the aggressive enforcement and data analytics out there are going to lead to audits, overpayments or even worse, criminal investigations?
We recently found ourselves in this very situation. In my past life, I was the criminal investigator for healthcare fraud matters. I worked as a Special Agent for HHS-OIG for over 20 years, and was always amazed how a little bit of compliance forethought would have gone a long way. In thinking about this compliance quandary, it made me realize that locks are on doors to keep honest people, well, honest. An unscrupulous provider is less concerned with compliance, and more concerned with not getting caught and increasing revenue.
We worked on a project with a provider who was the subject of three probe audits by Medicare. The first two probe audits resulted in abysmal error rates: in excess of 75% on each of the two audits. The provider was educated, and underwent a third audit with equally poor results as the first two. We were brought in to review the initial two audits, to determine if we agreed with the Medicare auditor’s findings. In conducting our review, we agreed with each and every finding the Medicare auditor identified. What was more concerning to us was the fact that the provider, who claimed to not do any evaluation and management related services, billed a lot of those codes.
The provider was in complete denial. What compounded the problem was the fact that the provider who owned the practice, continued to argue that the doctors in the practice “do not code.” I held an office “superbill” up (which listed every potential CPT and HCPCS code that was used in the practice), and asked the provider who circled the various codes that were used for billing. The provider, with a bit of hubris, stated that whomever was treating the patient would circle the code. Yes, he acknowledged that the treating provider circled the code, but did not consider that to be coding.
From a variety of perspectives, this presents huge compliance issues. If I placed my former law enforcement agent hat back on, it at least creates a situation where the provider was, at a minimum, showing what is known as “reckless disregard” with respect to the submission of claims to the Medicare program. As such, at a minimum, this provider has a potentially huge civil problem in regard to the submission of claims. Given the overwhelming denial rate on the probe sample and the provider’s stance that the providers in the group do not code (but really do), it warranted a discussion with the practice manager.
Practice managers often fit into several levels of professional experience. Many that I have met in my prior career, started as a receptionist, moved into billing, became a supervisor or manager, and ultimately the practice manager. In other instances, the practice manager is a person with professional managerial training. Many have additional compliance training, and fully understand the pitfalls of improper or poor compliance programs.
This particular practice manager was more the former than the latter. She was knowledgeable in billing and coding, and understood the issues I presented to her. Of course, there were a few eye rolls when I asked if the owner of the practice understood what I was presenting with respect to the coding of the “superbills.” She apparently had similar conversations with the provider over the years as well.
The solution, however, is simple: conduct a statistically valid random sample (SVRS) to identify the potential overpayment, make a self-disclosure to the OIG, and create a compliance environment with an outside auditing firm doing routine audits to ensure compliance with accepted billing and coding guidelines. This will undoubtedly include the provision of education and training of the entire medical staff to ensure documentation is supporting the code that is being submitted. The provider was reluctant, feeling that the doctors in the group were too busy treating patients to deal with the menial process of properly documenting and circling codes.
Using my experience as a retired OIG agent, I gave the provider the list of potential “bad things” that would happen if the correct course of action was not taken. The last of which was that the local Medicare contractor will refer the matter to the Unified Provider Integrity Contractor (UPIC) for further investigation. About a week after we had the initial meeting to discuss the plan of action, the UPIC began contacting the provider’s patients, inquiring about the services the patients received.
With data analytics being strong, coupled with the ability to develop methodologies for increased scrutiny of claims data becoming better each day, this is a key example of why some basic compliance steps (training, education, third-party audits) would have saved this provider a lot of stress and money.