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Payor Audits: Preparation, Response and Opportunities July 29, 2010 David E. Jose, Esq. One Payor Audits: Preparation, Response and Opportunities July 29, 2010 David E. Jose, Esq. One Indiana Square, Suite 2800 Indianapolis, IN 46204 (317) 238 -6211 [email protected] com

Audits: Here, There and Everywhere § External audits increasingly common § Use of audits Audits: Here, There and Everywhere § External audits increasingly common § Use of audits as mechanism to recoup “overpayments”, but other purposes and consequences § Financial, regulatory and criminal penalties associated with billing “errors”

Audits: Here, There and Everywhere § Recognize threats and opportunities posed by external audits Audits: Here, There and Everywhere § Recognize threats and opportunities posed by external audits § Compliance program needs to include a credible internal audit system § Internal audit system addresses external audit, quality of care and performance improvement purposes

Topics for Presentation § § Appreciating the Context for Audit Activity RAC Audits as Topics for Presentation § § Appreciating the Context for Audit Activity RAC Audits as a Representative Sample Preparing for and Responding to an Audit Learning from the Audit

Constituencies § § § § Government Payers Commercial Payers Enforcement Authorities Civil Lawsuits Other Constituencies § § § § Government Payers Commercial Payers Enforcement Authorities Civil Lawsuits Other Treating Providers Staff Patients Competitors

Sources for Concern § Disgruntled Employees § Disgruntled Patients • Senior Medicare Patrol § Sources for Concern § Disgruntled Employees § Disgruntled Patients • Senior Medicare Patrol § Increase Awareness of Whistleblowing Opportunities § News Reports

OIG Testimony § ROI of $17 for $1 of Medicare and Medicaid Oversight § OIG Testimony § ROI of $17 for $1 of Medicare and Medicaid Oversight § FY 2008 • • 455 Criminal Actions 337 Civil Actions 3, 129 Excluded Individuals and Entities 1, 750 New Fraud Investigations Opened

OIG FY 2010 Report § § $3. 1 Billion for first half of FY OIG FY 2010 Report § § $3. 1 Billion for first half of FY 2010 $667 Million in Audit Receivables $2. 5 Billion in Investigation Receivables 293 Criminal and 164 Civil Actions

Government Enforcement Activities § Amounts Recovered • “Fraud” • Reducing Expenditures § High Profile Government Enforcement Activities § Amounts Recovered • “Fraud” • Reducing Expenditures § High Profile Practices and Activity § Trolling for Excluded Individuals § Increased Funding Under Reform

OIG 5 -Principle Strategy § Scrutinize enrollment § Establish payment methodologies responsive to marketplace OIG 5 -Principle Strategy § Scrutinize enrollment § Establish payment methodologies responsive to marketplace § Assist providers in adopting practices promoting compliance, including quality and safety standards § Vigilantly monitor fraud, waste and abuse § Respond swiftly and impose punishment to deter

Examples from OIG § Medicaid vulnerabilities relating to schoolbased services § 2010 Work Plan Examples from OIG § Medicaid vulnerabilities relating to schoolbased services § 2010 Work Plan focus on provider-based status § Implications • Site-based services • Physician partnering relationships • Procedures vs. outcomes billing debate

RAC Audits Expanding § Health care reform extends RAC program to state Medicaid programs RAC Audits Expanding § Health care reform extends RAC program to state Medicaid programs § Recent support in other areas of government contracting announced by President Obama

RAC Audits – What Can Be Learned § Automated vs. Complex Review § Priority RAC Audits – What Can Be Learned § Automated vs. Complex Review § Priority of Targeted Providers (Volume and Value) § Targeted Claims • • Medical Necessity Coding Incorrect Payments Duplicate Claims § Contingency Fee Payments for Independent Audit Contractors

Issues for Claims Review Process § “Certainty Standard” vs. “Good Cause Reason” § Request Issues for Claims Review Process § “Certainty Standard” vs. “Good Cause Reason” § Request for medical records and timely response § Licensed health care professional involvement § Notice of full or partial overpayment § Recoupment options and time frames

RAC Appeals Process § Rebuttal to auditor vs. direct appeal § Redetermination Appeal • RAC Appeals Process § Rebuttal to auditor vs. direct appeal § Redetermination Appeal • Avoiding recoupment pending appeal § Reconsideration – Qualified Independent Contractors § Administrative Law Judge • First judicial-type review • Review can go beyond “the record” § Medicare Appeals Council Review § Federal District Court Review

RAC Management Program § Enhancements to Compliance Program § Focus on Target Areas (e. RAC Management Program § Enhancements to Compliance Program § Focus on Target Areas (e. g. , one-day stays) § Timely Response to Records Requests § File Rebuttals and Appeals § Tracking System § Corrective Actions § Opportunities for Improvement

Preparation for Audits § Review Policies • Clinical documentation • Financial billing and collecting Preparation for Audits § Review Policies • Clinical documentation • Financial billing and collecting • Responding to audit inquiries § Identify Risk Areas § Train Employees § Protocols for Pre- and Post-Audit

Issues for Billing Audits § Retrospective or Prospective § Sample Type and Size • Issues for Billing Audits § Retrospective or Prospective § Sample Type and Size • Random • Payer specific • Procedure specific § Issue or Criteria to be Applied § Risk Areas • • Coding Documentation Modifiers Medical Necessity

Top Medicare Billing Errors § § § § § Duplicate Non-Covered Service Medical Necessity Top Medicare Billing Errors § § § § § Duplicate Non-Covered Service Medical Necessity Bundled Services Beneficiary Eligibility Incorrect Carrier Medicare Secondary Payer Provider Eligibility Place of Service

OIG Risk Areas § Documentation • Timely • Accurate and legible • Complete (e. OIG Risk Areas § Documentation • Timely • Accurate and legible • Complete (e. g. , reason for encounter, history, examination findings, diagnostic test results, etc. ) • Comparison of denial rates with peer practices

OIG Risk Areas § Reasonable and Necessary Services • Documenting diagnosis and treatment • OIG Risk Areas § Reasonable and Necessary Services • Documenting diagnosis and treatment • Seeking denial for secondary payer

OIG Risk Areas § Coding and Billing • Services not rendered • Supplies or OIG Risk Areas § Coding and Billing • Services not rendered • Supplies or services not reasonable and necessary • Duplicate billing • Non-covered services • Unbundling • Clustering • Upcoding

OIG Risk Areas § Improper Inducements and Relationships • Financial arrangements with potential referral OIG Risk Areas § Improper Inducements and Relationships • Financial arrangements with potential referral sources • Joint ventures • Consulting contracts or medical directorships • Office and equipment leases • Gifts and gratuities

“Medical Necessity” § “… unless otherwise required by statute or regulation, means that a “Medical Necessity” § “… unless otherwise required by statute or regulation, means that a Health Service is compensable, as determined by [Insurer] for the treatment of an injury, sickness, or other health condition and is : (1) appropriate and consistent with the diagnosis or symptoms, and consistent with accepted medical standards; (2) not chiefly custodial in nature; (3) not investigational, experimental or unproven; (4) not excessive in scope, duration or intensity…; and (5) not provided only as a convenience to the Covered Individual or professional provider or health care facility. ”

Background Preparations § Web Site of Commercial Payers • Provider education • Binding (? Background Preparations § Web Site of Commercial Payers • Provider education • Binding (? ) pronouncements § Web Site of Government Payers and Agencies • OIG web site for Corporate Integrity Agreements § Web Sites of Audit Contractors • Targeted issues

Audit Coordinator § Advising personnel of pending audit § Ensuring authorization for disclosure of Audit Coordinator § Advising personnel of pending audit § Ensuring authorization for disclosure of records § Gathering records § Overseeing auditor’s on-site activity § Organizing exit interview § Follow-up communications with auditors for clarifications or additional documents

American Association of Medical Audit Specialists § Billing Audit Guidelines § Use as Standards American Association of Medical Audit Specialists § Billing Audit Guidelines § Use as Standards • Internal audit • External auditor relationship § Purpose for Health Records

Purpose for Health Record § “Health records exist primarily to ensure continuity of care Purpose for Health Record § “Health records exist primarily to ensure continuity of care for a patient; therefore, the use of a patient’s health record for an audit must be secondary to its use in patient care. ” - American Assoc. of Medical Audit Specialists

Preparing to Respond § Tracking System and Specific Payer/Authority § Time Frames, Issues Raised, Preparing to Respond § Tracking System and Specific Payer/Authority § Time Frames, Issues Raised, and Documentation Needed § Medical Necessity or Coding Assistance § Internal or External Assistance (including peer and association support) § Statistical Issues § Costs, Benefits, Distractions, and Consequences

Repayment or Recoupment § § Regular Repayments Provider Self-Disclosure Protocol Audit Appeal Settlement ** Repayment or Recoupment § § Regular Repayments Provider Self-Disclosure Protocol Audit Appeal Settlement ** New obligation to repay within 60 days of “knowledge”

Audits with Potential Criminal Exposure § § Confidentiality Compliance with Subpoenas Legal Ethics Joint Audits with Potential Criminal Exposure § § Confidentiality Compliance with Subpoenas Legal Ethics Joint Defense Arrangements

Preparing to Appeal § § § Time Frames for Each Stage Venue and Issues Preparing to Appeal § § § Time Frames for Each Stage Venue and Issues Importance of the Record Repayment vs. Delay Designated Staff Assistance Getting the “F-Word” Off the Table

Medicare Audit Defenses: What Can Be Learned? § “I’m right, you’re wrong, and here’s Medicare Audit Defenses: What Can Be Learned? § “I’m right, you’re wrong, and here’s why. ” § “Treating Physician Rule” • Best position to opine on medical necessity for patient § Waiver of Liability” • Clarity of contract and provider communications § Provider Without Fault”

AMA Report on Claims Processing Accuracy § Claims processing inaccuracies cost $15. 5 Billion AMA Report on Claims Processing Accuracy § Claims processing inaccuracies cost $15. 5 Billion § Potential for errors in commercial audits § Most accurate: Coventry @ 88. 41% § Least accurate: Anthem @ 73. 98%

Creative Arguments § § § Context for the Services Supporting Documentation Technical vs. Fundamental Creative Arguments § § § Context for the Services Supporting Documentation Technical vs. Fundamental Defect Late Entries and Affidavits Engaging Legal Counsel for Settlement

Operational Benefits from the Audit § Policies and Procedures on Outside Investigations • More Operational Benefits from the Audit § Policies and Procedures on Outside Investigations • More than payer audits § Enhanced Corporate Compliance Program • Improvements to internal self-audits • Connecting audits, compliance and quality § Improved Payer Communications § Getting Off the “Radar Screen” § Limiting Repayments

OIG Corporate Integrity Agreement § Employee Training • Covering a variety of topics § OIG Corporate Integrity Agreement § Employee Training • Covering a variety of topics § Engagement of Independent Review Organization § Claims Review Process § Repayment of Overpayments’ § Reporting of “Reportable Events”

Mandatory Compliance Programs § Health care reform legislation authorizes mandated compliance programs § Mandated Mandatory Compliance Programs § Health care reform legislation authorizes mandated compliance programs § Mandated core elements § Potential rigorous self-auditing and selfreporting features § Potential penalties for not having a credible program

Compliance and Audit Functions § Importance of independence from operations § Clear lines of Compliance and Audit Functions § Importance of independence from operations § Clear lines of reporting and authority § Management responsible for compliance and controls § Collaborative support for investigations § Ensure follow-up on recommendations

Audits, Risks and Quality § § § Regulatory Compliance Medical Performance Medical Records Patient Audits, Risks and Quality § § § Regulatory Compliance Medical Performance Medical Records Patient Safety Supervision

Questions David E. Jose, Esq. Krieg De. Vault LLP One Indiana Square, Suite 2800 Questions David E. Jose, Esq. Krieg De. Vault LLP One Indiana Square, Suite 2800 Indianapolis, IN 46204 [email protected] com Office: (317) 238 -6211 Cell: (317) 695 -1084 Fax: (317) 636 -1507