January 1999
Volume 63 |
Number 1
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PRACTICE MANAGEMENT
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| Should You Ever
Voluntarily Disclose Medicare Billing Problems? |
Karin
Bierstein,
Practice Management Coordinator
The Office of the Inspector General (OIG), the investigative
arm of the Health Care Financing Administration (HCFA), published
a "Provider Self-Disclosure Protocol" in late October. The purpose
of this protocol is to "help a health care provider initiate with
OIG a dialogue directed at resolving its potential liabilities"
for Medicare billing irregularities.
Until now, there has not been any formal model or program for
physicians to initiate such a dialogue. A small number of home
health agencies, skilled nursing facilities, durable medical equipment
suppliers and hospice providers in five large states participated
in a pilot voluntary disclosure program between 1995 and 1997.
The results of the pilot study clearly have been encouraging to
HCFA. Does voluntary disclosure offer any advantages for anesthesiologists
who believe they may have billed Medicare in violation of the
many applicable regulations?
In two words, probably not. Lawyers who have represented anesthesiologists
with potential Medicare problems are not enthusiastic. Going to
the OIG before the OIG comes to you is no guarantee of a lesser
penalty. Indeed, the OIG has no authority to prevent a criminal
prosecution by the Justice Department.
The self-disclosure protocol is best suited to larger corporations,
especially those subject to public reporting requirements. Preparing
the written submission required by the OIG (including descriptions
of the internal investigation performed and of the corporate response
to the problem, and completion of an internal financial assessment)
is a very onerous process. Once the OIG receives the submission,
it will search for any and all instances of fraud and will not
necessarily limit its examination to the issues identified by
the health care provider.
Although the OIG's announcement specifies that the protocol
is open to individuals as well as groups and corporations, it
may not offer the best way to resolve an anesthesia practice's
billing issues, especially if the irregularities do not suggest
fraud. The protocol itself states that it is not the appropriate
vehicle for addressing overpayments or honest errors. When an
anesthesia practice discovers that it has received an overpayment
or series of overpayments, the best solution may sometimes be
to send the carrier a check with a brief explanation. This might
be the case if the overpayment is due to a simple misunderstanding
of the rules and not due to any intent to bilk the system, and
if it is possible to calculate the amount in question. As an example,
an anesthesiologist who had billed for a continuous epidural on
the days following insertion of the catheter using code 62279
instead of 01996 might be able to tally the cases of miscoding
and compute a total amount. The anesthesiologist's refund to the
carrier would be accompanied by a letter stating succinctly that
the practice had discovered an overpayment in the enclosed amount,
attributable to a lack of awareness of the more appropriate code,
and that the practice had taken specific steps to prevent the
problem from recurring.
The OIG's announcement of the self-disclosure protocol notes
the direct-refund option for "matters exclusively involving overpayments
or errors that do not suggest that violations of law have occurred."
It also emphasizes that if the carrier "concludes that the overpayment
raises concerns about the integrity of the provider," it may refer
the matter to the OIG for investigation of possible fraud.
Whether the provider's "integrity" is on the line will often
be a subjective judgment call. Once an anesthesia practice has
uncovered an apparent pattern of overbilling Medicare that involves
sums of money large enough to interest the OIG (this amount will
vary across the country), it should consult an experienced attorney
in determining how best to minimize its liability for fraud. In
addition to the direct-refund option and the formal voluntary
disclosure protocol established by the OIG, there are other options
such as counsel's sounding out the U.S. Attorney's office on behalf
of a client whose identity will not be disclosed until an agreement
is reached on restitution and any penalties. Some of the important
points to remember when considering how to handle a Medicare overpayment
situation are the following:
- If you do nothing else, take steps to ensure that the problem
will not recur, and document those steps. Should there ever
be a governmental investigation, evidence of self-correction
will temper evidence of fraudulent intent.
- An internal audit may yield reports that the OIG or U.S.
Attorney would be entitled to see, unless the reports are subject
to the attorney work product privilege. To protect the confidentiality
of the reports, the audit should be requested and directed by
legal counsel.
Compliance With Medicare and Other Payor Billing Requirements,
the manual published by ASA in 1997, discusses voluntary disclosure
and related issues.
New Compliance Guide for Billing Companies
Of related interest, the OIG has just posted a new compliance
guide for billing services at http://www.dhhs.gov/progorg/oig/modcomp/thirdparty.htm.
These guidelines are similar to the hospital compliance program
guidelines published in February 1998. They require that a billing
company compliance plan include, at a minimum, the following seven
elements:
- Written standards of conduct, as well as written policies
and procedures promoting compliance;
- The designation of a chief compliance officer and a corporate
compliance committee if appropriate;
- Employee education and training programs;
- A hotline or similar mechanism for anonymous reports;
- A system to respond to allegations of improper/illegal activities
including disciplinary action;
- The use of audits and/or other risk evaluation techniques
to monitor compliance; and
- The investigation and correction of identified systemic problems.
In the billing service guidelines, the OIG lists once again
the "risk areas" in which the agency is especially interested.
The following are relevant to anesthesiologists:
- Billing for items or services not actually documented;
- Unbundling;
- Upcoding,
- Inappropriate balance billing;
- Inadequate resolution of overpayments;
- Lack of integrity in computer systems;
- Computer software programs that encourage billing personnel
to enter data in fields indicating services were rendered though
not actually performed or documented;
- Failure to maintain the confidentiality of information/
records;
- Knowing misuse of provider identification numbers;
- Duplicate billing in an attempt to gain duplicate payment;
- Failure to properly use modifiers;
- Routine waiver of copayments and billing third-party insurance
only; and
- Discounts and professional courtesy.
'Black Box Edits' Include Invasive Monitoring Lines
Denials of Medicare claims for services performed after October
1, 1998, the date of implementation of the black box edits purchased
from a commercial enterprise by HCFA have begun to surface. As
predicted in the "Practice Management" column in the September
issue of the NEWSLETTER, the new edits appear to include
Swan- Ganz and central venous pressure procedures. When these
two codes (93503 and 36489) are billed together, Medicare will
deny payment for one of them.
There are some instances in which insertion of a Swan Ganz catheter
and insertion of a CVP line are truly separate procedures and
should be paid accordingly. The Committee on Economics and ASA
Washington Office staff are looking into the issue and its potential
remediation.
There have also been reports, as yet unsubstantiated, that the
new edits include arterial lines billed with a CVP or Swan Ganz.
Such rebundling would be clearly unacceptable, and ASA would take
whatever action is necessary if it were established that Medicare
is now refusing to pay for arterial lines billed on the same claim
as a Swan Ganz or CVP catheter.
Please advise Karin Bierstein by e-mail <k.bierstein@
asawash.org> or by fax (202-371-0384) if you have encountered
the arterial line problem. Include the CPT codes involved, the name
and location of the carrier, and any rationale stated on the Explanation
of Benefit Form.
Deadline for Comments on ASC and HOPD Services Proposed Rules
Extended Again
The new deadline for comments on the ambulatory surgical center
(ASC) and hospital outpatient department (HOPD) proposals is March
8, 1999. HCFA will not implement any changes in the facility payments
until after Januar, 2000, which should give the agency ample time
to consider a huge volume of comments.
ASA is still refining and documenting our objections to the
proposed reductions in payments to ASCs and HOPDs for epidurals
and nerve blocks. Thank you to the ASA members who have sent us
copies of their letters to HCFA.
Two New Publications From the Committee on Economics
Medicare & Anesthesia Reimbursement Methods: Why the
Medicare Fee Schedule Is the Wrong Benchmark for Commercial Anesthesia
Payments
Committee member Alexander A. Hannenberg, M.D., has written
a monograph with seven distinct arguments demonstrating that the
Medicare Fee Schedule undervalues anesthesia. The arguments include
quantitative analyses of hourly rates across various services
(the hourly rate for anesthesia for open reduction of an ankle
fracture is 50 cents greater than for an orthotics fitting and
$6.83 lower than the hourly rate for aquatic therapy exercises!)
and comparisons of aggregate changes in Medicare payment for surgery
and anesthesia.
The monograph was prepared as a slide presentation accompanied
by narrative explanations. It is available as a booklet that may
be copied onto transparencies or, alternatively, it is offered
in an electronic version as a Microsoft PowerPoint file (NOTE:
You must own a copy of the PowerPoint software program to use
the diskette provided by ASA). To order a copy, contact the
ASA Publications Department.
Booklets are $10 each; diskettes are $15.
1999 CROSSWALK™
The newest edition of the ASA CROSSWALK, which matches
anesthesia CPT codes to surgical procedure CPT codes, represents
a major overhaul. One thousand and sixteen changes were recommended
by five members of the Committee on Economics, who spent three
days on this project in early October. Stanley W. Stead, M.D.,
chaired the task force.
Some of the revisions were based on user feedback, for which
the Committee is always grateful. As a result of one user suggestion,
the 1999 edition of the CROSSWALK will contain a condensed
version of the ASA Relative Value Guide as an appendix.
The review revealed several weaknesses in the anesthesia codes
and descriptors contained in the ASA Relative Value Guide (and
CPT). The task force members made notes on those deficiencies
for consideration by the full committee during the coming year.
Other generic issues regarding the organization and content of
the RVG were also raised and will be submitted to the full committee
for discussion and appropriate action.
The 1999 CROSSWALK will be available from the ASA
Publications Department in booklet form for $75 per copy or
on diskette for $150 for members or $250 for nonmembers.
Medicare Will Again Start Paying for Nerve Blocks Billed Together
With an Anesthetic
If you submitted claims to Medicare for nerve blocks performed
in conjunction with certain shoulder and leg surgeries in 1998
and were denied payment, you should resubmit the claims.
HCFA has agreed that the anesthesia service and the nerve block
placed for postoperative pain control may be separate procedures.
The "Correct Coding Initiative" software used by all Medicare
carriers to kick out disallowed code pairs has been corrected,
effective January 1, 1999, so that nerve blocks identified by
the "-59" modifier on the claim form will once again be payable.
The correction is retroactive.
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