November 2001
Volume 65 |
Number 11
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PRACTICE
MANAGEMENT
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| Beware the Aggressive Advice
of Billing Consultants |
Karin Bierstein, J.D.
Assistant Director of Governmental Affairs (Regulatory)
Most consultants seek to offer correct advice on billing, compliance
and other practice management subjects. The government is concerned,
however, that some consultants push the envelope too far when helping
their clients to maximize revenues. On June 27, 2001, the Health
and Human Services Office of the Inspector General (OIG) issued
a Special Advisory Bulletin to alert providers to certain consultant
practices, and the Government Accounting Office (GAO) released a
report on consultants’ billing advice requested by Senator
Charles E. Grassley (R-IA).
GAO Report
The executive summary of the GAO report reveals three revenue-enhancing
practices of particular concern:
• not reporting or refunding overpayments by insurance carriers
• performing unnecessary tests and procedures to support
claims for higher-level evaluation and management services
• attempting to deflect patients with low-paying insurance
plans such as Medicaid by limiting services provided to them and
by scheduling their appointments for inconvenient times.
The GAO had sent a physician and a criminal investigator to workshops
titled “How to Run a More Profitable Practice” and “Creating
a 7-Step Compliance Plan/Audit-Proof Your Practice.” The
workshop presenters, according to the report, advocated the strategies
listed.
The first strategy addresses an issue that many anesthesiologists
have raised, in various contexts. Overpayments that must be refunded
are those resulting from clear errors and not simply differing
interpretations. Errors arising from outright ignorance of billing
requirements, for example, or from improper programming in either
the practice’s or the carrier’s computer systems tend
to grow very quickly into thousands of dollars of overpayments.
(They may also result in huge underpayments, but that is a different
problem.) There is a legitimate concern that reporting a significant
dollar amount of overpayment may trigger a Medicare audit. Moreover,
most anesthesia practices will not have $20,000 or $50,000 on
hand upon discovery of a large overpayment.
For smaller amounts, especially where the practice’s self-audit
turns up every instance of the erroneous bill or payment so that
there is no apparent need to check the universe of claims filed
for the relevant time period, sending a check with a simple but
dispositive explanation should not lead to further Medicare review.
One anesthesia group recently determined that the carrier had
been multiplying time units by ten, resulting in overpayments
worth tens of thousands of dollars, and was advised to contact
the carrier with a proposed schedule for repayment over time without
interest. The group specified in its letter that if the carrier
did not respond, it would assume that the proposed schedule had
been accepted. It may be advisable, when 5-figure amounts are
in issue, to arrange the refund through an attorney.
The Medicare agency (then the Health Care Financing Administration)
issued a Program Memorandum telling carriers how to handle unsolicited
refunds in May 2000. The Program Memorandum gives the carriers
a list of questions to ask the provider; the list is a useful
guide to the information that physicians should include in letters
accompanying refund checks. Readers may consult the “Practice
Management” column in the July 2000 issue of the NEWSLETTER
for further information.
The other two strategies of special interest to the GAO present
fewer problems for anesthesiologists. Evaluation and management
services are not a major part of most anesthesiologists’
livelihood. Patients with poor insurance coverage may not be the
most popular, but their access to anesthesia care cannot be blocked
by scheduling shenanigans. Denying labor epidurals to Medicaid
patients may be a breach of a participation agreement or of a
contract with a hospital — not to mention the source of ugly
publicity — but it is not covered by billing rules. Although
other laws may be violated by discrimination against patients
on the basis of their insurance status, the fraud and abuse laws
cannot. Anesthesiologists should read between the lines, though
and keep in mind the government’s general concern with upcoding
and billing for “medically unnecessary” services, as
well as with Medicare and Medicaid patients’ access to care.
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How Badly Is Medicare Underpaying You?
Anesthesiologists know all too well that Medicare
pays them less, relative to private payers, than it
does other physicians. In connection with our ongoing
efforts to obtain an increase in the anesthesia conversion
factor, Alexander A. Hannenberg, M.D., chair of the
Committee on Economics prepared the stark comparison
in Figure 1 below:
Data Sources:
ALL PHYSICIANS: 1998 Values
Gallagher PE, Smith SL, eds. Medicare RBRVS: The Physicians
Guide. American Medical Association, 2000:119.
Commercial RBRVS CF value raw average of nongovernmental
payers cited ($48.02); Medicaid ($26.31); Medicare
($36.68).
See also: Physician Payment Review Commission Annual
Report to Congress. 1996:216.
ANESTHESIOLOGISTS
Commercial Anesthesia CF: Bierstein K. Fees paid for
anesthesia services: 1999 survey results. ASA Newsl.
63(8):23. (Frequency wtd average of 235 payers cited
in February 1999 survey = $43.52). Medicaid: 1998
ASA Survey of 29 states' Medicaid CF for programs
using Base+Time methodology = $17.19. Medicare 1998
Anesthesia National Avg CF = $16.88.
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OIG Special Advisory Bulletin
On the same day as the GAO sent its report to Senator Grassley,
the OIG issued its special bulletin regarding “Practices
of Business Consultants.” The OIG’s intent was to warn
physicians and other providers about “a small minority of
unscrupulous consultants” by listing some of the latters’
hallmark marketing practices. The OIG advises providers who engage
consultants to be alert to the following:
• Illegal or Misleading Representations. Any claim
to have “inside access” or some form of approval or
certification by Medicare is suspect. Consultants may improperly
use Medicare or CMS logos or symbols in their marketing materials,
or suggest that attending their programs is a prerequisite for
keeping a provider number.
• Promises and Guarantees. Promising a prospective
client that hiring the consultant will produce a specific percentage
increase in collections may lead to the submission of false claims.
• Encouraging Abusive Practices. If a consultant
recommends that a client use billing codes that could generate
higher payment than the correct codes and especially if the consultant
discusses ways to avoid detection, the practice should be leery.
Anesthesiologists report that some consultants advise them to
interpret laws and regulations in ways that are clearly inconsistent
with the intent of the Medicare program. There are many, many
perplexing questions as to the correct interpretation of anesthesia
billing regulations – can you perform pain blocks while medically
directing other cases is one of the most frequently asked —
but a trustworthy consultant will make sure that you know both
the conservative and the practical interpretation (if they differ).
• Discouraging compliance efforts. Advice to skip
self-audits or refunds of overpayments, as discussed in the GAO
report, or not to cooperate with a Medicare audit should raise
suspicion.
In the concluding words of the OIG, “In general, if a consultant’s
advice seems too good to be true, it probably is.” It is
crucial that the consultant be honest as well as knowledgeable.
Given that anesthesia practice management is unique in many respects,
it is most important that your consultant have specific and extensive
anesthesia experience – which restricts the field of potential
consultants considerably. Recommendations from anesthesiologists
whom you trust are one of the best forms of protection in selecting
your own advisors.
OIG Workplan for 2002—Are You Vulnerable?
Anesthesiologists need to be familiar with the OIG’s workplan
for each year in order to understand which billing practices are
targeted for particular attention. Compliance consultants should
be able to explain precisely the relevance and application of
the targeted practices to anesthesia. For 2002, in the area of
physician services, some of the “studies” and “initiatives”
will focus on:
• Evaluation and management services – visits and consultations.
Recall the second improper strategy in the GAO report discussed
above; the OIG is clearly concerned with upcoding and documentation.
• “Incident-to” services. Pain medicine specialists
are more likely than most anesthesiologists to bill for the services
of physician assistants or nurse practitioners that are incident
to their own professional services. The incident-to rules do not
apply to billing for nurse anesthetists, but they do give ample
scope for leveraging the work of other allied health providers
in the employ of physicians. The OIG’s questions relate to
the “quality and appropriateness of these billings.”
• Teaching physicians. Following numerous audits of teaching
hospitals, the OIG remains quite suspicious of compliance with
the teaching rules.
• Moonlighting residents. Residents may bill Medicare
only when they are moonlighting, defined as “providing medical
treatment, other than in their field of study, in an outpatient
clinic or emergency room.” This issue may arise in the context
of anesthesiology residents or fellows moonlighting in a pain
clinic. Arguing that such work is “other than in their field
of study” may be difficult.
Source Materials:
1. OIG Special Advisory Bulletin on Practices of Business Consultants:
<http://www.dhhs.gov/
progorg/oig/frdalrt/consultants.pdf>.
2. GAO Report, “Consultants’ Billing Advice May Lead
to Improperly Paid Insurance Claims: <http://www.gao.gov/cgi-bin/getrpt?gao-01-818>.
3. Program Memorandum on Voluntary Refunds: <http://www.hcfa.gov/pubforms/transmit/AB004160.pdf>.
4. OIG workplan for 2002: <http://www.dhhs.gov/
progorg/oig/wrkpln/2002/CMS.pdf>.
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