09.22.16 - HANDOUT Illinois - Audit Bait Wolfberg... · 2016. 9. 26. · 2016 Page, Wolfberg &...

Audit Bait

Presented by Douglas M. Wolfberg

www.pwwemslaw.com

5010 E. Trindle Road, Suite 202

Mechanicsburg, PA 17050 717-691-0100

717-691-1226 (fax) [email protected]

Disclaimer:

These seminar materials are designed to provide an overview of general legal principles and should not be relied on as legal advice. You should seek advice from an attorney if

you have particular factual situations related to the materials presented here.

© COPYRIGHT 2016, PAGE, WOLFBERG & WIRTH, LLC. ALL RIGHTS RESERVED. REPRODUCTION BY ANY MEANS EXPRESSLY

PROHIBITED WITHOUT THE WRITTEN CONSENT OF PAGE, WOLFBERG & WIRTH, LLC.

2016

Page, Wolfberg & Wirth, LLC ● 5010 E. Trindle Rd., Ste. 202 ● Mechanicsburg, PA 17050 www.pwwemslaw.com ● 717-691-0100 ● Fax – 717-691-1226

Douglas M. Wolfberg, Partner [email protected]

Doug Wolfberg is a founding partner of Page, Wolfberg & Wirth, and one of the best known EMS attorneys and consultants in the United States. Widely regarded as the nation’s leading EMS law firm, PWW represents private, public and non-profit EMS organizations, as well as billing companies, software manufacturers and others that serve the nation’s ambulance industry. Doug answered his first ambulance call in 1978 and has been involved in EMS ever since. Doug became an EMT at age 16, and worked as an EMS provider in numerous volunteer and paid systems over the decades. Doug also served as an EMS educator and instructor for many years.

After earning his undergraduate degree in Health Planning and Administration from the Pennsylvania State University in 1987, Doug went to work as a county EMS director. He then became the director of a three-county regional EMS agency based in Williamsport, Pennsylvania. He then moved on to work for several years on the staff of the state EMS council. In 1993, Doug went to the nation’s capital to work at the United States Department of Health and Human Services, where he worked on federal EMS and trauma care issues. Doug left HHS to attend law school, and in 1996 graduated magna cum laude from the Widener University School of Law. After practicing for several years as a litigator and healthcare attorney in a large Philadelphia-based law firm, Doug co-founded PWW in 2000 along with Steve Wirth and the late James O. Page. As an attorney, Doug is a member of the Pennsylvania and New York bars, and is admitted to practice before the United States Supreme Court as well as numerous Federal and state courts. He also teaches EMS law at the University of Pittsburgh, and teaches health law at the Widener University School of Law, where he is also a member of the school’s Board of Overseers.

Doug is a known as an engaging and humorous public speaker at EMS conferences throughout the United States. He is also a prolific author, having written books, articles and columns in many of the industry’s leading publications, and has been interviewed by national media outlets including National Public Radio and the Wall Street Journal on EMS issues. Doug is a Certified Ambulance Coder (CAC) and a founder of the National Academy of Ambulance Coding (NAAC). Doug also served as a Commissioner of the Commission on Accreditation of Ambulance Services (CAAS).

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Audit BaitHow Ambulance Services Get on

Medicare’s Radar

Copyright 2016, Page Wolfberg & Wirth. All Rights Reserved.

WARNINGThe unauthorized reproduction or

distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI, and is punishable by up to 5 years in federal

prison and a fine of $250,000.

IMPORTANT LAWYER STUFF

This information is presented for educational and general information purposes and should not be

relied upon as legal advice or definitive statements of the law. No attorney-client relationship is formed by the use of these

materials or the participation in this seminar. The user of these materials bears the responsibility for

compliance with all applicable laws and regulations.

Overview

• Who performs a “Medicare audit”?• What types of audits are there?• Who can be audited?• What are the audit risk areas?

Who Performs Medicare Audits?

There are actually many entities…

Possible Medicare Auditors

• MACs• ZPICs• PSCs• RACs• OIG• DOJ




• MAC Audits These are typically routine post-payment

audits – but can be costlyWhen high error rates or unusual

patterns are seen, can result in referral to other entities


• ZPICs and PSCs “Zone Program Integrity Contractors” “Program Safeguard Contractors”

• Audits by these entities can be “routine,” but may also signal other more serious concerns

Possible Medicare Auditors• Recovery Auditors Paid based on a percentage of Medicare

funds recovered or refunded Initial focus was on hospitals – moving to

ambulance


• Office of Inspector General (OIG) Administrative agency with broad civil

and criminal investigative authorityOIG audits are typically more serious and

may involve a range of civil, criminal and administrative sanctions May work in conjunction with US

Attorney’s office (DOJ)


• US Department of Justice Federal prosecutors – US Attorneys Can be civil or criminal DOJ may work with several investigative

agencies, including OIG or FBIWhen DOJ is involved, assume it’s a

criminal case until informed by DOJ

Do I Need Legal Counsel?

• Even routine audits may become bigger problems

• “Anything you say can and will be used against you”

• When counsel has specific experience with Medicare ambulance audits, may be able to raise additional helpful issues in the appeal process



What types of audits are there?

Medicare Review Authority• Prepayment auditsMedicare has the authority to hold

claims until satisfied they have all necessary info to establish eligibility for payment

• Postpayment audits Reviewing services already

reimbursed for possible overpayments

Medicare Review Authority

• Medicare can perform pre- and post-payment audits based upon credible allegations or other reasonable suspicions of billing errors

• Can use extrapolation in post-payment reviews


• CMS Manual 100-8, Chapter 8, Section 8.4.1.4 permits extrapolation when there is high or sustained level of overpayment, which can be demonstrated by…


• Error rate determinations

• Probe samples

• Data analysis/history

• Law enforcement investigations

• Allegations of wrongdoing

• OIG audits or evaluations

• This is based on a statistically valid sample of a particular “claim universe”

Extrapolation



• Suppose Medicare or the OIG is concerned about non-emergency hospital discharges for ABC Ambulance

• Say that ABC Ambulance performs about 6000 of these per year Six years = 36,000 trips

Example

• Sinc eit is impractical to review 36,000 trips, the MAC or OIG might pull a statistically valid sample of all A0428 HN or HR transports over a 6 year period This sample might consist of about 100

claims

Example

• Suppose that the audit finds a 36% error rate consisting of $8,964 in non-medically necessary trips

• Using extrapolation, the government turns that into an overpayment demand of $2,675,367 The government uses the 36% error rate

from the sample and applies it to the entire 36,000 claim universe

Example Types of Audits

• Administrative Most audits fall into this category Usually involves the repayment of money

to Medicare

Types of Audits

• Civil Audits can occur as part of a civil case,

such as a qui tam case under the Federal False Claims Act

Types of Audits

• CriminalOIG/DOJ may request records and audit

claims (often by retaining an outside claims auditor) to investigate or develop a possible criminal case



Who can be audited?

Who Can Be Audited?

• Any provider or supplier that submits claims Ambulance services Hospitals, etc.

• Any billing company or agency who prepares and submits claims for providers or suppliers

What are the audit risk areas for ambulance

services?

Risk Areas• Data Mining

• All ALS Billing

• Dialysis

• Discharges to Residence

• Complaints

• Overuse of GY

Data Mining • CMS has released several years worth of payment data for all Part B ambulance suppliers in the U.S.

• CMS uses these data to make comparisons and spot trends

Data Mining



• High rate of non-emergency utilization• High percentage of repetitive patients • High proportion of certain “high

dollar” transports (SCT, ALS-2) • Findings which stand out from peer

groups

Data Mining

• It is critically important to know your baseline data profiles in terms of: Service mixOrigins/destinations Emergency/non-emergency coding ALS/BLS levels of service

• More on this in the Medicare Update session

Data Mining

All-ALS BillingAll ALS Billing

• All ALS-staffed units common in municipal/fire-based and some private systems that provide 100% ALS coverage

• Some all-ALS systems have erroneously billed all claims at the ALS level

All ALS Billing• Problems: Not all dispatches warrant “ALS,”

even in all-ALS systems

Medicare requires that dispatch info be considered in making level-of-service determinations

Not all responses qualify under the Medicare “ALS Assessment” rule

All ALS Billing

• Skews “utilization rates”

• No BLS-E trips are submitted

• Medicare detects this in edits and utilization reviews



All ALS Billing

• Raises a red flag to Medicare – and to potential whistleblowers

• Even all-ALS systems should properly have a percentage of BLS-coded trips

Action Steps – ALS Billing

• Ensure your dispatch protocols have ALS/BLS response determinants (even all-ALS systems have BLS dispatches)

• Follow dispatch protocols

• Ensure ALS interventions are medically indicated by patient condition and clinical protocols

Action Steps – ALS Billing

• Monitor your ALS-to-BLS coding ratio If ALS is in the 90% -100% range, this

is a quick indicator of a potential problem

Nationally, the percentage is about 65%

Dialysis

Dialysis

• Any transports involving “G” and “J” origin and destination modifiers

• Has long been identified as a possible fraud and abuse risk area in OIG Work Plans

• Several past OIG studies on this issue

Dialysis

• Under Medicare’s broad review authority, a large number of dialysis transports can trigger audits

• This can be based solely on your volume of dialysis trips



Action Steps - Dialysis

• Use a “Repetitive Patient Assessment” tool

• Consider utilizing RNs to thoroughly evaluate these patients

• Supplement to PCS (which must be signed by attending physician for scheduled, repetitive transports)


• Solid documentation (PCR and PCS) Avoid documentation “cloning”

Each PCR should be individualized for that specific transport

No “copy and paste” documentation


• Ambulance services that rely heavily (or exclusively) on dialysis business can expect to be targeted until they are forced out of business Reduce dialysis business

Diversify your service mix


• Consider 100% review of dialysis trips

• Monitor pts on an ongoing basis –look for differences in the documentation over the course of the 60-day PCS period

• Consider “Repetitive Patient Transport Team”

Discharges to ResidenceDischarges to Residence

• CMS views medical necessity as questionable in these types of trips Because the patients are being taken

from a medical facility to a residence typically with no medical care at all

High bar to demonstrate why these trips require an ambulance



Discharges to Residence

• A Medicare audit could easily review all H-R discharges looking specifically at medical necessity

• This is likely to be an area of focus in future audits

Action Steps –Discharges to Residences

• Solid documentation Thoroughly review PCSs prior to trip

Make sure crew PCR documentation is thorough

Crews should look for indications of ongoing medical care at the pt’s home and document if present


• Examples: “Pt transferred to hospital bed which was

set up in the living room”

“Patient placed on home oxygen at residence”

“Pt left in care of home health nurse who was waiting for us upon arrival”


• Do not bill Medicare (or, if billing, use GY modifier when appropriate) for transports where medical necessity or reasonableness are not met

• “Courtesy trips?” Not billable!

ComplaintsComplaints

• Competitors

• Qui Tam relators seeking fortunes

• Patients

• Disgruntled employees – former and current



Complaints

• Medicare can pursue investigations based on complaints Can even suspend payments based

on “credible allegation of fraud”

• Broad authority

• Nature of complaint and identity of complainant rarely revealed

Action Steps - Complaints

• Avoid creating a hostile relationship that could trigger a complaint (competitors, patients, facilities, former employees)

• Act internally and proactively on complaints before they become bigger


• Implement a “hotline” as part of your compliance program

• Make sure that all complaints are followed-up promptly, fairly and thoroughly

• Obtain feedback from employees at regular intervals regarding potential trouble spots Ask pointed, specific questions as part of

employee performance reviews


“Have you ever falsified a PCR?”

Have you ever been asked or told to falsify a PCR?”

Are you aware of anyone who has falsified a PCR?”

“Do you ever fill out PCS forms?”

“Do you sign patient names on signature forms?

Action Steps - Complaints• Can also use a questionnaire for this

purpose• Also do exit interviews before

employee departures whenever possible

• Have employee sign and put in their file



Proper Use of GYSubmission of Claims for Non-Covered Services

• Some trips do not meet Medicare coverage criteria and are not payable

• Not required to submit a claim for a non-covered service unless: Beneficiary request

Coordination of benefits

GY Modifier

• In cases where you have to submit a Medicare claim for a service you know is not covered, you use the GY in most cases

• GY triggers a denial, and means patient may be billed Medicare does not ordinarily review

underlying documentation – it relies on your determination of non-coverage

• If you don’t use GY enough: Could signify overbilling of claims that

don’t meet medical necessity

• If you use it too much: Could signify shifting responsibility from

Medicare to the beneficiary

Use of GY

Overuse of GY

• Medicare can audit GY claims to evaluate whether Medicare coverage criteria were actually met and the provider inappropriately shifted liability to the beneficiary

Overuse of GY

• Remember, providers are not limited to Medicare-allowed rates when billing patients directly for non-covered services Some providers may inappropriately

use “GY” to try to pull an “end run” around Medicare’s “limiting charge” provisions



Action Steps – Proper Use of GY

• If trip doesn’t need to be billed to Medicare, don’t

• Only use GY when appropriateMake use of GY a focus of internal

audits and reviews

Summary

• No service can be “audit-proof” or immune from review

• Follow requirements and have solid, accurate underlying documentation so that the outcome of your audit will be favorable

• Avoid high risk areas to prevent audits to the greatest degree

Summary• Comply with Medicare, OIG, FBI,

or AUSA requests in a timely fashion, and be cooperative Involve your legal counsel early in

the process

• Improve internal review processes both before and after billing to detect problems

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www.pwwemslaw.com

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HIPAA Compliance

Billing & Coding

Ambulance Compliance Program Tool Kit

Implement. Improve. Excel.

Mandatory compliance programs are coming. Are you ready? The Ambulance Compliance Program Tool Kit has everything you need to create and employ an effective compliance program and promote compliance throughout your agency. The Tool Kit contains; a Model Ambulance Compliance Plan for ambulance services and third party billing agencies, a Model Code of Conduct describing the expectations for your staff

members, Model Policies and Forms that can be easily adopted and implemented to ensure compliance, a Model Ambulance Claims Review Spreadsheet to facilitate a detailed internal claim review and a Ready to Use Ambulance Compliance Training Program that can easily meet all your agency’s training needs.

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Compliance is the competitive edge.

Are you facility contracts as good as they can be? Are your facilities rates based on Medicare allowable rates? Costs? Rates of your competitors? Find out where your rates need to be. This Tool Kit includes a number of practical tools to help your organization maintain compliance in the contracting process, including: model facility agreements, a Cost-Analysis Tool, and a Facility Education Packet.

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Social media compliance, we’ve got a plan for that.

Learn how to strike the right balance between your staff members’ needs to network and your obligation to keep your agency running smoothly. The Kit contains a Sample Social Networking Policy, which helps you set clear expectations and parameters when it comes to your workforce and the internet. The Survival kit also includes: An EMS Employer’s Guide to Social Media and a thorough Social Media Compliance training program.

Ambulance Service Guide to HIPAA Compliance, 4th Edition

Now more practical than ever. The Fourth Edition is packed with tips, action steps, best practices, EMS examples and other handy features.

The best part about the Fourth Edition is the FormFill feature that allows you to answer a few simple questions and instantly generate the forms you need for your own HIPAA compliance plan.

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The new abc QuikGuide is the most convenient and concise overview of ambulance billing and coding requirements you’ll find anywhere. Convenient tabs make it easy to find the information you’re looking for right away. And because the abc QuikGuide is written by the attorneys and consultants of Page, Wolfberg & Wirth, you can count on getting the most current and accurate information available.

Includes: Ambulance-specific ICD-10 codes, Documentation tips, Key EMS abbreviations, Medicare appeals information, covers ground & air ambulance, and so much more!

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09.22.16 - HANDOUT Illinois - Audit Bait Wolfberg... · 2016. 9. 26. · 2016 Page, Wolfberg &...

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