OIG INITIATIVES FOR 2011 - assets.hcca-info.org · Predictive Modeling Risk Scoring Solution...

4/7/2011

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Cleveland | Columbus | Indianapolis | Philadelphia | Shanghai | White Plains | Wilmington

www.beneschlaw.com

OIG INITIATIVES FOR 2011

David S. CadeDeputy General Counsel

Department of Health Human Services

Alan E. SchabesPartner

Benesch, Friedlander, Coplan & Aronoff LLP

Fraud Prevention and Detection

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Antifraud Activity

• Fraud Prevention

o Engaging Medicare Beneficiaries & Stakeholders

o Antifraud Marketing

o Keeping Out Fraudulent Providers and Suppliers

o Avoiding Paying Fraudulent Claims

o Predictive Analytics

o Improving Payment Accuracy

• Fraud Detection

o Coordination with Law Enforcement

o Data Analytics

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Preventing Medicare Fraud

• Identify high risk providers and claims before

enrollment or payment

• Engage key stakeholders, including physicians

and beneficiaries

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New Screening and Enrollment Rule

CMS-6028-F

• Provider Screening (ACA § 6401(a))

o Levels of Screening by Categories of Providers:

� Limited – physicians, medical groups, clinics, hospitals

� Moderate – Physical therapists, CMHCs, outpatients rehabs,

ambulance providers, currently enrolled DMEPOS and home

health agencies

� High – Prospective (newly enrolling) home health agencies

and suppliers of DMEPOS; providers and suppliers who have

been reassigned due to a triggering event, such as:

� Excluded by the OIG

� Subject to a payment suspension

� Terminated by Medicaid

� Subject to other final adverse actions

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CMS-6028-F

Final Required Screening and Levels of Risk

TYPE OF SCREENING REQUIRED LIMITED MODERATE HIGH

Verification of any provider/supplier-specific

requirements established by Medicare√√√√ √√√√ √√√√

Conduct license verifications, including licensure

checks across States√√√√ √√√√ √√√√

Database Checks (to verify Social Security

Number (SSN), the National Provider Identifier

(NPI), licensure, an OIG exclusion, taxpayer

identification number, death of individual

practitioner, owner, authorized official, delegated

official, or supervising physician )

√√√√ √√√√ √√√√

Announced or Unannounced Site Visits √√√√ √√√√

Criminal Background Check √√√√

Fingerprinting √√√√

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CMS-6028-F

• Temporary Enrollment Moratorium may be imposed for 6 month increments (ACA § 6401(a))

o Conditions for a temporary moratorium

� CMS data suggests trends associated with high risk of fraud, such

as highly disproportionate number of providers per beneficiary

� A State has imposed a moratorium in a particular geographic

area or on a particular provider/supplier type

� In consultation with the OIG or DOJ, or both

o The moratoria will be limited to:

� Newly enrolling providers

� The establishment of new practice locations, but not the change

of practice location

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CMS-6028-F

• Suspension of payment based on a credible allegation of fraud (ACA § 6402(h))

o Examples of a “credible allegation of fraud” include, but are not

limited to:

� Fraud hotline complaints

� Claims data mining

� Patterns identified through provider audits

� Civil false claims cases

� Law enforcement investigations

� In consultation with the OIG

o Duration of suspension

� For each suspension, attestations would be required every 180 days from the HHS OIG that the payment suspension should remain in place

� The suspension will end after 18 months unless OIG or DOJ

indicated an action was imminent

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CMS-6028-F

• New ACA language at § 1862(o) of the Act provides “[t]he

Secretary may suspend payments to a provider of services or

supplier under this title pending an investigation of a credible

allegation of fraud against the provider of services or supplier,

unless the Secretary determines there is good cause not to

suspend such payments.”

• Statute requires consultation with OIG on whether there’s

“credible allegation of fraud”

• Allegations are considered to be credible when they have

indicia of reliability.

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CMS-6028-F

• Termination of a Provider under Medicaid and CHIP if terminated under Medicare (ACA § 6501)

o Providers who have been terminated under Medicare or another State Medicaid program for cause, or has had its billing privileges after January 1, 2011 must be denied under other State’s Medicaid program or CHIP

o Providers who have been terminated under a State Medicaid

program may be revoked by Medicare

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Preventing Improper Payments:

Additional provisions from ACA

• Reporting and Returning Overpayments (ACA § 6402

(a))

• Increased Disclosure Requirements (ACA §6401(a))

• Enhanced Oversight(ACA § 6401(a))

o The Secretary shall withhold payment to DMEPOS suppliers

for a period of 90 days after initial enrollment if there is a

significant risk of fraudulent activity

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The National Fraud Prevention Program

• CMS is currently integrating predictive modeling as

part of an end-to-end solution for detecting and

preventing fraud

• Innovative risk scoring technology will apply a

combination of:

o Behavioral analyses

o Network analyses

o Predictive analyses

• CMS is committed to partnering in the private sector

to develop new innovative technologies

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National Fraud Prevention Program

DevelopTestRefine

Predictive Modeling

Risk Scoring Solution

Including:ClaimsEnrollment RecordsInvestigationsComplaintsStolen IDs

Alert Management System

Program Integrity Contractors

Data

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National Fraud Prevention Program

Implementing the Risk Scoring Solution into Claims Processing

Risk Scoring Solution

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Medicare Administrative

Contractor, Shared Systems

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Common Working File -Consolidated

Data

Edits

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445566

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Detecting Medicare Fraud

• Coordination with law enforcement

• Improving communications with key

stakeholders

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Field Office Initiatives

• CMS has Program Integrity Staff in Field Offices in:o Miami, Chicago, Dallas, Atlanta, New York and San Francisco

• Field staff work very closely with local law

enforcement and contractors. Some examples

include:o The FO in Miami has been key in implementing Medicare’s Florida

Fraud Hotline (1-866-417-2078) for beneficiaries to report suspect

services. The hotline allows investigators to respond to beneficiary

tips immediately and often to stop paying fraudulent providers

which has resulted in millions of dollars in savings.

o The New York FO has actively participated in the Identity Theft

Town Hall meetings have been coordinated with Representative

Steve Israel and the FBI Cyber Crimes Unit, IRS, SSA,

and Nassau County DA's Office.

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Health Care Fraud Prevention and

Enforcement Action Team (HEAT)

• The Health Care Fraud Prevention and Enforcement Action

Team (HEAT) is a joint Cabinet-level effort established by the

President and led by Secretary Sebelius and Attorney General

Holder. A major part of the HEAT initiative is the use of a criminal

Strike Force. The HEAT Strike Force, which now operates in nine

cities – Miami, Los Angeles, Detroit, Houston, Brooklyn, Tampa,

Baton Rouge, Dallas, and Chicago.

• The Strike Force investigates and tracks down individuals and

entities defrauding Medicare and other government health

care programs and pursues them criminally. Strike Force

prosecutions are “data driven,” target individuals and groups

actively involved in ongoing fraud schemes, and seek speedy

investigations, pleas, and/or criminal convictions.

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OIG Initiatives for 2011

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• On October 7, 2010, the Department of Health and Human

Services, Office of Inspector General (OIG) released its 2011

Work Plan.

• Some of the enforcement priorities defined in the 2011 Plan are

based on statutory mandates to target particular areas, while

others reflect the OIG’s assessment of “relative risk” in the

Medicare and Medicaid programs

• The Work Plan sets forth OIG initiatives and priorities for 2011.

Initiatives include audits, investigations, inspections, industry

guidance and enforcement actions including, but not limited

to, civil monetary penalties, assessments and exclusions.

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• The 2011 Work Plan’s array of initiatives suggests that the OIG will focus its efforts on:

o Ensuring compliance with certain highly technical billing and reimbursement requirements

o Analyzing whether services are being provided at substandard levels of quality and with insufficient levels of documentation

o Addressing compliance with some of the electronic health record provisions adopted in the 2009 Recovery and Reinvestment Act

o Implementing various program integrity standards enacted under the 2010 Affordable Care Act

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• The OIG Work Plan will affect all post-acute care providers including nursing homes, home health agencies, hospices, rehabilitation hospitals and durable medical equipment providers. The Work Plan makes clear that the OIG is continuing its focus on particular types of providers who are perceived to pose heightened risks of fraud

and abuse.

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Key Nursing Home Initiatives

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• Medicare Quality of Care

o Review the quality of care provided in Medicare SNFs to

determine the extent to which SNFs have

� Developed plans of care based on assessments of

beneficiaries

� Provided services to beneficiaries in accordance with the

plans of care

� Planned for beneficiaries’ discharges

o Increased numbers of False Claim Act cases

� Worthless services vs. bad survey case – need to

determine where is the line

� Express/implied certification

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• Nursing Facility Ownership and Transparency

OIG has expressed concern that complex ownership structures make it difficult to determine which entity is legally liable for patient care and, as a result, the OIG is initiating heightened scrutiny of investor owned, Medicaid certified nursing facilities

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Nursing Home Transparency(PPACA, §§6101-21)

• Mandated disclosure and public availability of information on ownership, management, and organizational structures of Medicare SNFs and Medicaid NFs (final regulations must be issued by March, 2012). PPACA, §6101

o Effective immediately, SNFs and NFs must maintain information regarding ownership, identity of directors and officers and secured lenders and mortgagees

� Facilities are currently required to disclose information on individuals and entities that have a direct or indirect ownership of 5% or more and officers, directors, and partners and holders of the mortgages, deeds of trusts, notes or other obligations secured by the facilities or property of the facilities

Nursing Home Transparency

• Disclosure includes name, title, and period of service for officers, directors, members, managers, partners, trustees, or managing employees of facility

• Managing employee is defined as an individual who directly or indirectly manages, advises, or supervises any element of the practices, finances, or operations of the facility

• “Additional disclosable party” covers those who exercise operational, financial, or managerial control over the facility orown property of the facility or lease or sublease real property to it or provide management/administrative services, management or clinical consulting services or accounting financial services

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• By July, 2012, a nursing facility must report the required information on a standardized form to HHS. At that time, a nursing facility will also have to certify, as a condition of program participation, that the information provided is, to the best of its knowledge, accurate and current

• By March, 2013, HHS will make the ownership and additional disclosable party information submitted on the standardized form available to the public


• If a nursing facility also reports any of this information to the Internal Revenue Service (for example, on a Form 990), the SEC or HHS (on a Form 855A), the nursing facility can submit any of these forms to satisfy the current requirement

• The disclosure of additional disclosable parties may increase the risk level for these parties and, directly or indirectly, affect professional liability exposure

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• Required establishment and operation of an effective compliance and ethics program(final regulations must be issued by March, 2012; programs to be operative by first day of first calendar quarter one year after final regulations). PPACA, §6102

• SNFs and NFs will be required to have mandatory operational compliance and ethics programs within 36 months of enactment


• Compliance plan must be effective in preventing and detecting criminal, civil, and administrative violations in promoting quality care

• Secretary’s regulations may include a model compliance plan

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• Not later than three years after the date of the promulgation of the regulations, the HHS Secretary must complete an evaluation of the compliance and ethics programs established under this law. The evaluation must determine if the programs led to (i) changes in deficiency citations; (ii) changes in quality performance; or (iii) changes in other metrics of patient quality of care. A report on this evaluation must be submitted to Congress and must include recommendations regarding changes in the requirements for the programs that the Secretary deems appropriate


• Quality assurance and performance improvement program – HHS Secretary to establish by December 31, 2011, with facilities submitting their plans within one year of final regulations. PPACA, §6102

• Review, modification, and improvement of Nursing Home Compare Medicare websiteusing newly required information (generally effective one year after enactment). PPACA, §6103

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• On March 18, 2011, CMS issued Survey and Certification Letter (S&C 11-17-NH)

• CMS announced three implementation stepso On 4/23/11, the Nursing Home Compare website

will provide the ability to file complaints online and provide a standardized complaint form

o On 4/23/11, the website will contain additional information regarding the rights of nursing home residents and the ability to enforce them

o On 7/23/11, the website will set forth information on civil monetary penalties and complaints lodged against facilities


• New Nursing Home CMP Final Rule

(March 18, 2011) – Use of Independent

Informal Dispute Resolution, Escrow of

Assessed CMPs and limitations on 50%

Reduction on Settlement

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• Poorly Performing Facilities

o Review enforcement measures implemented by both CMS and State SSA for poorly performing nursing homes

o Review enforcement decisions resulting from survey and certification inspections and follow-up measures to ensure plan of correction implementation

• Resident Hospitalization

o Review resident hospitalizations to determine if hospitalization during a SNF stay was caused by poor quality of care of unnecessary fragmentation of services

o Identification of nursing home “never events”

• Assessment and Monitoring of Nursing Home Residents Receiving Atypical Antipsychotic Drugs

o Reviews of care plans and assessments as the relate to the use of atypical antipsychotic drugs

o Evaluate the extent to which SNFs use CMS’s Resident Assessment Protocol (RAP) for psychotropic drugs to develop residents’ care plans

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• RUGs Accuracy

o Review Medicare payments to SNFs to determine whether the Resource Utilization Group (RUG) categories are supported by the patient’s medical records

o Increased analysis of accuracy of Minimum Data Set (MDS) data

• Medicaid Quality of Care Incentive Payments

o Review Medicaid incentive payments to nursing facilities based on the facilities’ quality of care performance measures

• Employee Criminal Background Checks

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• Review whether nursing facilities have employed

individuals who have criminal convictions

• Part B Services During Non-Part A Covered Stays

o Review claims from 2008 for Part B services

provided to nursing home residents whose stays

are not paid for under Medicare’s Part A SNF

benefit

• Hospice Services in SNFs

o Review hospice utilization in nursing facilities to

determine whether hospice beneficiaries met

Medicare coverage requirements

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o Review business relationships between nursing facilities and hospice providers

� Coordination of care between SNF and hospice provider

� Identify service and payment arrangements between SNF and hospice provider

o Assess the marketing practices and materials of

hospice providers associated with high utilization

patterns

• Disaster Preparedness

o Review SNFs emergency preparedness plans to

ensure they are adequate

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Key Home Health Care Initiatives

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Key Home Health Care Initiatives

• Part B Payments to Home Health Beneficiarieso Are HHA’s billing for services and medical supplies

outside of the prospective payment?• Claims for Home Health Resource Groups• Oversight of outcome and Assessment Information Set

(OASIS) Data• HHA Profitability Review• Mandated face-to-face encounters with patients before

physicians certify Medicare eligibility for home health services and durable medical equipment (PPACA, §6407). But, physicians include nurse practitioners, clinical nurse specialists, certified nurse mid-wives (home health only), and physician assistants working with physicians (PPACA, §§6407 and 10605)

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OTHER KEY INITIATIVES

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Other Key Initiatives

• 60-Day Period For Reporting and Returning Detected Overpayments (PPACA §6402(a))

• Medicare Part B Payment for Home Blood Glucose Testing Supplies

• Medicare Payments for Power Wheelchair Supplies

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• Frequency of Replacement of Supplies for Durable Medical Equipment

o Review compliance of DMEPOS suppliers with Medicare requirements for frequently replaced supplies

� Determine whether suppliers automatically CPAP and respiratory-assist device supplies without first obtaining a physician order

• Medicaid Medical Equipment

o Review Medicaid payments for medical supplies and equipment to determine whether:

� They were properly authorized by physicians

� Products were received by beneficiaries

� Amounts paid were within Medicaid payment guidelines

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• Medicare Pricing for Parenteral Nutrition

o Review of the Medicare fee schedule for parenteral nutrition compared with fees paid by other payor sources

• Rehabilitative Services

o Review Medicaid claims for rehabilitative services to determine whether the services were provided in accordance with federal and state guidelines

• Medicaid Hospice Services

o Review Medicaid payments for hospice services to determine whether the services were provided in accordance with federal and state reimbursement requirements and were reasonable and necessary

• Medicaid Adult Day Care Services

o Review Medicaid payments to providers of adult day care services to determine whether the payments were in compliance with federal and state requirements

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OIG INITIATIVES FOR 2011

Questions?

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