50 Shades of Grey 10-02-12 Handout

51 Pages·2012·4.81 MB·English

by  Stan Stead

50 SHADES OF GREY:
OIG AUDITS OF ACADEMIC
ANESTHESIA DEPARTMENTS
Stanley W. Stead, M.D., M.B.A.
President, Stead Health Group, Inc.
Section Chair, ASA Section on Professional Practice
AMA Relative Value Update Committee
AMA CPT Assistant Editorial Panel
Professor of Anesthesiology and Pain Medicine, UC Davis
DISCLOSURES
• I serve as a health care economic consultant to a variety of entities
including: physician practices, hospitals, health systems, universities,
states and the US government.
• I am a major stockholder in my company, Stead Health Group, Inc.
• This presentation does not contain information or services for
which I could derive a financial benefit.
© 2012 Stead Health Group, Inc. 2
OVERVIEW
• Review the Medicare regulations regarding anesthesia and pain
medicine
• Understand the how the HHS OIG is reviewing your claims and
using the false claims act
• Strategies for meeting both clinical and documentation needs
• Legal protections afforded state institutions from the False Claims
Act
• Establishing a defensive strategy to minimize exposure
© 2011 Stead Health Group, Inc. 3
THERE’S MONEY IN
ENFORCEMENT!
• ROI of 17 to 1
• OIG recovers $17
for each $1
invested in
enforcement
activities
http://oig.hhs.gov/reports-and-publications/oas/cms.asp
© 2012 Stead Health Group, Inc. 4
THERE’S MONEY IN
ENFORCEMENT!
• False Claims Recoveries:
• $3 billion/yr (FY 2011) ($8.7B since 2009)
• Whistleblowers accounted for $2.8B
• “[H]ealth care accounted for the lion's share . . .
$2.4 billion (80%)
• DOJ Press Release (Dec 19, 2011), available at
http://www.justice.gov/opa/pr/2011/December/
11-civ-1665.html/08-civ-992.html
© 2012 Stead Health Group, Inc. 5
FALSE CLAIMS ACT
• The False Claims Act (FCA) (31 U.S.C. §§3729-3733) is a federal
statute that imposes penalties on entities that improperly bill the
government.  In the health care arena, this means knowingly
submitting false claims to the Medicare or Medicaid programs for
reimbursement. 
• Examples of false claims include:
• Upcoding
• Misrepresenting the services that were rendered
• Submitting claims for services that were not performed
• Unbundling
• Submitting claims for unreasonable costs.
© 2012 Stead Health Group, Inc. 6
FALSE CLAIMS ACT
• In order to encourage individuals with the knowledge of
wrongdoing to come forward, the FCA allows those individuals,
called “relators,” to file a civil suit, a qui tam action, against the
wrongdoer in the name of the government.   See 31 U.S.C.
§3730(b).  In return for reporting the wrongdoing and for being a
party to the suit, the relator receives between 15% and 30% of the
award.  31 U.S.C. §3730(d)(1)&(2).
• Unfortunately, this monetary incentive, which often equals millions
of dollars, could give rise to abuse and may result in claims that are
aptly termed “parasitic.”
© 2012 Stead Health Group, Inc. 7
FALSE CLAIM ACT MAY NOT
BE APPLICABLE TO STATE
INSTITUTIONS
• State agencies are not “persons” subject to FCA liability
• The University is a state agency and thus not a “person,” and
therefore may not be sued under the FCA
• The “University Associates” are typically business units of the states
• The “defendants” are therefore not “persons” and may not be sued
under the FCA
• The University will vigorously contest the applicability of the FCA
and potential FCA liability in this case
© 2012 Stead Health Group, Inc. 8
REVIEW OF THE GOVERNMENT
AUDIT PROTOCOL
Ø Audit period: Typically selected over a period of years
Ø Dates of service selected via multiple criteria
Ø Judgmentally selected by OAS
Ø Selected based on relator documents by DOJ
Ø Dates of service actually audited may be arbitrary
Ø Request for all relevant records - open ended
© 2012 Stead Health Group, Inc. 9
MEDICARE PAYMENTS
FOR ANESTHESIA SERVICES
Ø Statutory
§ Omnibus Budget Reconciliation Act (OBRA) of
1989 (Pub. L. 101-239). . Section 1848(b)(2)(B) of
OBRA established Anesthesia Base + Time
Methodology
§ OBRA 1990, (Pub. L. 101-508)
Ø Regulatory
§ Medicare - Medicare Carrier Manual, Chapter 12
• Sections 50 (Payment), 100 (Teaching), 140
(CRNA Payment)
§ Medicaid - guided by state
© 2012 Stead Health Group, Inc. 10
COMPLIANCE RISK
Federal government has been funding
increased enforcement efforts, believing that
recoveries through settlements and
prosecutions are an important way to
combat and deter improper billing.
Incentive for whistleblowers “qui tam” 15-30% of proceeds
(or settlement)
Automatic Office Inspector General (OIG) Investigations -
criminal investigations on a phone call from an employee
(former or current)
MACs are using computer screens and post-payment
audits
© 2012 Stead Health Group, Inc. 11
BILLING COMPLIANCE:
AVOIDING “FRAUD & ABUSE”
“I will not encounter billing compliance
• Billing
problems so long as you provide good
Requirements WRONG!
patient care and are not out to cheat the
and Billing
system.”
Compliance
You do not need to intend to cheat the
system to incur substantial financial liability
for bills you (or others) submit for your
services, especially if the patient was a
Medicare, Medicaid or other federal
program beneficiary.
© 2012 Stead Health Group, Inc. 12
WHAT IS THE RISK?
• False Claims: triple damages + $11,000
per claim
• Improper submitted claim for $450:
$12,350 ($11,000+3*$450)
The government does not have to
establish specific intent to defraud and
it is no defense that the Group
provided other reimbursable services
or that it did not have actual
knowledge that the claims were false.
© 2012 Stead Health Group, Inc. 13
CRIMINAL FALSE CLAIMS
LAWS
• Prohibit knowingly & willfully making false statement in claim to
gov’t, or
• Submitting false & fictitious claims
• Knowledge of falsity not required
• “Willful blindness”/deliberate ignorance sufficient for liability
© 2012 Stead Health Group, Inc. 14
CALCULATING TIME
• Continuous, actual presence
• Starts: when begin to prepare patient for anesthesia
• Pre-op exam time is not anesthesia time
• When does time start when doing other, separately paid
services ?
• Post-op pain epidural
• Ends: when patient may be safely transferred for post-op care
• If presence of “Qualified Individual” ceases, use discontinuous time.
• NEVER ROUND TO THE NEAREST FIVE MINUTES
© 2012 Stead Health Group, Inc. 15
TIME
• Medicare/Medicaid: Report Actual Time - without approximation
• Payment Rounded to nearest tenth of hour
• Private payors
• Varies
• Managed care contract may address
• But new standardization of forms may lead to all payors using actual
time
• Time in minutes is now reported via X12 5010 instead of time
units
© 2012 Stead Health Group, Inc. 16
DOCUMENTING TIME FOR
ANCILLARY PROCEDURES
• Document time of preop block (or line placement)
• Document: start & stop of preop block time
• Separate from anesthesia time
• If not documented, OAS assumes fraud
• No need to deduct time if lines placed intraoperatively
© 2012 Stead Health Group, Inc. 17
QUALIFIED PROVIDERS & TIME
• Time stops if “qualified individual” not w/patient
• “Qualified individual” who can be medically directed:
• AAs & CRNAs (& student NAs)
• Residents, interns
• Not a “Qualified individual”
• Medical student
• Holding area/circulating nurse
© 2012 Stead Health Group, Inc. 18
DISCONTINUOUS TIME
• Can aggregate discontinuous segments of anesthesia time
• E.g., delays in starting surgery; regional cases
• Anesthesia time & monitoring w/in each block of time must be
continuous
• Must document start & end times of any separate segments of
anesthesia time
• Consider impact of discontinuous time on
• Concurrencies – number of cases being “medically directed”
• Residents and CRNAs
• Do they appear as working on more than one case at the
same time?
© 2012 Stead Health Group, Inc. 19
FREQUENCY DISTRIBUTION
OF MINUTES
Evidence of Rounding to 5 minute interval on End Time
© 2012 Stead Health Group, Inc. 20