Each year, the Office of Inspector General (OIG) for the department of Health and Human Services (HHS) issues a work plan detailing expected audit areas for the fiscal year. The publication of the work plan provides an opportunity for physicians to look at their current practices and determine whether they may be affected by the enforcement actions. In addition to the OIG work plan, physicians may want to be aware of Department of Justice (DOJ) settlements impacting physicians that result in civil and criminal penalties. At this time, there are three main areas that are under increasing scrutiny: (1) compensation arrangements; (2) coding compliance target areas; and (3) physician prescribing patterns.
Nearly all physicians are familiar with the STARK regulations, which have focused on ensuring that compensation arrangements don’t focus on the volume or value of referrals and that the arrangements fall within a designated STARK exception. Historically, litigation on these issues has focused on the hospitals that are initiating the arrangements. That focus has now shifted toward physicians, with the federal government using the Anti-Kickback Statute in new ways. At the end of 2015, the DOJ reached settlements with several hospital entities related to the amount of compensation paid to physicians compared to the practice’s income. Additionally, physicians were targeted in the settlement based on the type of negotiation comments made in emails and other written communication with the hospital. The hospitals were penalized for paying physicians too much, based on significant losses suffered by the practice as a whole compared to the revenues earned. Many of the physicians had utilized terminology in negotiations referencing the volume of their referrals, the value of their service lines to the hospital, and the like. Physicians should use caution in future compensation negotiations to avoid utilizing this type of terminology.
Additional enforcement targets related to compensation are focused on the rates paid for medical directorships; documented evidence that services were provided for the payments received; and that hospitals are not employing office staff only in order to reduce physician overhead.
The OIG Work Plan includes five items that target physician coding: (1) anesthesia services; (2) physician home visits; (3) prolonged services; (4) medication management; and (5) place of service coding. There are specific elements that the OIG is focusing on for each of these items.
Anesthesia Services: The OIG is focused on whether the anesthesiologist has billed appropriately for the level of participation. Claims billed with the AA modifier, indicating that the anesthesiologist personally performed the services, will receive the most scrutiny by the OIG. Documentation must be present to support that the services were performed directly by the anesthesiologist and that no part was performed by others. An additional tactic to be utilized will include looking to see how the anesthesiologist was scheduled and for evidence that the anesthesiologist was, in fact, only supervising.
Physician Home Visits: In order for a home visit to be considered reasonable and medically necessary, there is an expectation that documentation will reflect the reason it was not medically appropriate for the patient to be seen in the physician office or other outpatient setting.
Prolonged Services: The OIG will determine whether evaluation and management (E/M) services coded as prolonged services were reasonable and made in accordance with Medicare requirements. The additional time beyond the time spent with a beneficiary for a usual companion evaluation and management service must be supported with appropriate documentation in order for the services to be covered.
Medication Management: The OIG has noticed an up-tick in the prescribing of medications that cause interactions or complications when utilized in combination by Medicare Part D patients. As a result, the OIG will focus their review on how well physicians are documenting the complete medication list of patients and whether physicians are considering interactions when managing the patient’s medication.
Place of Service Coding: Physicians are required to appropriately notate the location where services are provided to patients, and to bill for the services accordingly (physician office, outpatient department of a hospital, and inpatient visits).
Prescribing Patterns of Physicians
CMS and the DOJ have growing data analysis opportunities. One of the items that is receiving increased scrutiny via data analysis is the prescribing patterns of physicians. This analysis includes many different medications, with the most recent target being opoid and opiod replacement medications. Physicians who are identified as high prescribers of these types of medications can expect increased scrutiny on the medical necessity of the prescriptions as well as the frequency and volume of prescriptions.
As the OIG and CMS identify patterns of high usage of goods and services, the list of target areas will continue to grow. Be alert to enforcement trends. Consider what monitoring may be appropriate within your practice, in order to be appropriately prepared. Take proactive steps to address the known target areas while the opportunity still exists.
ADDITIONAL ENFORCEMENT TARGETS RELATED TO COMPENSATION ARE FOCUSED ON THE RATES PAID FOR MEDICAL DIRECTORSHIPS; DOCUMENTED EVIDENCE THAT SERVICES WERE PROVIDED FOR THE PAYMENTS RECEIVED; AND THAT HOSPITALS ARE NOT EMPLOYING OFFICE STAFF ONLY IN ORDER TO REDUCE PHYSICIAN OVERHEAD.
Shawn Stevison, CPA, CHC, CGMA, CRMA, is the manager of Healthcare Consulting Services at Dean Dorton. She can be reached at 502.566.1066 or firstname.lastname@example.org.