Reducing Waste, Fraud and Abuse - ACP...Skilled Nursing Facilities (SNFs) 1. 2 HCFA should encourage physician involvement in nursing home care by allowing physicians to bill and receive

Reducing Waste, Fraud and Abuse

National Strategy Recommendations by the American Society of Internal Medicine

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Reducing Waste, Fraud and Abuse Without Increasing the Hassle Factor

For Physicians and Their Patients National Strategy Recommendations

By the American Society of Internal Medicine

May 1998

Executive Summary and Recommendations m

Introduction

What Is Fraud? 10

VVhat Is Abuse? 10 Who Is Responsible for Investigating Waste, Fraud and Abuse in Medicare? 10

What Is the Hassle Factor? 11

ASIM’s Concerns About Fraud and Abuse Enforcement

and the Increasing Medicare Hassle Factor m

The Current Regulatory Environment I2

Practical Implications of Increased Fraud and Abuse Enforcement 12

ASIM’s Proposed Principles on Fraud and Abuse 13

Initiatives Under Way To Address Fraud and Abuse in Medicare

The Balanced Budget Act of 1997 The Health Insurance Portability and Accountability Act of 1996 Operation Restore Trust Office of the Inspector General (OIG) Financial Audit

14 14 16

of the Health Care Financing Administration (HCFA) I7

0 1

HCFA and OIG “C orrective” Actions in Response

to the OIG Financial Audit

Prepayment Claims Review and Prepayment Medical Frequency Screening Post-Payment Utilization Review Fraud and Abuse Audits False Claims Act Role of Carrier Medical Directors and Carrier Advisory Committees, and

the Use of Local Medical Review Policy

Fraud and Abuse in Skilled Nursing Facilities

19 20 21 22

23

Fraud and Abuse in Home Health Services

Physician and Patient Roles in the Supply of Home Health Services 26

Fraud and Abuse in Hospice Care

Fraud and Abuse in the Provision of Durable Medical Equipment (DME) m

DME Ordering and Fulfillment Processes Weaknesses in the DME Payment System Federal Programs To Reduce Fraud and Abuse in DME

Documentation Guidelines for Physician

Evaluation and Management (E/M) Services

Hassles Related to the Content of the E/M Documentation Guidelines Hassles Related to the Implementation of the E/M Documentation Guidelines Summary of ACP-ASIM Joint Action Plan To Reduce HCFA’s Excessive

Documentation Requirements for E/M Services

Conclusion

31 31 32

34 34

37

Key to Abbreviations

References

T he medical profession must have zero tolerance for fraudulent or abusive behavior; it must work to eliminate unscrupulous activi-

ties from the health care system. However, the government must act more judiciously in applying the laws and regulations against fraud and abuse. Education, voluntary compliance, and self-disclosure are the most effective strategies for eliminating fraud and abuse. Successful detection and prevention hinges on the definition of fraud and abuse; the definition also determines estimates of its prevalence in the health care system.

This paper offers a series of recommendations to reduce fraud and abuse without increasing Medicare hassles for physicians and their patients.

Recommendations on the Medicare Integrity Program (MIP)

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2.

3

4*

5.

6.

7.

The Health Care Financing Administration (HCFA) must hold its carriers accountable to established Medicare criteria and standards- especially in claims processing and customer satisfaction-as MIP assumes responsibility for payment safeguards.

HCFA should monitor the performance of MIP contractors to assure they are accountable to questions and concerns raised by patients and physicians about coverage and other issues.

HCFA should continue due process and appeals mechanisms for physicians.

HCFA should initiate a comprehensive effort to educate physicians about all aspects of MU?

HCFA should penalize carriers and program integrity contractors for failing to meet established criteria and standards.

HCFA should solicit local physician input on the adequacy of carrier performance-for both claims processing and program integrity.

Physicians should be able to request and receive an administrative law hearing to challenge a carrier’s performance of its administrative and other policy requirements, if earlier resolution

8.

attempts have failed.

Physicians should be able to review claims processing edits that private entities develop for use in Medicare, including those that are proprietary.

Recommendations on the Office of Inspector General (OIG) Financial Audit of HCFA

1.

2.

The entity that conducts the financial audit of HCFA should report its results in a more judi- cious manner; before releasing the report, it should discuss its findings with-and allow comment from-the audited agency and reprec sentatives of the providers audited.

The financial audit of HCFA should not charac- terize as fraud and abuse-or include in its estimates of potential savings from the reduction of fraud and abuse-payments for claims alleged to be improper because of inadequate documenta tion, coding errors, or reasonable differences of opinion on the medical necessity of the service provided. It should report only payments for claims for which there is evidence that the physician had acted “in deliberate ignorance of the truth or falsity of the information” or “in reckless disregard of the truth” (the statutory definition of program abuse) or “knowingly and willfully executed, or attempted to execute, a scheme to defraud any health care benefit pro* gram” (the statutory definition of fraud).

Recommendations on HCFA Prepayment Review

1.

2.

HCFA’s random prepayment review of claims should not require a physician to supply sub- stantiating documentation before it has made the determination of payment.

HCFA should instruct its Medicare carriers to use screens only to flag cases for further review, and not to deny payments for covered services automatically.

3. HCFA should publish all Medicare carrier screens nationwide, including local screens, frequency screens, and computer edits to identify claims for medical review.

Recommendations on HCFA Post-Payment Review

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2.

3.

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9.

The audited physician should have due process and the right to review the post-payment audit sample with the review personnel.

Carriers should publish and make publicly available all regulations enforced by post-pay ment review personnel.

Carriers should not seek repayment until the physician has exhausted all appeals and an accurate overpayment amount has been established.

There should be limits on the annual interest rate charged against physicians, and the carrier should pay interest at the same rate to physicians for any repayment amounts it has recouped in error.

Carriers should not apply new policies to old claims retroactively in post-payment utilization review (PUR) audits.

Carriers should not deny claims by extrapolating findings from a statistical sampling to all claims submitted by a physician for similar services.

HCFA should encourage Medicare carriers to use licensed physicians as hearing officers; they should be of the same specialty and from the same geographical area as the physician who has requested the fair hearing. Before the fair hearing, the carrier should provide the requesting physician with the educational and medical cre- dentials of the hearing officer.

When the amount in dispute equals or exceeds $1,000, physicians should have the option of requesting that an entity not employed by the carrier-such as a peer review organization- review the results of the carrier’s post-payment comprehensive medical review.

HCFA should refrain from an across-theeboard increase in post-payment review based solely on OIG’s 1996 financial audit.

Recommendations on OlG’s Authority and Procedures

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2.

3.

OIG should be more selective in using its authority in future investigations, until there is a thorough regulatory review of its authority to investigate fraud and abuse and to negotiate settlements, and until there are clear guidelines to distinguish billing errors from fraud.

If an investigation does not yield a case refer0 able to OIG or the Department of Justice (DoJ ), and the Medicare carrier fraud and abuse unit had requested records or other information from hospitals, insurers, suppliers or other sources, the unit should notify those sources that it has absolved the physician.

OIG should increase its efforts to work with the physician community by collaborating with medical societies to create educational programs specifically targeted to reduce fraud and abuse.

Recommendations on the Use of the False Claims Act

1.

2.

DoJ should be more selective in using the False Claims Act in future investigations, until there is a thorough regulatory review of the Act, establishing clear guidelines to distinguish billing errors from fraud.

Congress should enact HR 3523, “The Health Care Claims Guidance Act,” to:

A.

B.

c.

D.

Establish a de minimis threshold requiring that the amount of damages in dispute be a material amount for an action brought under the False Claims Act;

Establish safe harbors for health care claims submitted in compliance with government advice or written policies;

Establish safe harbors for health care claims submitted in substantial compliance with a model health care compliance plan to be issued by the secretary of the Department of Health and Human Services (HHS); and

Change the standard of proof in the False Claims Act from “preponderance of evidence” to “clear and convincing evidence.”

Recommendations on the Role of HCFA Carrier Medical Directors (CMDs) and Carrier Advisory Committees (CACs), and the Use of Local Medical Review Policy

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6.

State medical societies and Medicare CACs should participate in the discussion and resolution of valid physician problems over the way Medicare carriers apply medical review criteria and related issues.

Carriers should provide a 60-day public comment period for all proposed policy changes (the comment period now is 45 days).

At the conclusion of the comment period, the carrier should state in writing its reasons for accepting or rejecting the comments in framing the final policy.

Before the final policy takes effect, the carrier should release it to the medical community and, when necessary, conduct educational forums to ensure proper implementation. The carrier should provide adequate notice (a minimum of 90 days) before the policy goes into effect.

HCFA should provide access to a medical director in each state.

HCFA should continue to support physician development of local medical review policies through CACs.

Recommendations on Reducing Fraud and Abuse in Skilled Nursing Facilities (SNFs)

1.

2

HCFA should encourage physician involvement in nursing home care by allowing physicians to bill and receive reimbursement for the care plan oversight services they provide to Medicare beneficiaries in SNFs.

As the General Accounting Office (GAO) has recommended, there should be federal penalties for unauthorized disclosure of patient medical records, and Medicare’s claims processing sysd terns should incorporate warning controls.

Recommendations on Reducing Fraud and Abuse in Home Health Services

1.

2.

HCFA should encourage physicians to provide extensive care plan oversight services for Medicare beneficiaries who receive home health and hospice services, by recognizing and paying for care plan oversight services that require more than 60 minutes a month.

HCFA should implement the OIG recommendations to:

A. Develop a reimbursement methodology for

B.

c.

home health services that incorporates:

I. A system of pre-authorizations; II. A copayment; and III. A case management system.

Emphasize the definition of “homebound” in the Medicare home health agency (HHA) manual and include additional guidelines on the standards for “considerable and taxing effort” and “infrequent or for periods of relatively short duration.”

Augment focused medical reviews with interviews of physicians and beneficiaries to confirm the appropriate provision of services.

D. Require that, to qualify for Medicare

E. Develop a data bank of owners, principals and other home health agency officials and related organizations, to cross-reference their activity and to identify fraudulent practitioners and businesses.

E Before certification, assure that new HHAs are financially sound, that they have adequate fiscal record keeping, and that their owners and principals are qualified and trustworthy.

U. Conduct extensive background checks to determine the suitability of an HI-IA; if appropriate, refuse to enroll any HHA whose owners or principals:

certification, an HHA must have a majority of its principals with previous health care experience directly related to the provision of home health services.

- Owe money to the federal government

from Medicare overpayments, tax liens, or unpaid loans;

- Have filed bankruptcy or have negative credit ratings;

- Have previous criminal records; or

- Have associated with-or are relatives of the owner of-a Medicare provider found guilty of fraud, abuse or misappropriation of Medicare dollars.

H. Preclude the discharge of Medicare debts through bankruptcy.

Recommendations on Reducing Fraud and Abuse in Hospice Care

HCFA should implement the OIG recommendations to:

1.

2.

3.

Prohibit the hospice practice of paying nursing facilities more for “room and board” than the hospices receive from the state Medicaid agencies on behalf of dually eligible beneficiaries.

Inform hospices that marketing materials should feature Medicare eligibility requirements prominently; in addition, HCFA should monitor the use of sales commissions as incentives for patient recruiting.

Strengthen claims processing controls at the regional home health intermediaries with more focus on front-end reviews and nontraditional, suspect, or exceedingly vague diagnoses.

Recommendations on Reducing Fraud and Abuse in Ordering Durable Medical Equipment (DME)

1.

2.

3.

DME order forms and prescriptions should not require physicians to provide more information than they do now.

Because it provides the equipment and receives the reimbursement, the DME supplier should be responsible for submitting appropriate documentation to the preauthorization entity.

The supplier should be responsible for obtain- ing copies of records from the hospital, or from the physician chart if necessary, and should pay a reasonable fee for the records.

4.

5.

6.

The supplier should follow the appropriate Medicare guidelines when recommending DME; the supplier should indicate on the certificate of medical necessity or DME order form both the cost of the recommended item and appropriate information indicating its medical necessity; the supplier should include with the order the appropriate Medicare guidelines for ordering the recommended DME item, for the physician to evaluate when prescribing the DME item; if originating the DME order, the supplier should attest to the patient’s need for the DME item.

HCFA and medical specialty societies should increase their efforts to educate physicians, sup pliers and patients on their roles in reducing fraudulent and abusive DME ordering.

HCFA should implement the OIG recommendations to:

A.

B.

c.

D.

Conduct onsite visits at applicants’ physical locations;

Require program training for new suppliers;

Increase the review of inactive supplier numbers; and

Impose a six-month waiting period on previously denied applicants.

Recommendations on the Use of the Evaluation and Management (E/M) Documentation Guidelines

1.

2.

3.

4.

HCFA should pilot-test the revised guidelines nationally before the American Medical Association (AMA) Current Procedural Terminology (CPT) Editorial Panel adopts them for use.

HCFA should perform an economic analysis (e.g., one that considers the time devoted to fulfilling the documentation requirements rather than providing patient care), to study the guidelines’ impact.

HCFA and other auditors should recognize that any HCFA-AMA documentation guidelines are not the only coding standards, but a guide. Auditors also should recognize alternac tive coding guides as they become available.

HCFA should use the new documentation guidelines for E/M services initially as an educational tool to assist physicians in improving

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the documentation of their E/M services. Carriers, OIG or other auditors should not use the documentation guidelines in a punitive fashion during an initial review of the physician’s claims. Instead, auditors should provide education and feedback to assist the provider in improving documentation.

Claims denial or fraud and abuse investigations should begin only after a physician has failed to improve documentation or when there is reason to suspect fraud or abuse.

The new documentation guidelines for E/M services should be open to annual improvements by allowing medical societies to suggest changes to the CPT Editorial Panel. Medical record audits should not apply the new documentation guidelines retroactively to services rendered before the guidelines’ full implementation.

HCFA should increase its educational activities on the content and use of the new docue mentation guidelines by requiring that its carriers send-at a minimum-a copy of the guidelines to each physician who provides services to Medicare patients. HCFA and its carriers should not saddle medical societies with this educational responsibility.

HCFA should use the information obtained from its medical review of E/M claims documentation to provide educational feedback to the physician community on the appropriate use of the new documentation guidelines for at least six months before denying payment for claims.

HCFA should use the documentation guide* lines only to review physicians whose utilizae tion-i.e., patterns of care-indicates that they are outliers. For example, using statistical pro- files that recognize severity of patient case mix, a carrier first would identify that a physician has an unusual pattern of utilization of the E/M codes; the carrier could request documentation from such outlier physicians and compare it with the guidelines. If the physician’s documentation is not in compliance, HCFA should advise the physician and offer educational assistance on how to improve documentation-but it would not deny claims based on this initial review.

OIG should inform the medical community how it will use the documentation guidelines in the reviews.

11. OIG should work with the medical communi~ ty-including national medical specialty soci-

etiesto develop a model compliance plan using the HCFA data from medical review activities to educate physicians further on docc umenting E/M services properly.

12. HCFA and OIG should acknowledge that inadvertent coding errors and inadequate documentation do not constitute fraud or abuse.

13. HCFA and OIG should not include billing errors or inadequate documentation in estimates of fraud and abuse, and should be care* ful not to sanction providers who commit honest mistakes and do not engage in fraudulent or abusive behavior.

14. HCFA and AMA should educate physicians more about the use of time as a factor in docue menting their services.

15. If billing entities not under the direct employ* ment of the physician (e.g., billing companies, medical services organizations, physician-hospital organizations, etc.), recode physician-submitted encounter forms or do the actual coding, fraud and abuse investigations should not target the physician or impose sanctions for acts or errors not under the physician’s control.

16. HCFA and OIG should work with AMA and physician specialty societies to draft, adopt and regularly revise any audit tools and algo- rithms-as well as teaching programs to educate the personnel who conduct audits for carriers or federal agencies. In addition, HCFA and OIG should publish these tools, algo- rithms and related materials and make them available for an adequate period of notice and comment before applying them.

17. An appropriate, independent, government agency-such as GAO-should monitor HCFA and OIG in th e proper implementation and use of the documentation guidelines.

Recommendation for the Establishment of a National Fraud and Abuse Commission

Congress should establish a national commission to investigate the nature, magnitude and cost of health care fraud and abuse; this commission should enable the government-appropriate federal agencies and congressional committees-to work with the medical community to study the extent to which health care fraud pervades the Medicare program.

P hysicians, providers and suppliers have an obligation, under law, to conform to the requirements of the Medicare program. The

government can prosecute fraud and abuse committed against the Medicare program under various provisions of the U.S. Code of Federal Regulations and can impose restitution, fines and-in some cases- imprisonment. In addition, there also are administrative sanctions-such as exclusion from participation in the Medicare program-as well as civil monetary penalties, when warranted.

This paper discusses fraud and abuse in Medicare, and describes the programs that the federal govemment has developed to combat the problem, as well as the hassles that have resulted. This paper also pre- sents recommendations by the American Society of Internal Medicine (ASIM) to reduce fraud and abuse while maintaining a positive practice environment for physicians and other providers.

What Is Fraud?

Medicare defines fraud as making false statements or misrepresentations of material facts to obtain a benefit or payment. Fraud can benefit either the person committing it or some other party. To prove fraud against the government, it is necessary to demon- strate that the person acted knowingly, willfully and intentionally. The government must prove that the person acted in deliberate ignorance or reckless disregard of the truth. Examples of fraud include-but are not limited to-the following:

Billing for services that were not furnished or supplies not provided;

Altering claims forms or receipts to receive a higher payment amount;

Billing Medicare as well as the beneficiary, Medicaid or some other insurer in an effort to receive greater payment than allowed;

Offering, paying, soliciting or receiving bribes, kickbacks or rebates, directly or indirectly, in cash or in kind, to induce patient referrals or the purchase of goods or services that Medicare pays for;

l Describing a noncovered service in a way that makes it appear to be a covered service;

l Billing a person who has Medicare coverage for services provided to another person not eligible for Medicare;

l Repeatedly violating the participation agreement, assignment agreement, and the maximum allow- able actual charge limits;

l Completing certificates of medical necessity (CMN) for patients not personally or professionally known; and

l Allowing suppliers to complete a CMN.’

The U.S. Department of Justice (DoJ) prosecutes fraudulent claims under the federal False Claims Act. The False Claims Act imposes civil liability on any person or entity submitting a false or fraudulent claim for payment to the U.S. government. This paper discusses the False Claims Act in more detail on page 22.

What Is Abuse?

Abuse describes practices that--either directly or indirectly-result in unnecessary costs to the Medicare program. Many times, abuse appears similar to fraud, except that it is not possible to establish that a person committed the abusive acts knowingly, willfully and intentionally.

HCFA uses three standards to determine abusive acts:

( 1) Was the service medically necessary?

(2) Did the service conform to professionally recognized standards?

(3) Was the service provided at a fair price?’

Who Is Responsible for Investigating Waste, Fraud and Abuse in Medicare?

The Office of the Inspector General (OIG), in the Department of Health and Human Services (HHS), is responsible for investigating instances of waste,

fraud and abuse in the Medicare and Medicaid programs. OIG concentrates its efforts in the following areas:

l Conducting investigations of providers suspected of waste, fraud or abuse to determine whether criminal, civil or administrative remedies apply;

l Conducting audits, special analyses and reviews to discover and document Medicare and Medicaid policy and procedures that contribute to waste, fraud or abuse, and recommending corrections;

l Conducting reviews and special projects to determine the level of effort and performance in controlling health provider fraud and abuse;

l Informing the health care community, Congress, other interested organizations, and the public about OIG’s activities in maintaining the integrity of health care financing;

l Collecting and analyzing Medicare contractor and state Medicaid agency-produced information on resources and results; and

l Participating with other government agencies and private health insurers in special programs to share techniques and knowledge for preventing health care provider fraud and abuse.3

OIG relies heavily-but not exclusively-on the investigative efforts of HCFA and its carriers to detect fraud and abuse. Complaints from Medicare beneficiaries or their relatives and other physicians or providers can trigger investigations as well.

Additionally, OIG has initiated investigations by scrutinizing specific practices of various segments of the health care industry, such as home health or medical equipment suppliers.

When conducting an investigation, OIG will attempt to gather all possible documentation and interview all other parties involved before contacting the provider under investigation. If OIG determines that the provider has engaged in fraudulent or abusive behavior, he or she may be subject to criminal penalties, civil monetary penalties, or sanctions (i.e., exclusion from participating in Medicare, Medicaid and other federal programs). DoJ prosecutes physicians and providers for fraud.

What Is the Hassle Factor?

ASIM’s 1990 policy paper, “America’s Health Care System Strangling in Red Tape,” defined the “hassle factor” as:

77~ increasingly intrusive and often irrational udminis- trutive, regulatory review and paperwork burdens being phed on patients and physicians by the Medicare program and other insurers.

While it is important to root out fraud and abuse in the Medicare program, we must balance this goal with concerns about unnecessarily heightening the hassle factor for physicians and their patients. This paper offers a series of recommendations to reduce fraud and abuse in Medicare without increasing the hassle factor.

The Current Regulatory Environment

0 ver the past 17 years, three consecutive administrations (Reagan, Bush and Clinton) have pledged to reduce Medicare red tape.

There has been some progress-the elimination of unnecessary certification requirements, the improve- ment of a few forms, and the establishment of procedures to allow physicians a greater voice at both the local and national levels in developing Medicare requirements. But the limited progress to date is now at risk of reversal. A new tidal wave of audits, prepayment screens, certification, documentation and paperwork hassles has hit physicians-this time, to rid Medicare of waste, fraud and abuse. The original source of most of this is not the bureaucracy itself, but Congress.

In each of the past two years, Congress has passed laws to increase penalties for fraud and abuse; to expand the definition of abusive practices to include upcoding and billing for medically unnecessary services; and to increase funding for enforcement activities. It has also called HCFA to task for not doing enough to rid the Medicare program of fraud and abuse, even holding up confirmation of new HCFA Administrator Nancy-Ann Min DeParle last year until she assured Congress that the agency would devote even more resources to fraud and abuse enforcement. HCFA and OIG have responded by increasing their scrutiny of the billing practices of commercial laboratories, home health agencies, hospitals, teaching institutions, and-it appears-physicians.

The reason that fraud and abuse enforcement has become popular with members of Congress is that they think it will bring huge savings at minimal political risk. OIG claims that more than $20 billion is wasted each year on abusive and fraudulent billing practices. However, HCFA’s own analysis of the OIG study that produced these estimates indicates that the estimates could be off by $10 billion or more. Regardless of the amount, opinion polls show that the public overwhelmingly prefers increased govemment scrutiny of Medicare providers instead of means-testing, benefit cuts, or other proposals to reduce Medicare spending.

But no one knows how much this can save. There is

little doubt that a small number of laboratories, hospitals, durable medical equipment (DME) suppliers, home health agencies--and even physicians-are engaged in billing practices that are abusive and/or fraudulent. However, much of what OIG counts as fraud and abuse actually represents innocent mistakes or reasonable disagreements on how to code, bill or document for a service-many of these services do not fall under the statutory definition of fraud and abuse.

Practical Implications of Increased Fraud and Abuse Enforcement

OIG so far has invested its resources in going after large providers, which promise the highest potential dollar return. Commercial labs have been at the top of the list, followed by home health agencies, DME suppliers, and some physician teaching institutions. Few physicians in solo or small group practices have fallen directly under OIG’s microscope. But it probably won’t be long before some of the mid-to-large sire physician group practices find their coding, billing and documentation practices under investigation.

Even if OIG never visits them, virtually all physicians will feel the impact of the government’s cru- sade against fraud and abuse. Routine post-payment audits by Medicare carriers will increase. Even though such audits rarely result in a referral to OIG for possible violations of the fraud and abuse laws, carriers can ask physicians to pay back tens of thousands of dollars, plus interest, for “overpayments” if it determines that the documentation in the medical records does not support the codes submitted to Medicare. Even if the much-despised documentation requirements for evaluation and management (E/M) services are eased-as ASIM has advocated-physicians whose medical records don’t support the level of service that was billed will be at risk. Also, the use of prepayment screens-which kick out a claim for further review before it will be paid-also will increase.

In egregious situations where a physician consistent- ly refuses to improve documentation and coding practices-after a carrier has advised that there is a problem-the carrier can call in OIG to determine if the physician has engaged in “reckless disregard” or “deliberate ignorance” of the truth-grounds for

civil monetary penalties. ASIM is concerned that these civil penalties are so severe-$10,000 per service, with a maximum of three times the amount that was falsely claimed, plus a possible five-year exclusion from the Medicare and Medicaid programs- that most physicians would likely settle with OIG before an investigation can be completed thor- oughly, rather than risk going to court.

Even when OIG’s target is not physicians but other suppliers and providers, physicians still will feel the effect. For instance, to protect themselves, some commercial laboratories already are insisting that physicians document the medical necessity of each test ordered, even within a lab profile. Home health agencies are likely to insist that physicians spend more time documenting treatment plans, since the home health agency is at risk if reviewers find that it billed for medically unnecessary services. Physicians too can be in violation if they “falsely” certify the need for home health services.

ASIM’s Proposed Principles on Fraud and Abuse

ASIM believes that an effective strategy to reduce fraud and abuse -without imposing excessive hassles on honest physicians and their patients-should follow these principles:

1. The medical profession must have zero tolerance for real fraud and abuse, and be willing to lend support to effective and reasonable proposals for increased government enforcement in the Medicare program.

In the current environment, physicians cannot and should not be perceived as standing against reasonable approaches for reducing fraud and abuse (and implicitly, with those few dishonest practitioners who are stealing from the Medicare program). ASIM and the rest of organized medicine should support the federal government when it proposes reasonable measures to combat fraud and abuse.

2. The federal government should enlist physicians as allies in fighting fraud and abuse-not view them as adversaries.

The vast majority of physicians are honest. If called on, they will be allies of the federal government in uncovering waste, fraud and abuse in the Medicare program. The government’s current approach of imposing more red tape on honest physicians-and making everyone anxious about possible investigation- is counterproductive to enlisting the profes-

sion as a partner against fraud and abuse.

3. Oppose government policies that place excessive hassles on honest physicians.

ASIM objects to enforcement activities that impose excessive and unnecessary documentation and certification requirements on honest internists. Exposing physicians to routine audits and prepayment screens is not justifiable. Documentation requirements must be reasonable and realistic, and the forms and procedures for certifying DME, home health and hospice care must not require an excessive amount of time to complete. The government should emphasize reviews of providers whose billing practices show patterns that suggest abuse, and not harass everyone else.

4. Oppose unfair and coercive enforcement tactics.

The agencies that enforce fraud and abuse laws should not be permitted to coerce honest practitioners into costly settlements due to unintended coding or documentation errors.

5. The federal government must distinguish between innocent mistakes and program abuse.

The federal government diminishes its credibility when it defines inadvertent billing errors, inadequate documentation, and disagreements over medical necessity as fraud and abuse. By including these in its estimates, the federal government sends a mes- sage to the public that fraud and abuse is far more prevalent than it is; this unfairly impugns the repu- tation of honest practitioners. It also trivializes the cases in which dishonest individuals have sought to abuse or defraud the Medicare program.

6. The medical profession should work together with the government to assist physicians to improve their billing, coding and documentation practices so they are not at risk of audit, investigation or sanctions.

rmally, ASIM, the American Medical Association (AMA), other medical societies, and the federal agencies responsible for fraud and abuse enforcement should work together to help physicians understand where they are most at risk of engaging in activities that could lead to suspicion of program abuse. (Even if the auditors find no abuse, no one wants to go through a medical records audit). Most physicians will implement improvements in their documentation, coding and billing practices if they receive the education and the tools in a nonpunitive environment.

The recommendations presented in this paper provide a strategy to reduce fraud and abuse that is consistent with these six principles.

T he Balanced Budget Act of 1997 (BBA ‘97), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) are

two major legislative efforts that have increased and enhanced the scrutiny on those who provide health care services to Medicare recipients. OIG focuses on these services through its chief financial audit and through its ongoing Operation Restore Trust (ORT) audits and inspections, as well as several demonstration projects.

The Balanced Budget Act of 1997

Providing for assistance in controlling fraud and abuse, BBA ‘97:

l Excludes for at least 10 years from Medicare or from any state health care program anyone convicted on one previous occasion of one or more health care related crimes, including patient abuse, program-related crimes, or felonies related to con- trolled substances. It permanently excludes anyone convicted at least twice of such crimes.

l Authorizes the HHS secretary to terminate, refuse to enter into, or refuse to renew an agreement with a provider convicted of a felony under federal or state law for an offense inconsistent with the Medicare program’s best interests.

l Provides a civil monetary penalty (CMP) up to $10,000 if a person arranges or contracts for the provision of items or services from an individual or entity excluded from a federal health care program. It can assess the individual or entity up to three times the amount claimed.

l Levies a CMP of up to $50,000 plus up to three times the amount of remuneration offered, paid, solicited or received for each violation of the anti- kickback provisions of title XI of the Social Security Act.

l Phases-in a prospective payment system (PPS) for skilled nursing facility (SNF) care that would pay a federal per diem rate for SNF services. The per diem payment would cover routine, ancillary and capital-related costs.

l Requires payment for all Part B items and services related to SNFs to be made directly to the facility.4

BBA ‘97 also requires changes to the Medicare Handbook, to reduce fraud and abuse by encouraging beneficiaries to review claims for accuracy and to report any errors or questionable charges; describing beneficiary rights to request an itemized statement from the provider for Medicare items and services; explaining the beneficiary incentive program established under HIPAA; and listing OIG’s toll-free complaint hotline number.’

Similarly, BBA ‘97 requires that explanations of Medicare benefits must contain a list of items or services provided and the amount of payment; a notice of the individual’s right to request an itemized statement; and a toll-free number to report suspected fraud and abuse. Additionally, hospital discharge planning evaluations must include a list of the home health services available in the area, and must disclose if the hospital has a financial relationship with any home health services.6

The Health Insurance Portability and Accountability Act of 1996

HIPAA-also known as the Kassebaum-Kennedy Act-has increased the funding for Medicare program safeguards. HIPAA legislation created a stable source of funding for fraud control. This law also established the Health Care Fraud and Abuse Control Account, which receives annual deposits from the Medicare Part A Trust Fund to finance expanded fraud and abuse controls.

OIG and DoJ divide the additional funding-$104 million in 1997 and $120 million in 1998-to coor- dinate federal, state and local health care law enforcement programs; conduct investigations, audits, evaluations and inspections relating to the delivery and payment of health care; facilitate enforcement of civil, criminal and administrative statutes on health care fraud and abuse; provide guidance to the health care industry on fraudulent health care practices; and establish a national data bank to receive and report final adverse actions against health care providers.

According to the Administration, the program already has paid off. Since October 1996, OIG has resolved approximately 420 cases that led to settlements totaling approximately $1 billion for the Medicare Trust Fund. DoJ’s efforts have increased the number of health care fraud convictions by 240 percent since 1992.7

Medicare carriers also received additional resources to educate the provider billing community-including hospitals, physicians, home health agencies and laboratories-about Medicare payment rules and fraudulent activity. This education covers current payment policy, documentation requirements and coding changes through quarterly bulletins, fraud alerts and seminars, as well as through local medical review policy.

Before enactment of the Kassebaum-Kennedy bill, claims review and provider audit activities did not keep pace with the number of submitted claims. Between 1989- 1996, the number of Medicare claims climbed 70 percent, to more than 800 million, while claims review resources grew by only 11 percent. As a result, there were fewer and less comprehensive audits. This suggests that before HIPAA there was less threat that reviewers would identify and prosecute fraudulent and abusive activity in Medicare.8

It is also important to note that HIPAA amended fraud and abuse laws to sanction physicians and other providers for program abuse-overing such things as upcoding and billing for medically unnecessary services- under the statute’s CMPs, only if the person had acted “in deliberate ignorance of the truth or falsity of the information, or . . . in reckless disregard of the truth.” Fraudulent activities that carry criminal penalties require that the person was “knowingly and willfully executing, or attempting to execute, a scheme or artifice to defraud any health care benefit program, or to obtain by false pretenses any money or property under the custody of a health care benefit program.”

The report from the House and Senate conference committee that developed the final wording of HIPAA states that Congress

[does] not intend to penalize the exercise of medical judgment wr health care treatment choices made in good faith, and which are supported by significant m&d evidence or held by a respectable minority of those providers who customarily provide the service. The Act is not intended to penalize providers simply because of a professional difference of opinion regarding diagnosis

and treatment. A sanction is not intended for groviders who submit claims they know will not be reimbursed as medically necessary services, but who are required to submit the claims because beneficiaries need to document that Medicare will not reimburse for a service.

This paper discusses the issue further in the section on E/M documentation guidelines, page 34.

HIPAA also established the Medicare Integrity Program (MIP), to “promote the integrity of the Medicare program by entering into contracts” with private entities. Eligible entities awarded contracts must conduct such activities as:

(1)

(2)

(3)

(4)

Reviewing the activities of providers furnishing items and services reimbursable under Medicare, including medical, utilization and fraud reviews;

Auditing cost reports;

Educating providers, beneficiaries and others about program integrity and quality assurance; and

Developing and periodically updating a list of DME items subject to prior authorization.’

Recommendations on the Medicare Integrity Program

ASIM concurs with AMA policy stating that HCFA should adhere to certain principles during the development of MIF’. ASIM recommends that:

1.

2.

3.

4.

5.

6.

HCFA must hold its carriers accountable to established Medicare criteria and standards- especially in claims processing and customer satisfaction-as MIP assumes responsibility for payment safeguards.

HCFA should monitor the performance of MIP contractors to assure they are accountable to questions and concerns raised by patients and physicians about coverage and other issues.

HCFA should continue due process and appeals mechanisms for physicians.

HCFA should initiate a comprehensive effort to educate physicians about all aspects of MIP.

HCFA should penalize carriers and program integrity contractors for failing to meet estabc lished criteria and standards.

HCFA should solicit local physician input on

7. Physicians should be able to request and receive an administrative law hearing to challenge a carrier’s performance of its administrative and other policy requirements, if earlier resolution attempts have failed.

8. Physicians should be able to review claims processing edits that private entities develop for use in Medicare, including those that are proprietary.

F ror the most part, HCFA follows these policies in regard to the traditional Medicare carriers. But HCFA must assure the physician community that these policies will apply to the new MIP contractors as well. Furthermore, HCFA must educate the physician community about the MIP initiative.

the adequacy of carrier performance-for both claims processing and program integrity.

The agency released a proposed rule regarding the MIP program on March 20, 1998, but the rule does not address specifically the eight recommendations above. HCFA states in the rule that it can terminate an MIP contractor for conflict of interest and discusses some accountability standards for commu- nicating with HCFA, maintaining records, and ml- filling contractual obligations-but it does not address ASIM’s specific recommendations for accountability.

The rule indicates that MIP contractors must establish and maintain procedures to grant an individual enrolled under Medicare Part B the opportunity for a fair hearing. HCFA does not mention any effort to educate the physician community about the MIP program. The rule does not discuss penalties for failing to meet established MIP criteria and standards. The rule does not discuss any plans to allow local physicians and other Medicare providers to offer input on MIP activities-yet HCFA must address this issue to avoid potential problems of excessive oversight in the future.

The rule also does not allow physicians to review the various electronic claims processing technologies that HCFA contractors plan to use to prevent erroneous payment for Medicare claims. ASIM is concerned that private entities with MIP contracts will purchase commercial off-the-shelf software or develop “black box” coding edit systems. ASIM strongly believes that such closed edit systems are inappropriate.

The Medicare Correct Coding Initiative has demonstrated the need for a coding edit system open to peer review. ASIM and other medical organizations identified many inappropriate coding edits in the Medicare correct coding system when it became available for public review. HCFA later retracted or altered hundreds of these. The claims payment system will be more accurate because of this peer review. If the Correct Coding Initiative had been a closed system, then many inappropriate edits would have remained, denying payment for appropriately provided services.

Operation Restore Trust

ORT began as a two-year demonstration project in May 1995. This anti-fraud-and-abuse initiative concentrated on five states: California, Florida, Illinois, New York and Texas. It focused on home health care, nursing homes, hospice, and medical equipment and supplies. The initiative’s key ele- ments were: guaranteed funding for anti-fraud and abuse activities; local control; and a coordinated effort involving multiple federal and state agencies--GIG, HCFA and the Administration on Aging, as well as state agencies on aging, state sur- vey and certification agencies, Medicaid agencies, Medicare contractors, and DoJ. According to OIG, the two-year project:

l Recovered $23 for every $1 it spent;

l Identified more than $187.5 million in fines, recoveries, settlements, audits and CMPs owed to the federal government;

l Achieved 74 criminal convictions, 58 civil actions and 69 current indictments; and excluded 2 18 providers from Medicare (there are currently 210 pending cases, 155 of which are joint investigations with other law enforcement agencies);

l Issued 47 audit and inspection reports (another 31 audits and evaluations are still under way);

l Completed reviews at 168 home health agencies (HHAs) and nursing homes;

l Established in June 1995 a special hotline, which has received more than 13,000 complaints related to fraud and abuse; and

l Trained thousands of paid and volunteer long- term care ombudsmen and other providers of aging services to recognize and report fraud and

abuse in nursing homes and other long-term care settingsI’

Although the initial two-year demonstration program has ended, OIG has expanded the scope of ORT nationwide.

OIG Financial Audit of HCFA

The Chief Financial Officer (CFO) Audit Act of 1990 requires HCFA to prepare financial statements that fully disclose its financial position and the results of its operation in a manner consistent with financial reporting standards. The CFO Audit Act aims to improve accounting, financial management, and internal control throughout the federal govern ment to reduce waste and inefficiency, and to provide Congress complete, reliable, timely and consistent information on the financial status of the federal government. In 1994, the Government Management and Reform Act enhanced the CFO Act by requiring the completion and auditing of government-wide and department-wide financial statements. OIG’s fiscal year 1996 audit was the first comprehensive audit of HCFA’s financial statements and related systems.

OIG’s 1996 audit studied more than 5,000 1996 Medicare fee-for-service (FFS) claims, valued at $5.2 million. The study found that approximately 30 percent of the claims reviewed had one form of defi- ciency or another-the most common was a lack of appropriate supporting documentation. Based on these findings, OIG reported that $23 billion in improper payments were made under the Medicare FFS program in fiscal year 1996. It attributed $5 billion-or 22 percent--of these improper payments to physician services.” OIG’s 1997 audit studied more than 8,000 FFS claims and reported that there were $20.3 billion in improper payments-a decline of 12.5 percent from the year before.

ASIM concurs with AMA’s December 1997 testimony to the Practicing Physicians Advisory Council that physicians are “very concerned that the audit has broadened the definition of fraud and abuse.” This concern is warranted, because lack of documentation does not by itself indicate fraud and abuse. Furthermore, ASIM questions the validity and the reporting of the results from the OIG chief financial officer’s audit of HCFA and is concerned about the implications its finding will have on physicians.

Extrapolating the results of the 1996 and 1997 claims review across the entire universe of claims submitted for that year is inappropriate. Both samples were less than 1 one-thousandth of 1 percent of all claims submitted in 1996 and 1997. OIG’s con- clusions are analogous to taking a one-gallon bucket to the Chesapeake Bay, dipping it into the water, analyzing the contents, and then claiming to know the contents of the entire bay.

OIG’s determination that HCFA made $23 billion in improper payments in 1996 and $20.3 billion in 1997 is misleading. Projecting the results of such a microscopic sample to the entire universe of claims is a recipe for inaccurate results-in this case, it has dramatically inflated the estimate of improper payments. OIG’s significant margin of error does not take into account claims that are currently under appeal or that are eligible for appeal. Furthermore, an analysis of first quarter 1997 records indicates that physicians and other Part B providers received increased payments in 70 percent of appeals when carriers initially had denied their claims.” OIG admitted in its 1997 report that its estimate of improper payments could be off by plus or minus 40 percent.

ASIM does not believe it is reasonable or feasible for OIG to study a significant percentage of Medicare claims. However, unless the sample size of a study is large enough to produce scientifically valid results, the results can only be a starting point for identifying and correcting problems-not proof that a large majority of physicians engage in improper billing or fraudulent activities.

The report accompanying OIG’s 1996 financial audit conceded that the “improper payments could range from inadvertent coding mistakes to outright fraud and abuse.” The OIG report continued: “We cannot quantify what portion of the error rate is attributable to fraud.” Again, in 1997, OIG conceded that it could not attribute any specific percentage of the errors to fraud. Despite these concessions, the reporting of OIG’s 1996 and 1997 audits has con- tributed to the public perception that Medicare fraud is rampant. We believe this is a false impression that could have been averted if HCFA and the physician and provider community were allowed to review and comment on the OIG report before its release.

Recommendations on the OIG alleged to be improper because of inadequate

Financial Audit of HCFA documentation, coding errors, or reasonable

1.

2.

The entity that conducts the financial audit of HCFA should report its results in a more judi- cious manner; before releasing the report, it should discuss its findings with-and allow comment from-the audited agency and representatives of the providers audited.

The financial audit of HCFA should not char* acterize as fraud and abuse--or include in its estimates of potential savings from the reduction of fraud and abuse-payments for claims

differences of opinion on the medical necessity of the service provided. It should report only payments for claims for which there is evic dence that the physician had acted “in deliberate ignorance of the truth or falsity of the information” or “in reckless disregard of the truth” (the statutory definition of program abuse) or “knowingly and willfully executed, or attempted to execute, a scheme to defraud any health care benefit program” (the statutory definition of fraud).

B 0th HCFA and OIG have begun to implement a corrective action plan in response to OIG’s 1996 financial audit of HCFA.

Although HCFA recognizes that further scrutiny of provider billing and additional documentation to substantiate billing will increase hassles, it intends to implement the following initiatives: prepayment claims review and prepayment medical frequency screening, post-payment utilization review, fraud and abuse audits, model compliance plans, and expan- sion of the roles of contractor medical directors and carrier advisory committees.

Prepayment Claims Review and Prepayment Medical Frequency Screening

HCFA intends to increase&the percentage of claims its contractors subject to medical review in 1998. Further action-such as expanding the scope of services subject to prepayment review of medical documentation-will depend on what this random review and future CFO audit reports find.

Prepayment review of documentation is costly and time consuming for physicians and Medicare carriers alike. ASIM doubts that prepayment review will generate the savings to justify the resources it expends. Requiring additional documentation during prepayment review will slow down claims processing unnecessarily. ASIM also is skeptical about the benefits of a systematic increase in the number of claims subjected to post-payment review. While an increase in aberrant billing or beneficiary complaints should trigger an increase in post-payment review, mandat- ing an increase in the number of reviews is unlikely to bring the desired results. While the percentage of claims reviewed decreased by almost 50 percent during 1990- 1996, HCFA’s return on investment actually doubled-because it found the same amount of aberrant billing patterns at different review levels.13

In its statement regarding OIG’s audit of HCFA before the House of Representatives Committee on Ways and Means Subcommittee on Health in July 1997, HCFA acknowledged that OIG’s substantive claims testing audit-which requires medical personnel from the contractor or a peer review organi-

zation- is costly and time consuming. HCFA stated: “...Because of the significant expense involved in this type of review, the amount of overpayments might not be recouped, after the cost of review is considered.“14

ASIM believes that Medicare’s billing regulations already are too complex. Although each individual policy may appear reasonable, complying with myri- ad requirements while treating patients is becoming increasingly difficult. A physician must be knowl- edgeable about HCFA national directives, what sub- stantiates a particular level of service under the E/M documentation guidelines, what coding combinations the Correct Coding Initiative has identified as inappropriate, and how to bill for services involving a resident physician, as well as numerous carrier-specific policies. Medicare carrier bulletins disseminate these policies to physicians in a disjointed manner. ASIM believes that increasing the scrutiny of physician claims for services will not strike at the root of the problem; instead, HCFA needs to fix the current system, which makes compliance exceedingly difficult even under ideal conditions.

ASIM also believes that HCFA should clarify its carriers’ use of prepayment screens. HCFA mandat- ed that carriers establish prepayment screens to limit the number of times they reimburse a physician for specified services per patient per year. These screens flag claims for review. The carrier then pulls the claims for more detailed scrutiny and determines whether or not to pay the claim. This is to ensure the provision of necessary services only. Frequently, claims for medical services hit the screens and receive automatic denial. Physicians then must resubmit the claims; eventually, the carrier pays many of these as originally billed, resulting in increased correspondence and administrative expense.

Recommendations on HCFA Prepayment Review

1. HCFA’s random prepayment review of claims should not require a physician to supply sub, stantiating documentation before it has made the determination of payment.

2.

3.

HCFA should instruct its Medicare carriers to use screens only to flag cases for further review, and not to deny payments for covered services automatically.

HCFA should publish all Medicare carrier screens nationwide, including local screens, frequency screens, and computer edits to identify claims for medical review.

Post-Payment Utilization Review

A medical review determines whether a claim for services meets Medicare’s requirements for payment. Medical review can occur before or after payment of a claim. Whenever possible, this review is automated to avoid the costs of manual documentation review. A claim does not ordinarily include documentation. However, documentation-or some type of external manual review -is necessary to detect many kinds of errors.

Carriers have authority to request a physician’s patient records in order to conduct a review or audit of the claims that the physician submitted. Sometimes carriers change their payment policies- either due to national changes or to local medical review policies-and use the new policies to audit records for claims submitted when the old policy was in effect. 010s PATH (physicians at teaching hospitals) initiative is a large-scale example of the inequity of retroactive application of Medicare policies. A physician who receives notification of a repayment demand from an audit has 30 days to make the repayment, even if the physician files an appeal. Requests for sizeable repayments can cause hardship for the physician.

The post-payment utilization review (PUR)-or medical review-is the auditing mechanism that Medicare carriers currently use. PUR audits a certain number of medical records from a physician’s office to ascertain if the records support the claims submitted. If the carrier determines that a certain percentage of those records contain inappropriately billed services, the carrier applies that percentage to past claims for the same service and demands repayment. For example, if the carrier determines that 10 percent of the services provided from the sample were not medically necessary, or were coded at an inappropriately high level of reimbursement, the carrier can apply that percentage to previous claims and demand repayment from the physician. ASIM not only opposes the expanded use of this sampling tech-

nique but believes that the current technique is inherently unfair.

Using statistical samples of office records is not a valid way to determine appropriateness of care in any individual case, and frequently the “problems” found by audits are due to inadequate documentation, not to improper or “unnecessary” care. Sampling may be an appropriate technique for trig- gering more intensive review of individual claims, but HCFA should not base denials or overpayment requests on the extrapolation of statistical samples alone. ASIM has questioned OIG’s use of this overpayment extrapolation technique. Parties affected by the PATH audits are seeking relief in federal court from OIG’s use of extrapolation based on statistical sampling. To relieve physicians of these hassles, ASIM makes th e o f 11 owing nine recommendations.

Recommendations on HCFA Post-Payment Review

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3.

4.

5.

6.

7.

The audited physician should have due process and the right to review the post-payment audit sample with the review personnel.

Carriers should publish and make publicly available all regulations enforced by postcpayc ment review personnel.

Carriers should not seek repayment until the physician has exhausted all appeals and an accurate overpayment amount has been established.

There should be limits on the annual interest rate charged against physicians, and the carrier should pay interest at the same rate to physicians for any repayment amounts it has recouped in error.

Carriers should not apply new policies to old claims retroactively in PUR audits.

Carriers should not deny claims by extrapolating findings from a statistical sampling to all claims submitted by a physician for similar services.

HCFA should encourage Medicare carriers to use licensed physicians as hearing officers; they should be of the same specialty and from the same geographical area as the physician who has requested the fair hearing. Before the fair hear, ing, the carrier should provide the requesting physician with the educational and medical tree dentials of the hearing officer.

8.

9.

When the amount in dispute equals or exceeds $1,000, physicians should have the option of requesting that an entity not employed by the carrier-such as a peer review organization- review the results of the carrier’s post-payment comprehensive medical review.

HCFA should refrain from an acrosscthe-board increase in postcpayment review based solely on OIG’s 1996 financial audit.

Fraud and Abuse Audits

It is important to note that a medical review rarely leads to a fraud and abuse investigation. Medical review does not inherently indicate fraudulent or abusive behavior. ASIM recognizes the need for OIG to investigate suspected fraud and abuse, but remains concerned that OIG could use its authority to the detriment of honest physicians. Even OIG acknowl- edges that providers who engage in fraudulent activities are in the minority. In an open letter to health care providers, OIG states: “Through cooperative efforts we can best ensure the success of initiatives to identify and penalize the relatively few dishonest providers whose fraudulent activities are eroding the solvency of the federal health programs and undermining public confidence in the health care industry.“15

Periodically, the inspectors initiate investigations and interview the health care entities that work with the provider under investigation to gather information. However, the investigators never inform these sources when the investigation is over or whether it found anything. This can leave a negative impression of a physician who ultimately was exonerated of any wrongdoing. This lack of followup is inappropriate and harmful. The investigators should clear the physician with anyone they interviewed when gath- ering information.

ASIM has grounds for its concern that the federal government will be overzealous in its attempt to rid health programs of fraudulent and abusive behavior. OIG may be coercing settlements from teaching institutions through its oversight authority. Providers or institutions often settle with OIG because it is costly to fight the threat of the potentially devastat- ing penalties that a court can impose. Recognizing the government’s right to recoup overpayments, ASIM takes issue with the OIG’s pursuit-in its PATH audits-f billing “problems” that were simple coding and billing errors.

In the PATH audits, OIG conducted nationwide compliance reviews of the Medicare rules affecting payment for physician services provided by residents from 1990-95. Representatives of several institutions under investigation have expressed concern that OIG’s investigation applied billing standards implemented after the services under review. These institutions have stated that HCFA’s regulations govem- ing billing for teaching physician services were unclear until HCFA’s new teaching physician regulations took effect on July 1, 1996, and that the compliance review should not have applied the new standards retroactively.

OIG also develops model compliance plans for providers to improve billing accuracy. OIG developed such a plan in conjunction with the clinical laboratory industry for laboratory billing and related functions. OIG also has worked with the American Hospital Association and the International Billing Association to establish voluntary rules governing hospital and third-party insurance billing, respective- ly. In an open letter to health care providers, HHS Inspector General June Gibbs Brown states that OIG has “been meeting with representatives of several provider groups preparatory to drafting model compliance programs for health care providers.” The letter continues by stating that OIG “is eager to continue this collaboration to expeditiously produce sector- specific compliance programs for each of the health care provider components doing business with the govemment.“16

Recommendations on OIG’s Authority and Procedures

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3.

OIG should be more selective in using its authority in future investigations, until there is a thorough regulatory review of its authority to investigate fraud and abuse and to negotiate settlements, and until there are clear guidelines to distinguish billing errors from fraud.

If an investigation does not yield a case referable to OIG or DoJ, and the Medicare carrier fraud and abuse unit had requested records or other information from hospitals, insurers, suppliers or other sources, the unit should notify those sources that it has absolved the physician.

OIG should increase its efforts to work with the physician community by collaborating with medical societies to create educational programs specifically targeted to reduce fraud .and abuse.

False Claims Act

DoJ prosecutes fraudulent claims under the federal False Claims Act. The False Claims Act imposes civil liability on any person or entity submitting a false or fraudulent claim for payment by the U.S. government. The False Claims Act also prohibits:

Making a false record or statement so that the government will pay a false or fraudulent claim;

Conspiring to have the government pay a false or fraudulent claim;

Withholding or willfully concealing government property to defraud the government;

Making or delivering a false or fraudulent receipt for government property;

Buying government property from someone not authorized to sell it; or

Making a false or deceptive statement to avoid an obligation to pay money or restore property to the govemment.17

It is also improper to cause someone else to submit a false claim. For example, if a subcontractor provides false information to a contractor, who in turn bills the government based on that false information, the subcontractor is liable for the false claim.

Damages under the False Claims Act are severe. A person who violates the act must repay three times the amount of damages suffered by the government plus a mandatory civil penalty of at least $5,000 and no more than $10,000 per claim. This means that, for example, a person who submits 50 false claims for $50 each is liable under the False Claims Act for a minimum of $257,500 [($2,500 x 3) + (50 x 5,000)] or up to a maximum of $507,500 [($2,500 x 3) + (50 x $lO,OOO)] in damages. The stiff penalties have made the False Claims Act one of the government’s favorite tools to combat fraud and abuse in govemment-funded programs.18

The False Claims Act allows an individual who knows about a person or entity submitting false claims to bring a suit on behalf of the government, and to share in the damages recovered as a result of the suit. The person who brings the case is called a “qui turn relator” or “whistleblower.” In the past 10 years, hundreds have filed qui tam suits. These suits have resulted in more than $1 billion in recoveries for the U.S. Treasury. The whistleblowers who filed these suits have received more than $100 million.”

Hospitals across the country have received letters from the offices of U.S. attorneys alleging that physicians and other providers may be guilty of fraudulent billing; the letters threaten to impose treble (i.e., three times) damages plus other fines under the False Claims Act unless the providers reach a quick settlement. This tactic has compelled innocent providers to settle these claims to avoid facing additional fines rather than expending tremendous financial resources and legal expertise to fight the attorney’s accusations. ASIM supports the Health Care Claims Guidance Act (HR 3523) because it would clarify the False Claims Act by distinguishing false claims from honest mistakes.

The Health Care Claims Guidance Act would establish a de minimis threshold, requiring that the amount of damages in dispute be a material amount for an action under the False Claims Act. The Health Care Claims Guidance Act also would establish a safe harbor for health care claims submitted in compliance with erroneous information supplied by a federal agency; and it would establish a safe harbor for claims submitted in substantial compliance with a model plan to come from the HHS secretary. Finally, the Health Care Claims Guidance Act would change the standard of proof under the False Claims Act from “preponderance of evidence” to “clear and convincing evidence.”

Recommendations on the Use of the False Claims Act

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2.

B. Establish safe harbors for health care claims submitted in compliance with government advice or written policies;

c. Establish safe harbors for health care claims submitted in substantial compliance with a model health care compliance plan to be issued bv the secretarv of HHS; 2nd I I _ -__-

A. Establish a de mtnimis threshold requiring that the amount of damages in dispute be a material amount for an action brought under the False Claims Act;

DoJ should be more selective in using the False Claims Act in future investigations, until there is a thorough regulatory review of the Act, establishing clear guidelines to distinguish billing errors from fraud.

Congress should enact HR 3523, “The Health Care Claims Guidance Act,” to:

D. Change the standard of proof in the False Claims Act from “preponderance of ev* idence” to “clear and convincing evidence.”

Role of Carrier Medical Directors and Carrier Advisory Committees, and the Use of Local Medical Review Policy

Carrier medical directors (CMDs), in conjunction with carrier advisory committees (CA&), play a key role in ensuring that local Medicare policies relate to what the medical community views as appropriate standards of medical practice. CMDs and CACs can play a vital role in identifying and reducing fraud and abuse, as well as the hassle factors related to the Medicare program. Carriers should continue to solicit local CACs’ views on all proposed policy changes (including pre-payment review screens and medical review criteria). Carriers also should continue to publish their proposed policy changes and solicit comments from physicians, consumers, state medical associations and medical specialty societies before finalizing the policy.

ASIM supports HCFA’s plans to increase the number of CMD full-time equivalents by 15 percent for fiscal intermediaries with funding from MIP ASIM recognizes the value of a CMD as a peer liaison to the provider community. ASIM is concerned, however, that the increasing consolidation of Medicare contractors and the implementation of the MIP initiative will reduce direct access to CMDs on the local level. To prevent this, HCFA must maintain a commitment to keep CMDs for each contractor in each state.

CMDs are also instrumental in developing local medical review policies (LMRPs). HCFA allows local Medicare carriers significant discretion in determining local medical review policy. As a result, there is variation among carriers. Carriers should make any changes in local Medicare policy as openly as possible. Besides participating in LMRP development, practicing physicians should have access to discussions about the implementation of those policies. Furthermore, the current comment period is too short for medical societies to make informed judgments and comments on policy changes. This is

a problem particularly in rural states where the medical society staff may be limited. In addition, carriers should distribute the proposed changes widely to the medical community to allow policy review in a range of practice settings. All CAC members should receive justification for policy changes, and the public should receive copies on request. Just as HCFA must respond to comments made on its proposed rules, so too carriers should have to explain their adoption of a particular policy. In this way, the medical and patient community will know why the carrier is pursuing a particular course of action. Finally, educating physicians and their staffs about the policy change would further the goal of adopting correct policy and it would relieve carriers of the administrative burdens that result from physicians misunder- standing policy changes.

Recommendations on the Role of HCFA CMDs and CACs, and the Use of Local Medical Review Policy

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3.

4.

5.

6.

State medical societies and Medicare CACs should participate in the discussion and resolution of valid physician problems over the way Medicare carriers apply medical review criteria and related issues.

Carriers should provide a 60&y public come ment period for all proposed policy changes (the comment period now is 45 days).

At the conclusion of the comment period, the carrier should state in writing its reasons for accepting or rejecting the comments in framing the final policy.

Before the final policy takes effect, the carrier should release it to the medical community and, when necessary, conduct educational forums to ensure proper implementation. The carrier should provide adequate notice (a minimum of 90 days) before the policy goes into effect.

HCFA should provide access to a medical direct tor in each state.

HCFA should continue to support physician development of local medical review policies through CACs.

T he Medicare SNF benefit is one of the fastest growing components of Medicare spending. From 1989- 1996, Medicare SNF

expenditures increased more than 300 percent from $2.8 billion to $11.3 billion. Medicare’s SNF costs have grown as more beneficiaries use SNFs and because of a large increase in the provision of ancillary SNF services. A GAO analysis of SNF cost reports from 19924995 showed that reported SNF ancillary costs per day have increased 67 percent- from $75 per day to $125 per day-while routine costs have increased 20 percent-from $123 to $148. Unlike routine costs, which are subject to limits, ancillary services are subject only to medical necessity criteria, and Medicare rarely reviews their use, opening the door for fraudulent activity.2”

HCFA has established regulations and guidance for the Medicare SNF program to handle claims screening and processing, and to audit SNF providers. Medicare contractors, the primary referral parties to law enforcement agencies for suspected fraud, handle all Medicare billing problems. For the opportunistic provider or vendor, a nursing home represents a vul- nerable elderly population in a single location and the opportunity for multiple billings. Many nursing home patients are cognitively impaired. Because these patients probably wouldn’t realize what items or special services were billed on their behalf, some providers/vendors may take advantage of the situa- tion by submitting fraudulent claims.

In its 1996 report, GAO cited other characteristics that make SNFs appealing targets for fraudulent and abusive activity:

l Contrary to federal regulations, some nursing facilities make patient records available to outside providers who are not responsible for the direct care of the patient- this enables exploitative providers to obtain the patient’s billing information;

l Providers can bill Medicare directly, without the nursing facility or attending physician confirming that the items were necessary or provided as claimed;

l Medicare’s automated systems do not flag timely indications of improbably high charges or levels of services; and

l Even when Medicare detects abusive billings and seeks recovery of unwarranted payments, it often receives little repayment from the wrongdoers, who either go out of business or deplete their resources so they cannot repay the funds.2’

ASIM is not suggesting that all SNFs are abusing the Medicare program-most are not. However, there is a problem. A 1996 GAO report on 70 fraud and abuse cases showed that atypical charges or large reimbursements routinely escaped automated prepayment controls and typically went unquestioned. The Medicare carriers did not have any “triggers” in place that would halt payments when cumulative claims exceeded reasonable limits. Consequently, Medicare reimbursed fraudulent providers large sums of money over a short period of time, without suspicion. For example, a contractor paid claims for a supplier’s body jackets that averaged about $2,300 per quarter for five consecutive quarters and then jumped to $32,000, $95,000, $235,000, and $889,000 over the next four quarters, with no questions asked.22

In other instances, GAO found that providers later investigated for wrongdoing had billed and received payment for services or supplies that were unnecessary or that they could not have furnished. For example, a carrier reimbursed a clinical psychology group practice for individual psychotherapy visits lasting 45-50 minutes when the top three billing psychologists in the group were allegedly seeing 17- 42 nursing facility patients per day. On many days, the leading biller of this group would have had to work more than 24 uninterrupted hours to provide the services claimed. Medicare carriers often do not become suspicious of fraud until they receive complaints from family members, beneficiaries or com- peting providers.”

Care plan oversight is physician supervision (without face-to-face patient contact) of a patient who requires complex and multidisciplinary care in a home, hospice or nursing facility setting. According to the CPT definition, such care involves regular physician development or revision of care plans, review of patient status reports, review of laboratory and other studies, communication (including telephone calls) with other health care professionals

involved in the patient’s care, integration of new information in the medical treatment plan, or adjustment of the medical therapy, within a calendar month.

HCFA’s policy to allow separate payment for care plan oversight services furnished to beneficiaries receiving Medicare-covered home health care and hospice services represents an important precedent by providing some recognition for these services. Under previous policy, Medicare did not provide for separate payment. While the services were covered, HCFA considered them part of the physician’s work involved in other services.

However, HCFA still does not pay for care plan oversight for patients in nursing facilities because it had increased the pre- and post-service work pay ments in 1993 for the nursing home visit services. ASIM contends that HCFA should encourage physicians to become more actively involved in nursing home care by allowing physicians to bill and receive reimbursement for care plan oversight services provided to Medicare beneficiaries in SNFs. By

encouraging physicians to increase their active involvement in nursing home care, HCFA will improve its Medicare integrity safeguards, promoting the role of physicians as patient advocates and managers of patient care.

Recommendations on Reducing Fraud and Abuse in SNFs

1.

2.

HCFA should encourage physician involvement in nursing home care by allowing physicians to bill and receive reimbursement for the care plan oversight services they provide to Medicare beneficiaries in SNFs.

As GAO has recommended, there should be federal penalties for unauthorized disclosure of patient medical records, and Medicare’s claims processing systems should incorporate warning controls.

HCFA and BBA ‘97 have not addressed the two recommendations above.

A s a result of Medicare changes in the 198Os, more people are receiving home health services and for longer periods of time than

ever before. This trend has led to rapid growth in the number of certified HHAs (from 5,700 in 1989 to nearly 10,000 in 1997). In the same period, Medicare payments for home health care jumped from $2.7 billion to about $18 billion. The ORT audit of Medicare home health services in California, Illinois, New York and Texas, determining the validity of claims submitted and approved for payment, showed that 40 percent of the total services did not meet Medicare reimbursement requirements according to OIG. During this same period, intermediaries approved unallowed Medicare claims totaling about $2.6 billion for the four states.24

OIG suggested in its report that possible reasons for the inappropriate claims submitted by home health providers (and approved by their intermediaries) include problem providers, physicians, beneficiaries, and intermediaries. The ORT audit estimated that 25 percent of home health providers in these states were problem providers.25

In response to a congressional request, GAO investigated allegations against one specific HHA. Current and former employees of the agency alleged that during the early 1990s their managers:

Directed them to alter records to make it appear that patients continued to need home health visits;

Directed them to continue visiting patients who did not qualify for home health care under the Medicare rules defining homebound status;

Charged Medicare for the cost of acquiring other HHAs by paying owners a small sum up front and the balance in the form of salary under employ- ment agreements; and

Directed them to market the HHA and its services with the intent of charging Medicare for nonreimbursable costs.26

Fiscal intermediary resources for oversight have not kept pace with the rapid increase in the number of HHAs. In some cases, the carrier budgets for oversight have decreased even as the number of HHAs

has increased. Additionally, there is no standard pro- tocol for determining what percentage of HHAs should be subject to regular review and oversight. Onsite HHA reviews occur infrequently, and fewer than 5 percent are comprehensive (i.e., covering all costs claimed by an individual HHA). Currently, intermediaries target only about 3 percent of all claims -including home health claims-for review. This is a significant reduction from 1988, when intermediaries were asked to review 50 percent of home health claims.27

Fiscal intermediaries often uncover illegal or questionable practices during onsite medical reviews of problem providers. They discover many of these practices only during onsite reviews, because problem HHAs often know how to document claims to make them appear legitimate. Some of the most common and abusive practices include:

l Billing for services not rendered;

l Billing for noncovered services;

l Providing services that are not medically necessary;

l Frequently billing one or two chronic diagnoses from which the patients will never recover;

l “Ping ponging”- sharing beneficiaries with other agencies; and

l Using doctors who sign plans of care without ever contacting the patient.28

While onsite medical reviews can be invaluable oversight tools, problem providers know that limited fiscal intermediary resources mean there is little chance they will be selected for review. Also, since fiscal intermediaries notify providers well in advance of planned visits, problem providers have time to complete their “documentation.”

Physician and Patient Roles in the Supply of Home Health Services

Physicians develop the initial care plan for home health services, which involves moderate to complex decision-making, including integrating other providers’ recommendations. The physician’s role is

more extensive than signing a plan that a nurse or therapist has developed. The HHA develops a separate written plan (the HCFA 485 form), distinct from the physician’s care plan. The physician reviews this form and signs or modifies it. The subsequent physician work is substantial, due to the large volume of telephone calls, lab reports, contacts with other providers, and related chart documentation, order review and signing, that are typical for patients receiving covered HHA benefits. Physicians will prescribe diet, medications, activity, physical and occupational therapy, diagnostic testing, and DME.

Physicians also monitor patient progress in these settings and provide follow-up services. The physician is legally responsible for the care plan oversight and services that are ordered unless that oversight has been relinquished to qualified HHA personnel. Certifying care typically involves observing the extent of a patient’s functional disabilities, identifying the activities that the patient will need help with, and certifying how much the patient will require nursing and ancillary services. The cases involving more than 30 minutes per month of care plan oversight go far beyond signing orders and reviewing forms written by others. The physician cannot delegate such independent judgment to non- physician health professionals.”

Physicians who order home health services, therefore, are responsible for ensuring the medical necessity of claims submitted to Medicare. A physician who orders unnecessary home health services may be liable for false claims submitted by HHAs. Furthermore, if the HHA personnel believe that physician-ordered services are excessive or otherwise inappropriate, the agency cannot avoid liability for filing improper claims because a physician ordered the service.3’

Patients also play an important role in determining how the home health benefit is used. Because most Medicare patients prefer home health care to insti- tutional services, physicians face enormous pressures from patients and their families to certify them for home health services. Doctors often may sign orders with no idea of the expense involved, because they want to do what makes their patients most comfort- able.31 At the time of the OIG review, beneficiaries were not aware of the home health services costs. Had beneficiaries been aware of the associated costs, they might have questioned the intermediary about services claimed on their behalf. As of October 1996, HCFA has taken steps to instruct the regional

home health intermediaries to generate a beneficiary notification system for home health services.

ASIM believes that HCFA should encourage physicians to provide extensive care plan oversight services for Medicare beneficiaries receiving home health and hospice services. Currently, HCFA only covers limited care plan oversight services (30 minutes a month), which is a disincentive for physicians to spend more than a minimal amount of time coor- dinating home health and hospice care. HCFA could strengthen physician oversight of home health and hospice care services by recognizing and paying for care plan oversight services that require more than 60 minutes a month of physician time.

Recommendations on Reducing Fraud and Abuse in

1

2.

Home Health Services

HCFA should encourage physicians to provide extensive care plan oversight services for Medicare beneficiaries who receive home health and hospice services by recognizing and paying for care plan oversight services that require more than 60 minutes a month.

HCFA should implement the OIG recommendations to:

A. Develop a reimbursement methodology for home health services that incorporates:

I. A system of preeauthorizations; II. A copayment; and III. A case management system.

B. Emphasize the definition of “homebound” in the Medicare HHA manual and include additional guidelines on the standards for “considerable and taxing effort” and “infrequent or for periods of relatively short duration.”

C. Augment focused medical reviews with interviews of physicians and beneficiaries to confirm the appropriate provision of services.

D. Require that, to qualify for Medicare certification, an HHA must have a majority of its principals with previous health care experic ence directly related to the provision of home health services.

b E.

E

/,

Develop a data bank of owners, principals and other home health agency officials and related organizations, to cross-reference their activity and to identify fraudulent practitioners and businesses.

Before certification, assure that new HHAs are financially sound, that they have adew quate fiscal record keeping, and that their owners and principals are qualified and trustworthy.

U. Conduct extensive background checks to determine the suitability of an HHA; if appropriate, refuse to enroll any HHA whose owners or principals:

- Owe money to the federal government from Medicare overpayments, tax liens, or unpaid loans;

Have filed bankruptcy or have negative credit ratings;

Have previous criminal records; or

Have associated with-or are relatives of the owner of-a Medicare provider found guilty of fraud, abuse or misappropriation of Medicare dollars.

H. Preclude the discharge of Medicare debts through bankruptcy.

HCFA and BBA ‘97 have not addressed the above recommendations, except for recommendation 2B- BBA ‘97 required the HHS secretary to conduct a study of the “homebound” definition and report the study’s findings by Oct. 1, 1998.

A n OIG investigation revealed that nursing home hospice patients received nearly 46 percent fewer nursing and aide services

from hospice staff than hospice patients living at home, and that three out of four patients received only basic nursing and aide visits. Nursing home staff also provided many of these services when hospice staff were not present. Yet hospices get paid the same amount for nursing home patients as they receive for home patients. In addition, two different sets of medical reviewers disagreed with the hospice’s initial prognosis in nearly one out of six patients.”

Following a limited audit of hospices in Puerto Rico, which noted large numbers of ineligible beneficiaries, OIG investigated fraud and abuse within the Medicare hospice program. The audits focused on whether the beneficiaries met the Medicare definition of “terrainally ill” at the time of enrollment in the hospice program. The peer review organization (PRO) physicians concluded that more than 65 percent of the selected beneficiaries were not eligible for hospice because, at the time of initial diagnosis, they were not terminally ill as defined by Medicare regulations. On the basis of these findings, OIG recommended that its regional home health intermediaries recover $17.2 million for ineligible payments from five of the 12 audited hospices. The remaining seven still are pending further review. Medicare paid approximately $83 million on behalf of all the ineligible beneficiaries enrolled in the 12 hospices.”

The ORT investigation found many contributing causes for the problems in the hospice audits:

l The hospice industry had not enforced the six- month prognosis requirement, especially for non- cancer and SNF patients.

l Hospice regulations for nursing home residents are complex. The regulations prohibit Medicare payments for hospice care on behalf of beneficiaries receiving Medicare-funded services in SNFs. Paradoxically, Medicare payments for hospice care are permissible when the beneficiary is receiving Medicaid-funded services in a nursing facility. The joint funding through the Medicare and Medicaid programs for these nursing home residents provides an opportunity for abusive practices.

l Some hospices create a climate conducive to the enrollment of patients who are not terminally ill. For example, a nationwide chain of hospices received payments in excess of the usual Medicaid reimbursement to nursing facilities. It used marketing materials that downplayed or ignored the six-month prognosis requirement. It also had a large sales staff paid on commissions based on a patient’s length of stay.

l Internal controls are weak in the areas of physician certifications of terminal illness, claims processing, and medical review at the intermediary leve1.34

Members of the hospice community have responded to the ORT findings, stating their belief that hospice care is an essential health care service that provides compassionate and palliative care to terminally ill patients. They take exception to ORT’s portrayal of the industry as fraught with fraud and abuse and suggest that the ORT investigations have left a stigma on the industry that may affect timely referral of new hospice patients. For example, confronted with ORT’s finding that the medical records of more than half of their patients did not indicate a terminal illness, with several other cases questionable, the hospice medical director of the Rockford Visiting Nurses Association of Rockford, Ill., took another look at the records and stated that he still would certify the same patients for hospice care.

This example serves as a reminder that medicine is an art, not an exact science. There are no absolutes when it comes to making terminal illness predic- tions. These decisions are judgment calls, relying on the information available and the physician’s experience. Another hospice medical director, in an interview with PBS NewsHour, indicated that it is easy for federal auditors to review medical records in hindsight and decide that patients who took longer than six months to die should not have been certified for hospice care; but it’s a lot harder to predict exactly how long a patient will live.

Recommendations on Reducing Fraud and Abuse in Hospice Care

HCFA should implement the OIG recommendations to:

1. Prohibit the hospice practice of paying nursing facilities more for “room and board” than the hospices receive from the state Medicaid agent ties on behalf of dually eligible beneficiaries.

2. Inform hospices that marketing materials

should feature Medicare eligibility requirements prominently; in addition, HCFA should monitor the use of sales commissions as incentives for patient recruiting.

3. Strengthen claims processing controls at the regional home health intermediaries with more focus on frontcend reviews and nontraditional, suspect, or exceedingly vague diagnoses.

HCFA and BBA ‘97 have not addressed the four recommendations above.

D uring the ORT initiative, OIG found that one of every 14 DME suppliers participating in Medicare, and one of nine new pro-

gram applicants recently examined did not have a physical address, required for doing business with the $4.7 billion Medicare DME program. The report also found that 41 percent of the suppliers failed to meet at least one of the 11 standards required to participate in Medicare. OIG concluded that HCFA is approving “many inexperienced, unqualified and unethical people” for Medicare supplier numbers.36

DME Ordering and Fulfillment Processes

Relying on the physician to provide quality control in DME ordering may be appropriate, but must be accomplished in ways that do not burden the physician or inhibit patient access to timely benefits. When a physician determines that a patient under a home health or SNF care plan needs DME, the physician must decide what type is necessary and beneficial for the patient. The physician then writes a certificate of medical necessity (CMN), which the patient uses like a prescription. Once the patient receives the DME, the supplier bills Medicare, providing the CMN for documentation. In cases of frequently prescribed DME (such as nebulizers), the prescription with the diagnosis code is adequate. In other cases ordering less frequently prescribed DME, the carrier may require a letter explaining medical necessity for the DME in addition to the original prescription. The carrier then determines the coverage for the DME and reimburses the supplier. In certain cases, the carrier’s medical director or utilization review officer determines that the patient either does not need the prescribed device or could be better served with a less expensive device. In such instances, the physician usually is notified and given the opportunity to provide additional evidence supporting the originally prescribed DME.”

In cases where the DME vendor has a history of fraudulent activity, the Medicare carrier will flag subsequent invoices for review. Carriers often depend on information from patients and their families, physicians and competitors of DME providers to

begin fraud investigations. Carriers usually take action against the DME supplier-as opposed to the prescribing physician-since the supplier actually submits the bill for reimbursement.

Weaknesses in the DME Payment System

DME claims have long been abused because of fun- damental weaknesses in Medicare payment controls. Before DME claims processing transferred to the four regional carriers in 1993, each of the Medicare carriers paid DME claims. HCFA did not require its contractors to implement basic controls before payment to identify and review claims with unusually high per-patient expenditures or improbably large quanti- ties of supplies. Without such controls, a number of unscrupulous DME suppliers billed for equipment never delivered, higher cost equipment than delivered, or totally unnecessary equipment or supplies. Suppliers also frequently engaged in contractor shopping: They delivered equipment or supplies to beneficiaries in one state, but suppliers would bill a contractor in another state because that contractor paid more for the items delivered or had relatively weak payment controls for the supply items.

Fiscal intermediaries often pay medical supply claims without knowing specifically what they are paying for. The providers’ claims do not include detailed information to help fiscal intermediaries determine the legitimacy of the claims. HCFA allows providers to bill all medical supplies under 10 broad codes; billed items are not listed by type or amount.

These weaknesses explain why Medicare contractors processed, without questioning, claims that later proved to be fraudulent or abusive. During the early 199Os, OIG reported that Medicare paid $20 million for unneeded nutritional supplements and feeding kits; $5.2 million for oxygen concentrators, nebulizers, medications and tests either not needed or not delivered; and $.5 million for unneeded transcuta- neous electrical nerve simulators.38

GAO examined the medical records and an itemized list of supplies supporting 85 high-dollar medical supply claims submitted by 38 providers during a

one-month period to one Medicare carrier. All of these claims had been processed without review. The fiscal intermediary found:

l The carrier should have denied totally or partially 89 percent of the claims for which documentation was received and reviewed;

l The carrier should have denied almost 61 percent of the dollars billed for medical supplies, for various reasons, including: items not medically necessary, items not covered by Medicare or covered as part of routine or administrative costs, no documentation of the supplies used, no physician’s orders, and no itemized list of supplies;

l The carrier subsequently denied 45 percent of the claims for which there was no documentation; and

l One claim was determined to be potentially fraudulent because the beneficiary’s condition required none of the $2,404 in medical supplies billed. A further review of the same provider’s claims for this beneficiary for the previous five months found an additional $20,393 in potentially fraudulent medical supply charges.”

Federal Programs To Reduce Fraud and Abuse in DME

HCFA established the National Supplier Clearinghouse (NSC) to enroll DME suppliers in Medicare. NSC verifies supplier data on all applications and matches suppliers, owners and managing employees listed on new applications to a file of all equipment suppliers to ensure there has been no history of fraudulent or abusive practices. If it notes a previous history, it denies the application.

NSC also verifies that medical equipment suppliers meet Medicare standards. If NSC determines that the standards are not met, then it will not issue a Medicare billing number, and any supplier that does not meet these standards will have its Medicare billing number revoked. Additionally, there is a re- enrollment process every three years, which prohibits noncompliant suppliers from retaining their Medicare billing numbers, and provides NSC with updated information. NSC revoked approximately 1,300 supplier numbers during the latest re-enrollment.40

Since 1993, HCFA has contracted with a dedicated statistical analysis firm, Palmetto Government Benefits Administrator, Inc., to support the four

DME regional contractors (DMERCs). The contractor produces ongoing analyses of trends, utilization rates, billing patterns, referral patterns, and related information at the national and regional levels. For example, the contractor has identified fraudulent billing practices for nebulizers and related drugs, and many abusive billing practices for incontinence supplies, surgical dressings, parenteral and enteral nutri- tion, and urological supplies. The DMERCs have made changes in their payment policies that, according to HCFA, have saved the Medicare program more than $200 million. The changes related to nebulizers alone resulted in a savings of $40 million. They also have used this data to trigger provider reviews, support fraud investigations, and target enrollment verification activities.41

ASIM supports giving HHS authority to create a DME preauthorization list as provided under HIPAA to target potential fraud and abuse in high-cost DME use; but this process should not delay medically necessary services or increase the administrative burden on physicians.

DME preauthorization requirements that unduly burden physicians can discourage physicians from getting involved in DME prescription decisions. HHS also must be careful not to create an unnecessary burden for patients waiting to receive DME that requires preauthorization. A patient should not be unnecessarily detained in the hospital or an SNF while waiting for authorization of DME needed to support the patient at home. If preauthorization cannot proceed quickly and efficiently, delays will increase costs to the Medicare program rather than reduce costs since this prolongs hospital stays and inpatient stays at other facilities.

Recommendations on Reducing Fraud and Abuse in Ordering DME

1.

2.

3.

DME order forms and prescriptions should not require physicians to provide more information than they do now.

Because it provides the equipment and receives the reimbursement, the DME supplier should be responsible for submitting appropriate docuc mentation to the preauthorization entity.

The supplier should be responsible for obtain- ing copies of records from the hospital, or from the physician chart if necessary, and should pay a reasonable fee for the records.

4. The supplier should follow the appropriate Medicare guidelines when recommending DME; the supplier should indicate on the certificate of medical necessity or DME order form both the cost of the recommended item and the appropriate information indicating its medical necessity; the supplier should include with the order the appropriate Medicare guidelines for ordering the recommended DME item, for the physician to evaluate when prescribing the DME item; if originating the DME order, the supplier should attest to the patient’s need for the DME item.

5. HCFA and medical specialty societies should increase their efforts to educate physicians, suppliers and patients on their roles in reducing fraudulent and abusive DME ordering.

6. HCFA should implement the OIG recommendations to:

A. Conduct onsite visits at applicants’ physical locations;

B. Require program training for new suppliers;

C. Increase the review of inactive supplier numbers; and

D. Impose a six-month waiting period previously denied applicants.

on

HCFA released a proposed rule on Jan. 20, 1997, to increase oversight of DME suppliers. The rule does not specifically address ASIM’s six recommendations above.

A fter the introduction of new E/M service codes in 1992, HCFA announced its intent to develop documentation guidelines for

E/M services. HCFA agreed that AMA was better suited to develop the guidelines and in 1994, AMA- in consultation with medical specialty societies- developed documentation guidelines for E/M services to provide physicians and claims reviewers advice about preparing and reviewing documentation.

The guidelines also were expected to improve the quality of medical records and the continuity of patient care. ASIM did not endorse the guidelines, but believed that its participation in the development process enhanced the final product. HCFA incrementally incorporated the guidelines in its medical review auditing process the following year. In May 1997, HCFA released revised Medicare documentation guidelines for E/M services developed jointly by HCFA and AMA, again in conjunction with medical specialty societies. The revised and expanded documentation guidelines incorporate changes to the requirements for documenting history and to the guidelines for documenting general, mul- tisystem examinations. They also introduce comprehensive requirements for 11 single organ-system exams. The guidelines for single-system exams provide documentation instructions for specialists.

Hassles Related to the Content of the E/M Documentation Guidelines

No issue has aroused a greater outcry regarding increasing hassles from internists and their col- leagues in recent years than documentation guidelines for E/M services. ASIM has been inundated with correspondence from internists urging guideline revision and simplification, some even threatening to terminate their membership if the Medicare documentation burden is not eased.

ASIM is concerned that the 1997 documentation guidelines, as they are currently constituted, will cause patient care to suffer. As one member writes: “The guidelines are in many ways contrary to realistic, good medical practice.” To address this problem, ASIM and the American College of Physicians (ACP) created a working group of internists to

review the guidelines and the guideline implementation process in the Medicare program. The working group has concluded that the guidelines burden physicians unduly with documentation for the sole purpose of billing, not for producing quality medical care. The working group is concerned that these guidelines will force physicians to spend less time with their patients and more time with the patients’ charts, thereby detracting physicians’ attention from patient care and medical decision-making. Furthermore, the working group is concerned about the ever-growing administrative complexity and subsequent cost of providing care to Medicare patients. When one internist learned of the new guidelines, he began to question why “billing decision-making” was becoming harder than medical decision-making.

One internist carefully reviewed the new documentation requirements and calculated the number of decisions that a physician must make before billing Medicare for E/M services. There are 11 decision points or categories to consider before selecting an E/M code. Each decision point requires several choices. In this documentation system, there are 42 choices a physician must consider before selecting the proper level of E/M service and 6,144 possible combinations representing the number of ways an office visit for a new patient can evolve and be clas- sified. Clearly, reporting the proper E/M code is so complicated under the new guidelines that physicians are at risk of making inadvertent coding errors.

Hassles Related to the Implementation of the E/M Documentation Guidelines

Medicare carriers currently are using both the original 1994 and the revised 1997 guidelines in prepayment medical review and in post-payment medical review audits. Carriers deny payment for an E/M service claim if a prepayment review determines that the documentation fails to justify the service level billed. Carriers request a refund from physicians if a post-payment medical review audit reveals documentation inadequate to justify the service level billed. In recent years, Congress and the administration increasingly have emphasized reducing “waste,

fraud and abuse” in the Medicare program, which means it is unlikely that HCFA will limit carriers’ authority to recoup overpayments. In such instances, internists would have to reimburse Medicare for the overpayments, plus interest.

As mentioned earlier in this paper, HIPAA states that physicians and other providers can be sanctioned for program abuse (for actions such as upcoding and billing for medically unnecessary services) under the statute’s CMPs, only if they act “in deliberate ignorance of the truth or falsity of the information, or in reckless disregard of the truth.” Fraudulent activities carrying criminal penalties require that the person “knowingly and willfully executed, or attempted to execute, a scheme or artifice to defraud any health care benefit program, or to obtain by false pretenses any money or property under the custody of a health care benefit program.”

However, the House and Senate conference committee report on HIPAA specifies that it does not intend to penalize physicians for “a professional difference of opinion regarding diagnosis or treatment,” or for submitting a nonreimbursable claim to obtain insurance documentation for a patient (see quota- tion from committee report on page 15). Therefore, a physician whose documentation fails to support the service level submitted for an E/M service code is not guilty of fraud or abuse, unless he or she acted “in deliberate ignorance” or “reckless disregard” of the truth. Submitting a claim later found to be medically unnecessary doesn’t constitute fraud or abuse without evidence of a deliberate or reckless disregard of the truth or a knowing and willful intent to defraud the program.

In egregious situations, where a physician consistent- ly refuses to improve documentation and coding practices- after a carrier has advised that there is a problem-GIG will deterrnine if the physician has engaged in “reckless disregard” or “deliberate ignorance” of the truth, which by law could be grounds for CMPs.

ASIM is concerned that OIG may overstep its authority when auditing physician practices and threaten to impose CMPs without proving that physicians acted in reckless disregard or deliberate ignorance of the truth. The civil penalties under the law are so severe-$10,000 per service, with a maximum of three times the falsely claimed amount, plus a possible five-year exclusion from the Medicare and Medicaid programs-that most physicians would likely settle with OIG rather than risk going to

court. Therefore, OIG could pressure physicians into entering a costly settlement, even though it might have difficulty proving in court that the billing patterns constituted abuse or fraud.

The ACP-ASIM working group believes that proper documentation is of interest to both Medicare and physicians, and that it is appropriate for the medical community to participate in the development of the standards to which it will be held accountable. ASIM, however, is concerned that complying with these comprehensive and complex guidelines will be so time-consuming that it will detract from the time a physician has available to treat patients.

The working group has made several recommendations to simplify the content and structure of the documentation guidelines. Additionally, the working group believes that HCFA can best encourage physicians to document and code correctly-helping to ensure that Medicare pays for each E/M service appropriately-by implementing the soon-to-be revised guidelines in a manner that follows the recommendations below.

Recommendations on the Use of the E/M Documentation Guidelines

1.

2.

3.

4.

HCFA should pilot-test the revised guidelines nationally before the AMA CPT Editorial Panel adopts them for use.

HCFA should perform an economic analysis (e.g., one that considers the time devoted to fulfilling the documentation requirements rather than providing patient care), to study the guidelines’ impact.

HCFA and other auditors should recognize that any HCFA-AMA documentation guidelines are not the only coding standards, but a guide. Auditors also should recognize alterna- tive coding guides as they become available.

HCFA should use the new documentation guidelines for E/M services initially as an educational tool to assist physicians in improving the documentation of their E/M services. Carriers, OIG or other auditors should not use the documentation guidelines in a punitive fashion during an initial review of the physician’s claims. Instead, auditors should provide education and feedback to assist the provider in improving documentation.

5.

6.

7.

8.

9.

Claims denial or fraud and abuse investigations should begin only after a physician has failed to improve documentation or when there is reason to suspect fraud or abuse.

The new documentation guidelines for E/M services should be open to annual improve* ments by allowing medical societies to suggest changes to the CPT Editorial Panel. Medical record audits should not apply the new documentation guidelines retroactively to services rendered before the guidelines’ full implementation.

HCFA should increase its educational activities on the content and use of the new docue mentation guidelines by requiring that its carriers send-at a minimum-a copy of the guidelines to each physician who provides services to Medicare patients. HCFA and its car@ riers should not saddle medical societies with this educational responsibility.

HCFA should use the information obtained from its medical review of E/M claims documentation to provide educational feedback to the physician community on the appropriate use of the new documentation guidelines for at least six months before denying payment for claims.

HCFA should use the documentation guidelines only to review physicians whose utilization-i.e., patterns of care-indicates that they are outliers. For example, using statistical pro- files that recognize severity of patient case mix, a carrier first would identify that a physician has an unusual pattern of utilization of the E/M codes; the carrier could request documentation from such outlier physicians and compare it with the guidelines. If the physician’s documentation is not in compliance, HCFA should advise the physician and offer educational assistance on how to improve documen tation-but it would not deny claims based on this initial review.

10. OIG should inform the medical community how it will use the documentation guidelines

11

activities to educate physicians further on documenting E/M services properly.

12. HCFA and OIG should acknowledge that inadvertent coding errors and inadequate documentation do not constitute fraud or abuse.

13. HCFA and OIG should not include billing errors or inadequate documentation in estie mates of fraud and abuse, and should be careful not to sanction providers who commit honest mistakes and do not engage in fraudulent or abusive behavior.

14. HCFA and AMA should educate physicians more about the use of time as a factor in documenting their services.

15. If billing entities not under the direct employ ment of the physician (e.g., billing companies, medical services organizations, physicianchos- pita1 organizations, etc.), recode physician-submitted encounter forms or do the actual coding, fraud and abuse investigations should not target the physician or impose sanctions for acts or errors not under the physician’s con trol.

16. HCFA and OIG should work with AMA and physician specialty societies to draft, adopt and regularly revise any audit tools and algo- rithms-as well as teaching programs to eduw cate the personnel who conduct audits for carriers or federal agencies. In addition, HCFA and OIG should publish these tools, algo- rithms and related materials and make them available for an adequate period of notice and comment before applying them.

17. An appropriate, independent, government agency--such as GAO-should monitor HCFA and OIG in the proper implementation and use of the documentation guidelines.

The ACP-ASIM working group’s recommendations should ensure that E/M documentation guidelines strike an appropriate balance between the practicing physician’s documentation to provide good medical care and the carriers’ need to verify documentation to justify payment for services rendered in an audit.

in the reviews.

OIG should work with the medical community-including national medical specialty socic eties-to develop a model compliance plan using the HCFA data from medical review

Summary of ACP-ASIM Joint Action Plan To Reduce HCFA’s Excessive Documentation Requirements for E/M Services

To assure that the E/M documentation guidelines are implemented only in a manner recommended by the working group, ACP and ASIM have developed an action plan to ease the documentation requirements. The plan includes the following:

1.

2.

Inform members of Congress, the Practicing Physicians Advisory Council, the news media, and other opinion leaders about the adverse impact on patient care if HCFA persists in its plans to impose the current documentation requirements.

Inform AMA of the changes needed to make the guidelines acceptable to internists, and work with AMA to incorporate these changes.

ACP and ASIM have provided AMA with specific recommendations that require far less detailed documentation than the current version. ACP and ASIM presented those recommendations at an April 27 AMA meeting of national specialty societies and state medical societies. The ACP-ASIM working group will review AMA’s proposed changes to determine if additional changes are needed.

3. Press HCFA and OIG to agree to the changes in the guidelines as recommended by ACP, ASIM and AMA, and to delay implementation until HCFA and OIG have conducted a pilot test of the guidelines and made further changes based on the findings.

4. Press HCFA and OIG to agree that any use of the E/M documentation guidelines in audits and reviews will not result in excessive hassles imposed on physicians or in sanctions due to inadvertent coding errors or honest disagree0 ments on the required level of documentation.

5. Urge Congress to enact legislation reducing the risk that physicians will be sanctioned unfairly under the False Claims Act or other fraud and abuse statutes.

ACP and ASIM specifically advocate legislation that protects physicians and others from being sanctioned for following erroneous information that HCFA or its carriers distribute; that prohibits retroactive application of new policies; and that limits the use of statistical claims combinations to determine sanctions. As noted earlier, ASIM has endorsed the Health Care Claims Guidance Act, HR 3523.

6.

7.

8.

Urge Congress to exercise its oversight authority to pressure HCFA to agree to the changes that ACP and ASIM recommend.

ACP and ASIM:

l Will ask the chairs and ranking minority members of key Medicare authorizing and appropriations committees to send letters of concern directly to HCFA.

l Support a “sense of the Congress” resolution introduced by Reps. Frank Pallone (D-N.J. ), Barbara Cubin (R-Wyo.), Dave Weldon (R-ma.), William Pascrell Jr. (D-N.J.), Max Sandlin (D-Texas), Jerry Kleczka (R- Wise. ) and Steven Rothman (D-N.J.), with many other cosponsors, to put Congress on record as strongly opposed to implementation of the current guidelines.

Seek an independent review by GAO or another study group of the cost-benefit ratio of the documentation requirements.

Form coalitions with internal medicine sub- specialty societies, AMA, other medical organi@ zations, and Medicare patient advocacy groups to advocate for these recommendations.

A SIM believes that the medical profession must have zero tolerance for fraudulent or abusive behavior, and shares the govem-

ment’s goal of eliminating unscrupulous activities in our health care system. ASIM believes, however, that the government must act more judiciously in its application of the laws and regulations. ASIM agrees with HCFA and OIG that education, voluntary compliance, and self-disclosure are the most effective ways to eliminate fraud and abuse.

Successful detection and prevention strategies hinge on a true comprehension of what fraud and abuse actually means and determining how prevalent it is in the health care system. ASIM concurs with AMA policy that it is essential to determine the prevalence of Medicare fraud and abuse to develop the optimal strategy for protecting the Medicare program from fraudulent and abusive behavior. As discussed earlier, the OIG financial audits of HCFA do not measure the prevalence of fraud and abuse accurately.

Recommendation for the Establishment of a National Fraud and Abuse Commission

Congress should establish a national commission to investigate the nature, magnitude and cost of health care fraud and abuse; this commission should enable the government-appropriate federal agencies and congressional committees-to work with the medical community to study the extent to which health care fraud pervades the Medicare program.

The need to uncover the extent to which fraud and abuse plagues our health care system is even more critical now, as the scope of what is considered fraud and abuse apparently has expanded to include inadvertent coding errors or documentation that does not substantiate bills for services. An inaccurate definition of what constitutes fraud and abuse leads to an exaggerated perception of their prevalence, unnecessarily undermining the public’s view of providers and its confidence in the health care system.

ACP-American College of Physicians

AMA-American Medical Association

ASIM-American Society of Internal Medicine

BBA ‘97-Balanced Budget Act of 1997

CAC-carrier advisory committee

CFO-hief financial officer

CMD-carrier medical director

CMN-ertificate of medical necessity

CMP-civil monetary penalty

CPT-urrent procedural terminology

DME-durable medical equipment

DMERC-durable medical equipment regional contractor

DoJ-U.S. Department of Justice

E/M-evaluation and management

FFS-fee-for-service

GAO-U.S. General Accounting Office

HHAhome health agency

HHS-U.S. Department of Health and Human Services

HIPAA-Health Insurance Portability and Accountability Act of 1996

LMRP-local medical review policy

MIP-Medicare Integrity Program

NSC-National Supplier Clearinghouse

OIG-Office of the Inspector General

ORT-Operation Restore Trust

PATH-physicians at teaching hospitals

PPS-prospective payment system

PRO-peer review organization

PUR-post-payment utilization review

SNF-skilled nursing facility

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

Health Care Financing Administration (HCFA), Department of Health and Human Services (HHS). “Health Insurance for the Aged: Home Health Agency Manual.” Washington, D.C.

Ibid.

ibid.

Congressional Research Service, Library of Congress. “CRS Report for Congress: Medicare Provisions in the Balanced Budget Act of 1997 (PL 105-33).” Washington, D.C., Aug. 18, 1997.

Ibid.

Ibid.

The White House. “Clinton Administration’s Comprehensive Strategy To Fight Health Care Fraud, Waste and Abuse.” Washington, DC., Aug. 21, 1997.

U.S. General Accounting Office (GAO). “Testimony Before the Subcommittee on Investigations, Committee on Governmental Affairs, U.S. Senate; Medicare: Control Over Fraud and Abuse Remains Elusive; Statement of Leslie G. Aronovitz, Associate Director of Health Financing and System Issues; Health, Education and Human Services Division.” Washington, D.C., June 26, 1997.

HCFA. “Combating Medicare Waste, Fraud and Abuse Through Information Technologies; Statement of Bruce Fried, Director of the Center for Health Plans and Providers Before the House Commerce Subcommittee on Oversight and Investigations.” Washington, D.C., Sept. 20, 1997.

Office of the Inspector General (OIG), HHS. “Fact Sheet: Operation Restore Trust Accomplishments.” OIG Press Office, Washington, D.C., May 20, 1997.

American Medical Association. “Statement to the Practicing Physicians Advisory Council on Fraud and Abuse Issues and the CFO Audit.” Washington, DC., Sept. 22, 1997.

OIG. “Report on the Financial Statement Audit of the Health Care Financing Administration for Fiscal Year 1997.” Washington, D.C., April 1, 1998 (A-17- 97-00097).

HCFA. “Statement of Bruce Vladeck on CFO Audit Before the House Ways and Means Subcommittee on Health.” Washington, D.C., July 17, 1997.

14.

15.

Ibid.

OIG. “An Open Letter to Health Care Providers.” Washington, D.C., Nov. 11, 1997.

16.

17.

Ibid.

Law offices of Miller, Alfano & Raspanti. “The False Claims Act Resource Center.” wwv.fa/sec/aimsact.com, Philadelphia.

18.

19.

20,

Ibid.

Ibid.

GAO. “Medicare Post-Acute Care: Home Health and Skilled Nursing Facility Cost Growth and Proposals for Prospective Payment.” Washington, DC., March 4, 1997 (Testimony, GAO/T-HEHS-97- 90).

21. GAO. “Fraud and Abuse: Providers Target Medicare Patients in Nursing Facilities.” Washington, D.C., Jan. 24, 1996 (Letter Report, GAO/HEHS-96-18).

22. GAO. “Nursing Homes-Too Early To Assess New Efforts To Control Fraud and Abuse; Statement of Leslie G. Aronovitz, Associate Director of Health Financing and System Issues; Health, Education and Human Services Division.” Washington, DC., April 16, 1997.

23.

24.

Ibid.

OIG. “Results of the Operation Restore Trust Audit of Medicare Home Health Services in CA, IL, NY, and TX.” Washington, D.C., July 1997 (A-04-96- 02121).

25.

26.

Ibid.

GAO. “Medicare: Allegations Against ABC Home Health Care: Report to the Ranking Minority Member, Committee on Commerce, House of Representatives.” Washington, D.C., July 19, 1995 (Letter Report, GAO/OSI-95-17).

27. Moran T. “Cleaning House.” Texas Medicine, December 1997.

28. Ibid.

29. American Society of Internal Medicine. “Statement Regarding the Medicare Home Health Initiative: The Role of Physicians and Other Health Care Professionals in Planning and Oversight of Medicare Home Health Services.” Washington, D.C., Nov. 15, 1994.

30. OIG. “Publication of OIG Special Fraud Alerts: Home Health Fraud, and Fraud and Abuse in the Provision of Medical Supplies to Nursing Facilities.” Federa/ Register, 60: 154:40847-40851 (Aug. 10, 1995); Federal Register Online via Government Printing Office Access: wais.access.gpo.gov (DOCID:frlOau95-87).

31. Moran, op. cit.

32. OIG. “Hospice Patients in Nursing Homes: Statement by June Gibbs Brown, Inspector General.” Washington, D.C., Sept. 1997.

33. OIG. “Enhanced Controls Needed To Assure Validity of Medicare Hospice Enrollments,” Washington, D.C., Nov. 4, 1997.

34. Ibid.

35. Public Broadcasting System. “Correct Care?” PBS NewsHourTranscript, June 19, 1997.

36. OIG. “Medical Equipment Suppliers: Assuring Legitimacy.” Washington, D.C., Dec. 17, 1997 (OEI- 04-96-0240).

37. Personal communication, Aetna/USHealthCare.

38. GAO. “Medicare: Excessive Payments for Medical Supplies Continue Despite Improvements.” Washington, D.C., Aug. 8, 1995 (GAO/HEHS-95- 171).

39. Ibid.

40. HCFA. “Statement of Jody Berek, Senior Advisor to the Administrator for Program Integrity, Before the House Government Reform and Oversight Subcommittee on Human Resources and Intergovernmental Relations.” Washington, D.C., Sept. 5, 1996.

41. “Combating Medicare Waste...” op. cit.

Documents

Reducing Waste, Fraud and Abuse - ACP...Skilled Nursing Facilities (SNFs) 1. 2 HCFA should encourage physician involvement in nursing home care by allowing physicians to bill and receive