SUNY Buffalo School of Medicine & Biomedical Sciences Graduate Medical Education Resident Compliance Training Brigid M. Maloney, J.D Compliance Officer

SUNY BuffaloSUNY BuffaloSchool of Medicine School of Medicine

& Biomedical Sciences& Biomedical Sciences

Graduate Medical Graduate Medical EducationEducation

Resident Compliance Resident Compliance TrainingTraining

Brigid M. Maloney, J.DBrigid M. Maloney, J.DCompliance OfficerCompliance Officer

OverviewOverview

Fraud AwarenessFraud Awareness Medical Record BasicsMedical Record Basics E/M Documentation & CodingE/M Documentation & Coding

Fraud AwarenessFraud Awareness

Who Investigates Fraud?Who Investigates Fraud? Federal Laws and RegulationsFederal Laws and Regulations Fines & PenaltiesFines & Penalties Billing FraudBilling Fraud Unlawful KickbacksUnlawful Kickbacks Stark/Prohibited Self-ReferralsStark/Prohibited Self-Referrals

Who Investigates Fraud?Who Investigates Fraud?

Centers for Medicare & Medicaid Services Centers for Medicare & Medicaid Services Office of the Inspector GeneralOffice of the Inspector General Federal Bureau of InvestigationFederal Bureau of Investigation Department of JusticeDepartment of Justice U.S. Attorneys OfficesU.S. Attorneys Offices State Attorney General OfficesState Attorney General Offices State Medicaid Fraud Control UnitsState Medicaid Fraud Control Units US Postal ServiceUS Postal Service Managed Care OrganizationsManaged Care Organizations Intermediaries and Contractors of CMSIntermediaries and Contractors of CMS Private Insurance CompaniesPrivate Insurance Companies Qui Tam relators/whistleblowersQui Tam relators/whistleblowers

Federal Laws & Federal Laws & RegulationsRegulations

Civil False Claims ActCivil False Claims Act Criminal False Claims ActCriminal False Claims Act False Statements ActFalse Statements Act Mail/Wire Fraud ActMail/Wire Fraud Act Racketeer Influenced & Corrupt Racketeer Influenced & Corrupt

Organizations Act (RICO)Organizations Act (RICO) Anti-kickback StatuteAnti-kickback Statute Stark LawsStark Laws HIPAAHIPAA

Fines & PenaltiesFines & Penalties

Jail timeJail time $$$$$$ Revocation of provider i.d. numberRevocation of provider i.d. number

can’t diagnose, treat, prescribe can’t diagnose, treat, prescribe medications to patients whose care is medications to patients whose care is paid for by federal program(s)paid for by federal program(s)

Barred from employment with provider Barred from employment with provider who participates in federal program(s)who participates in federal program(s)

Billing FraudBilling Fraud

UpcodingUpcoding Billing for services not rendered or provided Billing for services not rendered or provided

as claimedas claimed Submitting claims for equipment, supplies or Submitting claims for equipment, supplies or

services that are not medically necessaryservices that are not medically necessary Billing for non-covered services as if coveredBilling for non-covered services as if covered Clustering/Assumption billingClustering/Assumption billing Falsification of documentsFalsification of documents

Anti-kickback LawAnti-kickback Law

Prohibition against making payments in return for Prohibition against making payments in return for patient referrals or to induce the purchasing or patient referrals or to induce the purchasing or leasing of equipment or services paid for by federal leasing of equipment or services paid for by federal programs. Includes kickbacks, bribes, etc. programs. Includes kickbacks, bribes, etc.

Purpose of the law: Purpose of the law: -- address government concerns over additional address government concerns over additional costcost

-- loss of patient choice loss of patient choice -- factors other than quality driving decision factors other than quality driving decision making making -- competitioncompetition-- exercise of professional judgment.exercise of professional judgment.

Anti-kickback LawAnti-kickback Law

Exceptions/Safe HarborsExceptions/Safe Harbors

-- price discounts that are properly price discounts that are properly disclosed disclosed and reflected in costs claimed for and reflected in costs claimed for reimbursementreimbursement

-- payments made to bona fide employeespayments made to bona fide employees

-- certain group purchasing vendor certain group purchasing vendor agreementsagreements

-- copayment waivers for indigent patientscopayment waivers for indigent patients

Stark Law: Stark Law: Prohibition Against Self-Prohibition Against Self-

ReferralsReferrals

Physicians are prohibited from referring Physicians are prohibited from referring

patients to “designated health services” to patients to “designated health services” to

entities in which they (or an immediate entities in which they (or an immediate

family member) have a financial family member) have a financial

relationship.relationship.


ReferralsReferralsDesignated Health Services:Designated Health Services:

- laboratory serviceslaboratory services - - prosthetics/orthoticsprosthetics/orthotics

- physical therapyphysical therapy - - home health svcshome health svcs- occupational therapy -occupational therapy - outpt. prescriptionsoutpt. prescriptions- radiologyradiology - - inpatient/outpatientinpatient/outpatient- radiation Therapyradiation Therapy hospital serviceshospital services- DME & suppliesDME & supplies

- nutrients, equipment & suppliesnutrients, equipment & supplies


ReferralsReferralsExceptions/Safe Harbors:Exceptions/Safe Harbors:

- Space/Equipment RentalsSpace/Equipment Rentals- Bona fide employment relationshipsBona fide employment relationships- Personal service/independent contractorsPersonal service/independent contractors- Recruitment incentivesRecruitment incentives- Fair market value payments for items and Fair market value payments for items and

servicesservices- Nonmonetary compensation up to $300Nonmonetary compensation up to $300- Medical staff incidental benefitsMedical staff incidental benefits


ReferralsReferralsThreshold Questions:Threshold Questions:

1.1. Does this arrangement involve a referral of a Does this arrangement involve a referral of a Medicare or Medicaid patient by a physician or Medicare or Medicaid patient by a physician or an immediate family member of a physician?an immediate family member of a physician?

2.2. Is the referral for a “designated health Is the referral for a “designated health service”?service”?

3.3. Is there a financial relationship between the Is there a financial relationship between the referring physician or family member and the referring physician or family member and the entity to which the referral is being made?entity to which the referral is being made?

Case #1Case #1

A physician group that refers many A physician group that refers many Medicare patients to various community labs Medicare patients to various community labs

for for lab work have decided to open a lab of their lab work have decided to open a lab of their

own. own. The plan was simple: operate an off-site lab, The plan was simple: operate an off-site lab, refer all their patients to that lab, and enjoy refer all their patients to that lab, and enjoy the profits from all of the business they refer to the profits from all of the business they refer to their lab.their lab.

Unlawful referral arrangement?Unlawful referral arrangement?

Case #2Case #2

After being advised by their attorneys After being advised by their attorneys that that

such a venture was prohibited under the such a venture was prohibited under the

Stark laws, the same physicians decided Stark laws, the same physicians decided

instead to open a lab in their spouses’ instead to open a lab in their spouses’

names, so they would not be implicated in names, so they would not be implicated in

the self-referrals.the self-referrals.

Unlawful referral arrangement?Unlawful referral arrangement?

Case #3Case #3Dr. Jackson is employed part time as the medical Dr. Jackson is employed part time as the medical

director at the UMC hospital. His job duties were described director at the UMC hospital. His job duties were described in a 3-year employment agreement that he signed when he in a 3-year employment agreement that he signed when he was hired. He is paid a set salary of $50,000 which does not was hired. He is paid a set salary of $50,000 which does not change, regardless of the number of private patients he change, regardless of the number of private patients he refers to UMC each year. Dr. Jackson also treats patients at refers to UMC each year. Dr. Jackson also treats patients at a private office with three partners. Dr. Jackson routinely a private office with three partners. Dr. Jackson routinely refers a very large number of his patients to UMC’s refers a very large number of his patients to UMC’s outpatient physical therapy department for treatment.outpatient physical therapy department for treatment.

Unlawful referral or kickback?Unlawful referral or kickback?

Case #4Case #4A physician received a research grant from aA physician received a research grant from a

pharmaceutical company. The grant provided forpharmaceutical company. The grant provided forsubstantial cash payments to the physician insubstantial cash payments to the physician inexchange for administering the drug company’sexchange for administering the drug company’sproduct to patients and keeping brief notes aboutproduct to patients and keeping brief notes aboutthe treatment outcome. Upon completion of athe treatment outcome. Upon completion of alimited number of these studies, the physician limited number of these studies, the physician received payment from the pharmaceutical received payment from the pharmaceutical

company.company.

Unlawful kickback? Unlawful kickback?

Medical Record BasicsMedical Record BasicsThe medical record facilitates:The medical record facilitates:

- ability of physician and other health care professionals to - ability of physician and other health care professionals to evaluate and plan the patient’s immediate treatment, and to evaluate and plan the patient’s immediate treatment, and to monitor his/her health care over time;monitor his/her health care over time;

- Communication and continuity of care among physicians and - Communication and continuity of care among physicians and other health care professionals involved in the patient’s care; other health care professionals involved in the patient’s care;

- Accurate and timely claims review and payment;- Accurate and timely claims review and payment;

- Appropriate utilization review and quality of care evaluations;- Appropriate utilization review and quality of care evaluations;

- Collection of data that may be useful for research and - Collection of data that may be useful for research and education.education.

Medical Record BasicsMedical Record BasicsPrincipals of Medical Record Principals of Medical Record

Documentation:Documentation:

1.1. Record should be complete & legibleRecord should be complete & legible2.2. Documentation for each patient encounter Documentation for each patient encounter

should include—should include— a. chief complaint, history, exam a. chief complaint, history, exam findings, prior diagnostic test findings, prior diagnostic test

results,results,b. assessment, clinical impression or b. assessment, clinical impression or

diagnosis,diagnosis,c. plan for care, andc. plan for care, and

d. date & legible identity of the observer.d. date & legible identity of the observer.

Medical Record BasicsMedical Record BasicsPrincipals of Medical Record Principals of Medical Record

Documentation, cont’d:Documentation, cont’d:

3.3. If not documented, the rationale for ordering If not documented, the rationale for ordering diagnostic and other ancillary services should diagnostic and other ancillary services should be easily inferred.be easily inferred.

4.4. Past & present diagnosis should be accessible Past & present diagnosis should be accessible to the treating and/or consulting physician.to the treating and/or consulting physician.

5.5. Appropriate health risk factors should be Appropriate health risk factors should be identified.identified.

6.6. The patient’s progress, response to, and The patient’s progress, response to, and changes in treatment, and revision of diagnosis changes in treatment, and revision of diagnosis should be documentedshould be documented

Medical Record BasicsMedical Record BasicsWhat Third Party Payors are Looking What Third Party Payors are Looking

For:For:

- - site of servicesite of service

- medical necessity and appropriateness - medical necessity and appropriateness of the diagnostic and/or therapeutic of the diagnostic and/or therapeutic services providedservices provided

- that services provided have been - that services provided have been accurately reportedaccurately reported

Medical Record BasicsMedical Record Basics Evaluation & Management (E/M) Evaluation & Management (E/M)

Services:Services:

HCFA (now CMS) released documentationHCFA (now CMS) released documentation

guidelines for E/M services in 1995 and guidelines for E/M services in 1995 and 1997 1997

to ensure accuracy in E/M code selection by to ensure accuracy in E/M code selection by

physicians.physicians.


Services:Services:

What are E/M services?What are E/M services?

- non-procedural services such as listening, non-procedural services such as listening, counseling, and educatingcounseling, and educating

- patient visits in offices, hospitals, and nursing patient visits in offices, hospitals, and nursing homeshomes

- consultationsconsultations

- certain emergency room and critical care servicescertain emergency room and critical care services


Services:Services:CPT codes are assigned to E/M services CPT codes are assigned to E/M services

based on the level of skill, effort, time, based on the level of skill, effort, time,

responsibility, and medical knowledge responsibility, and medical knowledge

that is required in each encounter.that is required in each encounter.

This level is determined by the This level is determined by the physician’s physician’s

notes and other information contained in notes and other information contained in the medical record.the medical record.


Services:Services:

Document properly and thoroughly Document properly and thoroughly

so you can get paid for the work you so you can get paid for the work you performed and avoid allegations of performed and avoid allegations of

fraudulent billing.fraudulent billing.

IF IT ISN’T DOCUMENTED, IT IF IT ISN’T DOCUMENTED, IT DIDN’T HAPPENDIDN’T HAPPEN


Services:Services:Documentation that ensures reimbursement Documentation that ensures reimbursement

adequate for the level of service you adequate for the level of service you provided provided

includes:includes:

1.1. Patient HistoryPatient History

2.2. ExaminationExamination

3.3. Medical Decision MakingMedical Decision Making

4.4. Counseling/Coordination of Care (>50% time)Counseling/Coordination of Care (>50% time)


Services:Services:HISTORYHISTORY

1. Chief Complaint (CC): Concise statement describing the 1. Chief Complaint (CC): Concise statement describing the symptom, problem, condition, dx, or other reason for the symptom, problem, condition, dx, or other reason for the encounter.encounter.

2. History of Present Illness (HPI): Chronological description 2. History of Present Illness (HPI): Chronological description of the development of the patient’s present illness from the of the development of the patient’s present illness from the first sign/symptom or from the previous encounter to the first sign/symptom or from the previous encounter to the present.present.

3. Review of Systems (ROS): An inventory of body systems 3. Review of Systems (ROS): An inventory of body systems obtained through a series of questions seeking to identify obtained through a series of questions seeking to identify signs/symptomssigns/symptoms

4. Past, Family, and/or Social History (PFSH): past illnesses, 4. Past, Family, and/or Social History (PFSH): past illnesses, operations, etc; hereditary factors; age appropriate review of operations, etc; hereditary factors; age appropriate review of past and current social activitites.past and current social activitites.


Services:Services:EXAMINATIONEXAMINATION

The levels of E/M services are based on The levels of E/M services are based on

four types of examination:four types of examination:1.1. Problem focused - a limited exam of the affected body Problem focused - a limited exam of the affected body

area or organ systemarea or organ system

2.2. Expanded Problem Focused – a limited exam of the Expanded Problem Focused – a limited exam of the affected body area or organ system and other affected body area or organ system and other symptomatic or related organ systemssymptomatic or related organ systems

3.3. Detailed – an extended exam of the affected body areas Detailed – an extended exam of the affected body areas and other symptomatic or related organ systemsand other symptomatic or related organ systems

4.4. Comprehensive – a general multisystem examination or Comprehensive – a general multisystem examination or complete examination of a complete organ system.complete examination of a complete organ system.


Services:Services:

MEDICAL DECISION MAKINGMEDICAL DECISION MAKING

Based on the complexity of establishing a diagnosis and/or Based on the complexity of establishing a diagnosis and/or selecting a management option, as measured by:selecting a management option, as measured by:

- the number of possible diagnoses and/or the number of - the number of possible diagnoses and/or the number of management option that must be considered;management option that must be considered;- the amount and/or complexity of medical records, - the amount and/or complexity of medical records, diagnostic tests, and other information that must be diagnostic tests, and other information that must be obtained, reviewed and analyzed; andobtained, reviewed and analyzed; and- the risk of significant complications, morbidity and/or - the risk of significant complications, morbidity and/or mortality associated with the patient’s presenting problem, mortality associated with the patient’s presenting problem, diagnostic procedures, and the possible management diagnostic procedures, and the possible management options.options.


Services:Services:MEDICAL DECISION MAKINGMEDICAL DECISION MAKING

To support the complexity of medical decision making, always To support the complexity of medical decision making, always be sure be sure

to document in the medical record:to document in the medical record:

- Lab, X-Ray, or procedures ordered- Lab, X-Ray, or procedures ordered

- Review of lab, x-ray, or procedure reports- Review of lab, x-ray, or procedure reports

- Review of old records or gathering additional information - Review of old records or gathering additional information from from

other sourcesother sources

- Co-morbidities/underlying diseases- Co-morbidities/underlying diseases


Services:Services:COUNSELING/COUNSELING/

COORDINATION OF CARECOORDINATION OF CARE

If it dominates more than 50% of the If it dominates more than 50% of the

physician/patient encounter, time is physician/patient encounter, time is

considered the controlling factor to qualify considered the controlling factor to qualify

for a particular level of E/M service.for a particular level of E/M service.

Questions?Questions?

Brigid M. Maloney, J.D.Brigid M. Maloney, J.D.

Compliance OfficerCompliance Officer

U.B. Associates, Inc.U.B. Associates, Inc.

Ph: (716) 829-3176Ph: (716) 829-3176

E-mail: E-mail: [email protected]@buffalo.edu

mailto:[email protected]

Documents

SUNY Buffalo School of Medicine & Biomedical Sciences Graduate Medical Education Resident Compliance Training Brigid M. Maloney, J.D Compliance Officer