On October 1, 2009, the Office of Inspector General ("OIG") issued its Fiscal Year 2010 Work Plan. The Work Plan sets forth projects planned with respect to the programs and operations of the Department of Health and Human Services, including the Centers for Medicare and Medicaid Services ("CMS"). This Law Note summarizes those projects we believe are most relevant to health care providers, as well as the general priorities those projects reflect.
The Work Plan emphasizes a continued focus on normal regulatory scrutiny, including fraud and false claims investigations. In the 2010 Work Plan, some of the most significant projects and priorities include:
- The evaluation of the appropriateness of the provider-based designation for inpatient and outpatient facilities;
- The assessment of hospital-reported quality measure data;
- The review of present-on-admission diagnoses specified during hospital admissions;
- The assessment of the use of the Standardized Resident Instrument in developing appropriate plans of care at skilled nursing facilities ("SNFs");
- The evaluation of the accuracy of SNF resource utilization groups coding;
- The review of the appropriateness of the Ambulatory Surgical Center Payment System;
- The evaluation of independent diagnostic testing facilities and whether such facilities meet the Medicare enrollment standards;
- The review of Medicaid payments to hospitals for inpatient and outpatient services; and
- The assessment of ownership structures at investor-owned nursing homes and the receipt of Medicaid reimbursement.
Investigative and Legal Activities Related to CMS Programs and Operations
With the assistance of the Office of Investigations (the "OI"), the Office of Inspector General (the "OIG") conducts investigations of fraud and misconduct. Although investigative decisions will continue to be made on a case-by-case basis, the Work Plan reflects a continuing focus on investigating health care fraud and on encouraging provider self-disclosure.
- Health Care Fraud
- False Claims. The OIG will investigate individuals, facilities, and entities that bill Medicare and/or Medicaid for services not rendered, claims that manipulate payment codes in an effort to inflate reimbursement amounts, and other false claims submitted to obtain program funds.
- Medicare Part D Drug Benefit. The OIG will conduct investigations and assist CMS in identifying program vulnerabilities specifically related to the Medicare Part D drug benefit. Currently, the OIG is investigating matters involving enrollment and marketing schemes, the practice of "prescription shorting" (dispensing fewer doses than prescribed but charging the full amount), and health care fraud.
- DME Fraud. The OIG will identify, investigate, and prosecute individuals and companies that have committed DME fraud.
- Nursing Facilities. The OIG will continue to examine quality-of-care issues in nursing homes and will investigate instances in which Medicare and Medicaid may have been improperly billed for medically unnecessary services and for services either not rendered or not rendered as prescribed.
- Exclusion From Program Participation. The Office of Counsel to the Inspector General (the "OCIG"), which is responsible for coordinating the OIG's role in the resolution of civil and administrative health care cases, along with the OI, expect to initiate program exclusions against entities and individuals that submitted false or fraudulent claims; failed to provide services that met professionally recognized standards of care; or otherwise engaged in conduct authorizing exclusion.
- Provider Self-Disclosure. On April 15, 2008 the OIG issued refinements and clarifications to its policies related to the self-disclosure protocol, and will continue to make efforts to educate health care providers on the advantages of self-disclosure.
- Resolution of False Claims Act Cases and Negotiation of Corporate Integrity Agreements. The OIG will provide assistance to the Department of Justice in pursuing federal false claims cases against providers and, when appropriate and necessary, will require defendants to implement compliance measures in the form of corporate integrity agreements.
- Providers' Compliance With Corporate Integrity Agreements. The OIG will assess the compliance of providers with the terms of corporate integrity agreements and, when warranted, will impose sanctions in the form of stipulated penalties or exclusions.
- Advisory Opinions and Fraud Alerts. The OIG will respond to requests for formal advisory opinions on the application of the anti-kickback statute and other fraud and abuse statutes to particular circumstances.
- Civil Monetary Penalties. The OIG will pursue civil monetary penalties based on the submission of false or fraudulent claims; violations of the anti-kickback Statute; violations of EMTALA; or conduct otherwise authorizing the imposition of such penalties.
Centers for Medicare and Medicaid Services
Health care providers receiving Medicare and Medicaid funds should be aware of the following projects, categorized by targeted provider type. These projects reflect an emphasis on limiting Medicare and Medicaid overpayments, compliance with conditions of participation and coverage requirements, medical necessity, access to services, and quality of care concerns.
- Provider-Based Status for Inpatient and Outpatient Facilities. The OIG will determine the appropriateness of the provider-based designation for inpatient and outpatient facilities to ensure that hospitals are not improperly receiving higher reimbursement. Efforts will be focused on reviewing cost reports of hospitals claiming such status and examining whether these hospitals and their facilities satisfy the specific requirements for provider-based status.
- Medicare Disproportionate Share Payments. The OIG will review Medicare DSP made to hospitals to ensure that hospitals receiving these payments are serving a significantly disproportionate number of low-income patients.
- Provider Bad Debts. The OIG plans on reviewing Medicare bad debts claimed to determine whether bad debt payments made to hospitals were for uncollectible debts related to unpaid deductible and coinsurance amounts and whether such recoveries were properly used to reduce the cost of beneficiary services for the period in which recoveries were made.
- Medicare Secondary Payor. The OIG will assess whether the current procedures for preventing inappropriate Medicare payments for beneficiaries with other insurance coverage are effective and will evaluate procedures for identifying and resolving credit balance situations.
- Reliability of Hospital-Reported Quality Measure Data. The OIG will determine whether hospitals have implemented sufficient controls to ensure the accuracy of quality of care data that is submitted to CMS for Medicare reimbursement.
- Hospital Admissions with Conditions Coded Present-on-Admission. Because hospitals receive lower reimbursement payment amounts if specified diagnoses are acquired in the hospital, the OIG will review Medicare claims in order to ascertain which diagnoses were most frequently coded as being present on patients' admission to the hospital.
- Adverse Events. The Tax Relief and Health Care Act of 2006 requires that the OIG study serious reportable events and their impact on Medicare beneficiaries and Medicare costs. In addition to examining "serious reportable events" that the National Quality Forum deemed "should never occur in the health care setting," the OIG will:
- Review the national incidence of adverse health care events in inpatient hospital settings and assess to what extent such events are preventable;
- Examine the various methods for identifying adverse health care events, including medical record reviews by nurses and physicians, administrative data analysis using patient safety indicators and present-on-admission indicators, hospital incident reports, and interviews with Medicare beneficiaries, and assess the utility of such methods; and
- Review CMS's administrative processes for identifying hospital-acquired conditions and examine the percentage of claims denied higher Medicare reimbursement for related care.
- Oversight of Hospitals' Compliance with EMTALA. The OIG will evaluate CMS's methods for tracking EMTALA complaints and cases and will examine the variations among regions in the number of EMTALA complaints and cases referred to States.
- Coding and Documentation Changes Under the Medicare Severity-DRG System. The OIG will examine coding trends and patterns under the new Medicare Severity Diagnosis Related Group ("MS-DRG") system and determine whether specific codes are vulnerable to potential upcoding.
- Home Health Agencies.
- Home Health Outlier Payments. The OIG will determine whether outlier payments to home health agencies are in compliance with Medicare regulations.
- Home Health Agency Profitability. The OIG will analyze home health agency profitability trends to determine whether the payment methodology should be adjusted.
- Nursing Homes.
- Part B Services in Nursing Homes: Mental Health Needs and Psychotherapy. The OIG will review Medicare Part B payments for psychotherapy services provided during non-covered Medicare Part A SNF stays to determine the medical necessity of such services, appropriateness of coding, and adequacy of nursing home documentation.
- Medicare Requirements for Quality of Care in SNFs. To evaluate which facilities have addressed certain Federal requirements related to quality of care, the OIG will assess to what extent SNFs have: (1) developed plans of care based on assessment of beneficiaries; (2) provided services to beneficiaries in accordance with these plans of care; and (3) appropriately planned beneficiaries' discharges. The OIG previously indicated that SNFs frequently fail to use the Standardized Resident Instrument to ensure proper plans of care and will therefore assess to what extent there are improvements in this area.
- Accuracy of SNF Resource Utilization Groups Coding. To improve the accuracy of payments to SNFs, the OIG will review SNF claims for Medicare reimbursement to determine the accuracy of RUG coding in the industry.
- Part B Services in Nursing Homes: Overview. The OIG will review the utilization of Part B services provided to nursing home residents whose stays are not paid under Medicare's Part A SNF benefit to monitor these services for abuse.
- Other Medicare Part A and Part B Provider Payments.
- Physician Billing for Medicare Hospice Beneficiaries. The OIG will examine Medicare Part A and Part B claims for physician services provided to Medicare hospice beneficiaries to identify whether physicians double-billed hospice services.
- Medicare Incentive Payments for E-Prescribing. The OIG will review Medicare incentive payments made to health care professionals for their electronic prescribing activities and evaluate to what extent such payments were made in error.
- Ambulatory Surgical Center Payment System. The OIG will evaluate changes to the revised ASC payment system and will review the appropriateness of the methodology for setting such rates under the revised ASC Payment System.
- Evaluation and Management Services During Global Surgery Periods. The OIG will review industry practices related to evaluation and management services provided by physicians and reimbursed as part of the global surgery fee to determine whether industry practices have changed since the global surgery fee concept was developed.
- Use of Modifier –GY. The OIG will determine whether providers are using the –GY modifier appropriately.
- Independent Diagnostic Testing Facilities. The OIG will examine service and billing patterns in areas with high concentrations of independent diagnostic testing facilities ("IDTF") and evaluate whether IDTFs meet the performance requirements to obtain Medicare billings privileges. The OIG also will ascertain whether IDTFs meet Medicare enrollment standards.
- Physician Reassignment of Benefits. The OIG will ensure that physician benefits are reassigned under permissible arrangements.
- Payments for Services Ordered or Referred by Excluded Providers. The OIG will review the nature and extent to which Medicare payments were made to excluded or terminated providers and evaluate CMS's oversight mechanisms to identify and prevent such improper payments.
- Durable Medical Equipment and Supplies.
- Physician Self-Referral for Durable Medical Equipment Services. The OIG will review Medicare payments for DME services in order to identify instances in which physician-self referrals to DME suppliers are permissible.
- Medicare Payments for Various Categories of Durable Medical Equipment. The OIG will determine the appropriateness of Medicare payments for certain items of durable medical equipment, including power mobility devices, hospitals beds and accessories, oxygen concentrators, and enteral/parenteral nutrition.
- Part B Payments for Prescription Drugs. The OIG will review the appropriateness of Medicare drug payments paid under the hospital outpatient prospective payment system to ensure appropriate Medicare billing.
- Medicare Part A and Part B Contractor Operations.
- Accuracy and Completeness of the National Provider Identifier Registry. The OIG will review the accuracy and completeness of the National Provider Identified ("NPI") registry and will determine whether providers are including NPIs on claims as required.
- Recovery Audit Contractors' Referrals of Potential Fraud and Abuse. The OIG will review CMS's oversight of Recovery Audit Contractors ("RAC") during the 3-year demonstration program and will examine for both the demonstration and national RACs the number of cases referred to CMS; CMS's processing of those referrals; CMS's guidance and training provided to demonstration RACs to identify and report potential fraud; and CMS's guidance and training to national RACs to identify and report potential fraud.
- Medicaid - Hospitals.
- Hospital Outlier Payments. The OIG will determine whether day and cost outlier payments under state Medicaid programs were in accordance with Federal requirements and approved by Medicaid state plans.
- Potentially Excessive Payments for Inpatient and Outpatient Services. The OIG's prior findings that excessive payments to hospitals were attributable to billing errors on submitted claims has sparked the OIG's interest in whether similar vulnerabilities exist in State agencies' controls. Therefore, the OIG will review State controls to detect potentially excessive Medicaid payments.
- Medicaid - Nursing Homes. The OIG will examine transparency within nursing facility ownership and will evaluate ownership structures at investor-owned nursing homes in order to determine which entities are benefiting from Medicaid reimbursement.