Transcript Slide 1

A Compliance Officer’s Perspective on the
Fraud & Abuse Provisions Under PPACA
Metro NY HFMA
October 29, 2010
D I S P U T E S & I N V E S T I G AT I O N S • E C O N O M I C S • F I N A N C I A L A D V I S O RY • M A N A G E M E N T C O N S U LT I N G
Program Integrity – On Steroids!
» Includes aggressive provisions on
identifying and punishing perceived fraud
and abuse
» Significant changes to current criminal and
civil enforcement provisions
» It’s not just about billing – it’s about
relationships and transparency as well
» Data takes center stage
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Expands Criminal Health Care Fraud
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PPACA amends the Health Care Fraud Statute
Now, the Government does not need to prove that
the defendant had actual knowledge of the health
care fraud statue or a specific intent to violate its
provisions
Includes violations of AKS, the Food, Drug &
Cosmetic Act, and certain provisions of ERISA
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Let’s Start With the Basics – Compliance Plans are Now
Mandatory
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“Certain providers” (to be defined) will have to
establish compliance programs in order to enroll
in Medicare, Medicaid and CHIP.
The compliance program must include “core
elements” (to be defined)
The timeline for implementation of these
programs will be determined by the Secretary
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I have a compliance program – what does this mean for
me?
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Will the HHS “core elements” agree with the 7/8
elements currently in the compliance program?
Will there be a definition of “effectiveness”? Will
my program pass muster?
Do I review my program now, or do I wait for HHS
to promulgate rules?
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Medicare and Medicaid Program Integrity Provisions
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Continues where the May 2009 Fraud Enforcement &
Recovery Act (“FERA”) Amendments to the False Claims
Act left off
FERA expanded the definition of false claim to include
retention of overpayments even if there was no “false
claim”
If an organization or individual “knowingly conceals or
knowingly and improperly avoids or decreases an
obligation to pay or transmit money or property to the
Government”, there can be liability under the FCA. (31
U.S.C. 3729(a)(1)(G) )
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Section 6402(d) – Medicare and Medicaid Program
Integrity Provisions (or why you won’t sleep at night)
Reporting and Returning of Overpayments
» Must report and return by the later of
60 days after the date the overpayment was
identified; or
The date any corresponding cost report is due,
if applicable
 Must notify the Secretary, State, intermediary,
contractor or carrier in writing of the reason of the
overpayment
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Overpayments? Define “overpayments”…
» The obvious – overpayments on claims
» The not so obvious –
 Payments for services in violation of the Stark law, with certain
exceptions
 Payments for services where the order for the service was induced
by a kickback
 Credit balances
 Services provided by excluded persons, or by excluded ordering
providers
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What about…
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Inaccurate “present on admission” indicators
Split billing for readmissions within 30 days
Errors with transfer vs. discharge coding
Billing for “never events”
Cost report reconciliation
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Where does the Compliance Department Start?
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Sit down with Patient Accounts now and review
your processes regarding credit balances,
reconciling accounts, etc.
Make sure you are copied on all pre- and postpayment review requests. Become part of the
ADR response process. Understand your trends.
Now.
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Know Your Data. Mine Your Data.
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CMS is developing a “Integrated Data Repository”
(“IDR”) to bring all Medicare claims data in one
centralized repository
Will be used to identify trends, outliers, clinically
inconsistent and high volume billings
OIG and DOJ will have access
Stay ahead of the curve and analyze your own
data
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Don’t Forget Stark
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HHS, in cooperation with the OIG, is required to establish
a Stark-only self disclosure protocol within six months
HHS will have discretion to reduce penalties as a result of
the self-disclosure
No new physician owned hospitals will qualify for the
whole hospital exception after 12/31/2010
Physician-owed hospitals will have annual reporting
requirements to HHS and disclosure requirements to
patients (ownership/investment interest of the referring
and/or treating physician, if applicable)
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Stark & In-Office Ancillary Services Exception Disclosures
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Referring physicians must provide additional patient
notification when making referrals for MRI, CT or PET
services
Must notify patients that services can be obtained from
sources other than those associated with the referring
physician, and
Must provide a list of suppliers in the area that perform the
same services
Provision is retroactive to services furnished beginning
1/1/2010 (!)
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Section 6102 - Nursing Home Compliance, Enforcement
and Training
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Nursing homes must implement compliance and
ethics programs within 36 months after the
enactment of PPACA, pursuant to HHS
regulations
HHS will evaluate the “effectiveness” of these
programs within 3 years of the regulations
Must also implement QA and PI programs
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Section 6102 - Nursing Home Compliance, Enforcement
and Training
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For self-reported deficiencies corrected within 10
days, CMS will discount civil monetary penalties
Will be greater transparency regarding staffing
data reported for Nursing Home Compare (direct
care staffing information; hours of care provided
per staff category per resident per day, etc.)
Will be modification of cost reports providing
wage and benefit detail by level of staff
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Compliance Implications
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Many nursing facilities combine quality and
compliance into one department – will it be time
to separate out the two functions?
Criminal background checking (including
fingerprinting) is a pervasive theme in the
legislation – how robust are your procedures?
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The Compliance Officer’s Nightmare – Civil Investigative
Demands (CIDs)
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FERA permitted the Attorney General to delegate authority
for issuance of CIDs which allow requests for documents,
interrogatories, the taking of sworn testimony, etc. (like a
subpoena, but not a subpoena)
Also allowed the Government to share information
gleaned from the CIDs with qui tam relators
The Dept of Justice on March 24, 2010 published a final
rule to allow all US Attorneys General the authority to
issue CIDs
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New Civil Monetary Penalties
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Failing to provide timely access to OIG for audits,
evaluations or inspections ($15K/day)
Knowingly making, using or causing to be made
or used a false record or statement material to a
false claim ($50K)
Knowingly making a false statement on an
enrollment application, bid or contract ($50K)
Ordering or prescribing services during the period
where the person ordering has been excluded
($50K)
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Additional HHS-OIG Authority
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Expanded subpoena authority
Administrative penalties on beneficiaries
Exclusion authority
Authority to obtain “any supporting documentation
necessary” for program integrity
Penalties for Medicare Advantage & Part D Plans
(retro to 1/1/2010)
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Program Integrity
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RAC Expansion (12/31/2010)
 Medicaid
 Medicare Parts C & D
Screening Requirements
 Licensure, possible criminal background
Enhanced Oversight (new providers & suppliers)
Increased Provider Screening & Disclosure Requirements
 Any current or previous affiliation with a provider or supplier with
uncollected debt, payment suspension, exclusion or had billing
privileges denied or revoked
Temporary Moratorium on Enrollment of New Providers or Suppliers
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More Program Integrity
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Home Health
Physicians must document a face-to-face
encounter between the MD and the patient
within “a reasonable period of time”
(undefined) for Part A
Physicians must document a face-to-face
encounter during the 6-month period prior to
certifying patient eligibility for Part B
Must be a physician encounter
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Still More Program Integrity
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DME
Provider must document a face-to-face encounter during
the 6-month period prior to certifying patient eligibility
Provider may be a physician, physician assistant, nurse
practitioner or clinical nurse specialist
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Physician Payment Sunshine Provisions
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Beginning March 31, 2013, manufacturers of drugs,
devices, biologicals or medical devices must report
payments or other “transfers of value” made to “covered
recipients (including physicians & teaching hospitals)
during calendar year 2012
Manufacturers and GPOs must report any ownership or
investment interests that a physician or member of the
physician’s immediate family holds in that entity, exclusive
of publicly-traded securities or mutual funds
There will be civil monetary penalties for failure to report
timely
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Other Areas of Consideration
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Prescription Drug Sample Transparency
PBM Transparency
340B Program Compliance
FCA & Health Exchanges
FCA Public Disclosure Bar & Qui Tam Relators
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In Summary – The Compliance Officer in the Age of
PPACA must be…
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An auditor
A policy maker
A listener
A trainer
A data miner
A document manager
A reporter
An overseer of quality
A _______ (fill in the blank)
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Thank You and Good Luck!
Laurie Radler
Navigant Consulting, Inc.
90 Park Avenue, 10th Floor
New York, NY 10016
Tel: 646-227-4475
Fax: 646-227-4229
[email protected]
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