Compliance plan helps, but other risk areas lurk

These key areas also need a practice’s attentio

The Office of the Inspector General’s (OIG) guidelines for small and solo practices cover considerable ground. But OIG officials also are pointing to other risk areas that physician practices must focus on to avoid problems with investigators. Those include:

o Advance beneficiary notices (ABNs). The OIG reminds practices that before providing services a patient’s local carrier does not consider reasonable and necessary, the practice first must tell the patient that Medicare may not pay for the treatment. The ABN acknowledges that coverage is either uncertain or yet to be determined and stipulates that the patient promises to pay the bill if Medicare does not. Patients who are not given an ABN before receiving medical treatment do not have to pay for those services.

To ensure patients make an informed decision about paying for potentially uncovered services, HCFA says an ABN must:

1. be in writing;

2. identify the specific service that may be denied (procedure name and CPT/HCPC code are recommended);

3. state the specific reason the physician believes the service may be denied;

4. be signed by the patient acknowledging that the required information was provided and that the patient assumes responsibility to pay for the service.

According to the Medicare Carrier’s Manual, an ABN is unacceptable if the:

• patient is asked to sign a blank ABN form;

• ABN is used routinely without regard to a particular need. In other words, "the ABN must state the specific reason the physician anticipates that the specific service will not be covered," stresses the OIG.

Diagnostic tests and related services are areas in which practices often run afoul of ABN rules. Here are the steps the OIG suggests physicians take to help ensure they stay in compliance with proper ABN protocols:

1. Determine which tests are not covered under national coverage rules.

2. Determine which tests are not covered under local coverage rules such as local medical review policies. The OIG recommends providers contact the carrier to see if such a list exists.

3. Determine which tests are only covered for certain diagnoses.

o Certification of medical equipment and home health services. The OIG reminds doctors they can be hit with criminal, civil, or administrative penalties for signing a certificate of medical necessity (CMN) for durable medical equipment or home health services when they know the information is false, or if they exhibit a "reckless disregard as to the truth of the information."

To avoid possible problems, before signing any CMN, you should:

• be the patient’s treating physician;

• ensure any information regarding your address and unique physician identification number is correct;

• make sure the entire CMN, including the sections filled out by the supplier, is completed before you sign;

• ensure the information in section B relating to whether the item or service is reasonable and necessary is true, accurate, and complete to your best knowledge.

Actions such as signing a blank CMN, signing CMNs without seeing the patient to verify the item or service is reasonable and necessary, or signing a CMN for a service you know is not reasonable and necessary are considered violations by the OIG.

o Teaching physicians. The OIG says that in teaching programs, a teaching physician must be present during the key portion of any service or procedure for which payment is sought. To ensure that happens, the guidance recommends the following points be followed when services are provided in a teaching physician setting:

• Only bill for services actually provided.

• Every physician who provides or supervises the provision of services to a patient must be held responsible for the correct documentation of the services rendered.

• Every physician must be responsible for assuring that in cases where the physician provides evaluation and management (E/M) services, the patient’s medical record includes appropriate documentation of the applicable key components of the E/M services provided or supervised by the physician (e.g., patient history, physician examination, and medical decision making), as well as documentation to adequately reflect the procedure or portion of the services provided by the physician.

• Every physician must document his or her presence during the key portion of any service or procedure for which payment is sought.

o Third-party billing services. The OIG’s guidance reminds physicians that they are responsible for all claims in their names or containing their signatures, even if they were not aware of any billing improprieties. In other words, you’re still on the hook even if your billing service screwed up.

When it comes to third-party billing arrangements, it’s OK to contract with a billing service on a percentage basis. However, the billing service cannot directly receive Medicare payments made to the physician. Medicare payments can be made only to either the beneficiary or a party (such as a physician) who furnished the services and accepted assignment of the beneficiary’s claim, says the OIG.

According to the Medicare Carriers Manual, a payment is considered to be made directly to the billing service if the service can convert the payment to its own use and control without the payment first passing through the control of the physician. For example, a billing service cannot bill claims under its own name or tax identification number. The billing service must bill claims under the physician’s name and tax number. Nor can a billing service have Medicare payments sent directly to its office or bank account. Payments must be sent to the physician’s office or bank account, says the OIG.

o Billing by nonparticipating physicians. Nonparticipating physicians can’t knowingly and willfully bill or collect on a repeated basis an actual charge for a service that is in excess of the Medicare limiting charge. For example, a nonparticipating physician may not bill a Medicare beneficiary $50 for an office visit when the Medicare limiting charge for the visit is $25.

Also, nonparticipating physicians can’t charge more than the statutory limit for such procedures as cataract surgery, mammography screening, and coronary artery bypass surgery. Nonparticipating physicians who collect more than the legal limit for a service must refund the excess to the patient within 30 days of the violation. For example, if a physician collects $50 from a Medicare beneficiary for an office visit, but the limiting charge for the visit was $25, the physician must refund $25 to the beneficiary. Physicians failing to comply can be fined up to $10,000 per violation or excluded from federal health care programs for five years.

o Professional courtesy. A "professional courtesy" is traditionally defined as the practice of waiving all or a part of the fee for services provided to the physician’s office staff, other physicians, and/or their families. It also can mean waiving the coinsurance obligations or other out-of-pocket expenses for physicians or their families (i.e., "insurance only" billing). Similar payment arrangements can be made by hospitals or other institutions for services provided to their medical staffs or employees.

That’s fine except in cases where recipients of the care "are selected in a manner that directly or indirectly takes into account their ability to affect past or future referrals," said the OIG. In those cases, federal anti-kickback statutes can come into play.

If the professional courtesy involves waiving a copayment — or "insurance only" billing — that also can raise fraud and kickback questions.

The OIG’s viewpoint

Here’s the OIG’s general take on professional courtesy issues: The "regular and consistent" practice of extending professional courtesy by waiving the entire fee to a group of persons (including employees, physicians, and/or their family members) is OK as long as there are no questions about a group member’s ability to directly or indirectly refer federal health care business to the physician.

Tip: Even though sharp discounting of fees is legal, OIG sources say fraud investigators consider deep discounts to be suspect. That means the OIG is putting providers on notice that such arrangements are automatically open to scrutiny.

Medicare says charge differentials are OK, if for a "good cause." You have to be careful when a discount is substantially below the establish federal payment level. If a generous discount involves someone who is not indigent, the OIG will want to take a closer look to see if it is being used to generate illegal referrals.

o Unlawful advertising. The guidelines remind practices it’s illegal to run advertisements using the names, abbreviations, symbols, or emblems of the Social Security Administration, Health Care Financing Administration, Department of Health and Human Services, Medicare, or Medicaid. You can’t, for instance, place an ad that says something like, "Dr. X is a cardiologist approved by both the Medicare and Medicaid programs." Fines can reach $5,000 for print ads and $25,000 for radio or TV.