Fraud & Abuse Silliness at CMS – Look for The Crooks, Don’t Punish the 99%

May 12th, 2014 by Rod Baird

Be certain that CMS and their investigative arm, the OIG, will come up with new regulations to prevent fraud – at the expense of the universe of hardworking, honest providers!

This week’s post LTC Management looks at the recent release of provider data, the media’s scrutiny of data they do not have the capacity to understand and the ongoing saga of CMS “solutions”.

Last week’s New York Times has a front page article with the headline – One Therapist, $4.1 Million in 2012 Medicare Billing. You can bet I zeroed in on this article. It was our most prominent national newspaper using the same reporting standards as Fox News/CNN/etc. – go for the zinger headline, damned the facts. This story was built on ‘data mining’ from the Public Use Files of Physician and other Provider billing that CMS released in April.

Reading the article made it abundantly apparent that the $4.1MM Therapist, Wael Bakry, was actually a PT Practice employing “about 2 dozen” therapists and assistants treating 1,950 patients. Mr. Barky may have pushed the bounds of care by having his staff providing ~$2,000 of care per patient, (about 24 hours per year per patient assuming a typical Medicare Payment of $85 per hour of treatment). That works out to ~2,000 hours of billable time per provider per year. There may be fraud, but billing $4.1MM under the practice owner’s name is not a crime.

What is the lesson for all of us as providers? Wael Barky is guilty of environmental ignorance – don’t copy him! He inadvertently created a billing profile that made him stand out among his peers. If he billed under the individual therapist’s NPI, he would never have been noticed by the NY Times reporter. Every Medicare Provider needs to think about their public profile – you are never innocent, at best you are ‘not guilty’.

Complying with billing rules is just step #1 – then you need to think how your paper trail will look to an investigator from the RAC Auditor, OIG, or the FBI.

I’d like to contrast the NY Times reporting on these Public Use Files with a similar data release of Medicare Part D billing data in 2012. Propublica, a nonprofit investigative reporting group, obtained the complete file of 2011 Medicare Part D payments.   Those payments cover all drugs dispensed to individuals insured under the voluntary Medicare Part D insurance plan. Propublica sorted, and published this history by Prescriber. The #1 and #2 prescribers in the country were LTC Physicians. Unlike the Times, Propublica’s lead reporter Charles Ornstein, actually took the time to understand how these Physicians could be ‘credited’ with up to 150,000 Part D prescriptions per year (hint, the pharmacies used just one physician name when dozens were part of the group). They still reported the data, but footnoted the issues in the LTC setting.

Who is minding the Store?

If the NY Times can ferret out this alleged abuse without even understanding how billing works, why can’t CMS? Every one of these Therapy claims was paid by the same Medicare Administrative Carrier (MAC). It is the MAC’s job to screen claims for ‘reasonableness’.

All we can be certain of is that this public reporting will lead to even more onerous regulations.

Who will Suffer?

Be certain that CMS and their investigative arm, the OIG, will come up with new regulations to prevent fraud – at the expense of the universe of hardworking, honest providers.

Consider the epidemic of Home Health Certification Fraud. CMS assumes that Jacques Roy, MD is typical of his peers – personally referring 11,000 patients to Home Care agencies in Dallas, TX. At least that’s what you’d suspect based on the massive efforts CMS has undertaken to assure Physicians find it increasingly difficult to make home care referrals. The PPACA mandated that Physicians document Face to Face contact with a patient referred to Home Health (language highlighted below). That was secondary to earlier Home Health referral scandals.

in the case of a certification after January 1, 2010, prior to making such certification the physician must document that the physician, or a nurse practitioner or clinical nurse specialist (as those terms are defined in section1861(aa)(5)) who is working in collaboration with the physician in accordance with State law, or a certified nurse-midwife (as defined in section 1861(gg)) as authorized by State law, or a physician assistant (as defined in section 1861(aa)(5)) under the supervision of the physician, has had a face-to-face encounter (including through use of telehealth and other than with respect to encounters that are incident to services involved) with the individual during the 6-month period preceding such certification, or other reasonable timeframe as determined by the Secretary

Physicians think this added certification step is a pain because it isn’t part of the typical workflow for patient visits. But we understand how a reasonable 3rd party observer can conclude that safeguards are needed to protect the public’s money.

So, it’s now 4 years after passage of the law and the OIG is alarmed that Physicians documentation of the Face to Face requirement is ‘inadequate’. Their April 2014 report “LIMITED COMPLIANCE WITH

MEDICARE’S HOME HEALTH FACE-TO-FACE DOCUMENTATION REQUIREMENTS” shows how the OIG and CMS policy staff play off each other to create needless complexity.

The CMS response to the OIG report– an unbelievable proposal for an EHR Template for the F2F documentation. This is 6 pages long draft template that contemplates the Physician documenting every element of the Home Health Certification form. If this becomes the new standard of documentation, patients simply won’t be referred to Home Health – no Physician would have the time for this silliness.

This is another CMS/OIG ‘solution’ for a problem that doesn’t exist. All this accomplishes is to build another barrier for honest physicians to order a valuable service that can reduce hospitalization rates.

Physicians and Home Health Agencies bent on defrauding the government will have an additional form to complete on the path to getting paid.

Isn’t it time for CMS to use the kind of fraud detection tools the Credit Card industry has embraced for years? Look for the crooks, don’t punish the 99% of the provider community trying to do more with less and less.

Providers shouldn’t suffer the burden of CMS’s inability to manage its own claims payment history.

Rod Baird

About Rod Baird

Rod Baird is the Founder and President of Geriatric Practice Management (GPM). Since 1977, he’s led provider and management organizations that deliver care to Medicare/Medicaid beneficiaries. Past programs he’s overseen include home health, personal care, hospice, rehabilitation hospitals, adult and psych daycare, alcohol/drug rehabilitation, industrial medicine and primary care practices. The Centers for Medicare and Medicaid Services (CMS) selected Baird as one of only 73 individuals to serve with its InnovationProgram. His educational background includes a Master’s Degree in Physical Chemistry from the American University, Washington, D.C.

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