p r actice management: m e d i care au d i t s When Medicare Auditors Decide It’s Time for a Check-up Bruce A. Levy, Esq. E very practice treating Medicare patients is costly disputes involving suspension of payments subject to an audit by the Center for to the physician by Medicare,appeals, or even liti- Medicare and Medicaid Services ( cms ), gation. Although the rules governing appeals are formerly known as the Health Care Financing changing in ways that may bene fi t physicians, the Administration ( hcfa ). In the year the feder- process will remain an expensive and unwanted intrusion. al government won or negotiated more than $ . billion in judgments, settlements, and administra- tive impositions in health care fraud cases and The Audit Pro c e s s proceedings; federal prosecutors fi led criminal In order to understand Medicare audits of physi- indictments in health care fraud cases, up % cian practices, a few words about the Medicare from ; a total of defendants were convict- reimbursement system are in order. The cms con- ed of health care fraud–related crimes; there were tracts with insurance companies to review claims, , civil matters pending and civil cases to pay claims, and to investigate and respond to fi led; and , i n d ividuals and entities we re allegations of fraud and abuse. These insurance excluded from participating in the Medicare and companies are commonly referred to as intermedi- Medicaid programs. aries for Part A claims and carriers for Part B Medicare audits are one of several things that claims. In the case of physician practices, audits can trigger a larger civil or criminal investigation are usually performed by Part B carriers. One of by federal law enforcement. Usually, auditors con- the more common methods used by Medicare to clude that Medicare has made signi fi cant “over- determine that an audit is appropriate is through payments”and demand that the audited physician the identi fi cation of billing patterns.Because claim return the money. For the most part, auditors are information is stored electronically, Part B carriers’ professional and do their best to conduct fair analysts, auditors, and investigators can quickly audits. Nonetheless, the landscape is littered with identify physicians whose billing patterns for a physicians who fully cooperate with audits only to particular procedure or procedures exceed the discover that the auditors have incorrectly deter- norm set by their peers. Carriers often elect to mined that a large sum of money is owed to audit these “aberrant” billing patterns and “out- Medicare. Such results can quickly escalate into lier”physicians. B RUCE A. L EVY is counsel to Gibbons, Del Deo, Dolan, Gri ffi nger & Vecchione. Mr. Levy concentrates his practice on criminal, civil, and administrative cases arising from federal and state health care fraud investigations, health care compliance, the False Claims Act and qui tam cases; corporate investigations; and white-collar criminal law. Mr. Levy served as an assistant U.S. attorney with the U.S. Attorney’s O ffi ce for the District of New Jersey from – and was the o ffi ce’s criminal health care fraud coordinator from – . Mr. Levy has taught as an adjunct professor of health care fraud and abuse at Seton Hall Law School. 3 3 vo l . 9 9 , n o s . 1 – 2 , ja n ua ry – f e b rua ry 2002 n ew jersey medicine • •
p r actice management: m e d i care au d i t s Of course, simply because a physician submits documented appropriately in the patient’s chart. a large number of claims does not mean that there The carrier will review the patients’charts and any is anything wrong. Indeed, Medicare’s use of the other requested records, sometimes employing a term aberrant is often misplaced. For example, physician consultant who has expertise in the pro- consider ophthalmologists who are audite d cedure(s) that are the subject of the audit. because they exceed their peers’ reimbursements In some cases, the Part B carrier will conclude for cataract surgery. The use of the term aberrant that there has been an overpayment. The reasons to describe this billing pattern suggests that the for overpayments vary. The most common billing billing is surprising or unexpected, and that the errors are: providing insu ffi cient or no documen- physicians deviated from the proper or expected tation, using incorrect codes for medical services course of treatment. This would be a fair charac- and procedures performed, and billing of services terization if we were discussing pediatric ophthal- that were not medically necessary or that were not mologists. But suppose they are ophthalmologists covered. For fi scal year , the O ffi ce of the p racticing in re t i rement communities that are Inspector General ( oig ) reported that Medicare densely populated with Medicare patients. Far paid approximately $ . billion because of such Physicians generally fi nd the docu- from surprising, these physicans’ billing patterns billing errors. should be anticipated. Given a logical explanation mentation re q u i rements particularly irk s o m e . such as this, why should the physician have to Auditors, however, frequently maintain that if a endure the time and expense of an audit? It does service is not documented in the patient’s medical not seem fair. But at the end of the day, if you’ve record in accordance with Medicare billing guide- been selected for an audit,it matters very little how lines, then the claim should be denied. Conse- or why you have been selected. Much like a tax quently, even though the services were necessary audit by the Internal Revenue Service, complain- and actually performed, the Part B carrier may ing about the unfairness of being subjected to an deny claims if the services were not properly doc- audit is unproductive.Like a tax audit,all that mat- umented. ters is being able to defend and document what Once carriers determine that there has been an you have done. overpayment, they extrapolate. A typical audit is How will you know when you are being audit- based on a review of a small number of claims cov- ed, and what does the Part B carrier do during an ering a brief period. For example, for a single audit? In many cases,the provider will be noti fi ed physician, a carrier might elect to look at twenty of an audit by a letter from the carrier requesting claims over six months.The result may be an over- copies of a select number of patients’ records. payment determination of $ , . But the carrier Such a request may identify the particular proce- doesn’t stop there. Rather, Medicare extrapolates dure or procedures under review along with a list this number to cover a much broader period, fre- of patients and corresponding dates of service. In quently the six years preceding the audit. For addition to requesting access to the patient charts, example, depending on the size of the practice carriers may interview patients; speak with the being audited and the total paid for the service(s) provider’s employees; speak with any billing con- audited, through extrapolation, twenty claims can sultants used by the provider; and speak with the become hundreds or thousands of claims, and a p rov i d e r. A post-payment audit invo lves the $ , ove r p ayment may suddenly mushro o m review of individual patient charts to determine into a projected overpayment of $ , , or $ whether the services claimed were reasonable and million,or more.The carrier noti fi es the physician necessary for the diagnosis or treatment of an ill- of the projected overpayment and typically o ff ers ness or injury, were actually performed, and were t h ree options: pay the pro j e c ted ove r p ay m e n t 3 4 n ew jersey medicine ja n ua ry – f e b rua ry 2002 , vo l . 9 9 , n o s . 1 – 2 • •
Recommend
More recommend