Navigating Your Compliance Journey

Although most medical practices have a formal compliance program in place, many practice managers admit that these programs are not always effective. At the 13th annual National Organization of Rheumatology Managers conference, held October 4-6, 2018, in Tampa, FL, Sean M. Weiss, CHC, CEMA, CMCO, CPMA, CPC-P, CMPE, CPC, Partner, Vice President of Compliance, Doctors Management, delivered a keynote address that focused on how to mitigate a practice’s risk(tied to overcoding, deliberate undercoding, unbundling/exploding coding edits to attain higher reimbursement, poor clinical documentation, etc) during an audit and how to build an effective compliance manual to minimize liability.

Mr Weiss explained to conference attendees that rheumatology practices are increasingly becoming the focus of audit investigations by payers within the healthcare system because of the “extensive costs” for the services that they provide. Whereas his current role is to help healthcare practices avoid the perils of government regulations, Mr Weiss said that his definition of an effective compliance program is typically identical to that of the inspectors who conduct the audits. He defined an effective compliance program as “something that demonstrates a good faith effort.” However, he noted that effective compliance programs are not cookie-cutter checklists available as some off-the-shelf software program—effective programs are intentionally broad and adapted to a practice’s particular needs.

For practices that do have a formal compliance plan in place, Mr Weiss offered a simple warning. “During an investigation, you will be 10 times better off not having a compliance plan if you are not adhering to it than handing officials a book and trying to convince them that you are doing something that in actuality, you are not. That is called giving a false statement, and it carries criminal penalties,” he said.

 The scrutiny facing healthcare providers is an unprecedented situation, according to Mr Weiss, who said his firm has represented clients in approximately $170 million worth of audit cases from some of the nation’s largest insurance payers (eg, the federal government, UnitedHealthcare, Blue Cross Blue Shield, Aetna) over the past year.

“This is the reality of the situation,” he said. “I’ve never seen it so bad in healthcare.”

Due process means that you have been granted every opportunity under the law to be able to prove your innocence. “Our legal justice system says that an individual is innocent until proven guilty in a court of law. That is the way the US Constitution was written. In healthcare, unfortunately, you are guilty until you are able to prove yourself innocent,” Mr Weiss added.

Creating an Effective Compliance Program

How does a practice go about proving its innocence when facing an overbilling claim from one of its payers? From a regulatory standpoint, Mr Weiss suggested that the Justice Manual (previously known as the United States Attorneys’ Manual) is a good place to start. It has formulated 10 principles, known as Filip Factors, to help guide prosecution of businesses in the United States, and taking note of principles 5 and 7 gives organizations insight into what may be a prosecutable offense versus a good faith effort.

General Principle. In conducting an investigation, determining whether to bring charges, and negotiating pleas or other agreements, prosecutors should consider the following factors in reaching a decision as to the proper treatment of a corporate target:

    5. The adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision….

    7. The corporation’s remedial actions, including, but not limited to, any efforts to implement an adequate and effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, or to pay restitution.1

The federal government’s view as to what is a good faith effort is foundational, Mr Weiss told attendees, stating that “as a rheumatology practice, and given the average age of patients, the majority of billings will be paid out from the federal government.” He also explained that, although commercial payers pose a significant risk to medical practices regarding audits, their resources (financial, statistical, and human) are more limited than the government’s resources. “And considering the constant threat of the Medicare Trust Fund going bankrupt, the appetite to recover as much as possible remains high,”he said.

Mr Weiss also pointed out that the government uses multiple contractors (RAC, UPIC/ZPIC, CERT, etc) in its effort to uncover remunerations made to providers that are either not warranted or are higher than what they should be for one reason or another.“The whole premise as to why an organization creates an Office of Inspector General compliance plan is to demonstrate a good faith effort,” he stated.

The US Department of Justice has stated that they are less likely to prosecute practices that have initiated and continue to maintain an effective compliance program because they are far less likely to convince a jury that the practice has committed fraud.

“It is a very difficult litmus test that they have to establish to be able to demonstrate that someone committed fraud. How do they prosecute for false claims? That is the number one thing that you as a healthcare professional need to be aware of,” Mr Weiss warned.

So, how do practices run afoul of the government, payers, and the courts? Deliberate ignorance or complacency, Mr Weiss said. Ignorance of the law is not a defense against it, he asserted. Just because a practice has not been audited for 5, 10, or 15 years, that does not mean that it will not be audited the next day. Therefore, he recommended that organizations be proactive and conduct their own internal audits at regular intervals to evaluate their risk exposure.

Internal Auditing Best Practices

Mr Weiss advised proactive detection of potential billing issues using periodic internal audits of Evaluation & Management coding and documentation. The best practices for these audits may include:

  • Review at least 1 month of remittance advice for apparent coding mistakes, routine denials, and coding patterns
  • Interview key staff to find out “how” and “why” they code evaluation and management services the way they do
  • Audit a sample size of 10 records with a year’s worth of billing history using the current Centers for Medicare & Medicaid Services documentation guidelines
  • Integrate the findings into learning objectives for all providers.

Mr Weiss also suggested that practice managers remain aware of certain statutes, laws, and regulations that may affect their practices, and keep up to date on any of the changes to them that are almost certain to occur. That is what makes maintaining a successful compliance program such a difficult task—just when you have the rules figured out, key interested parties do their best to bend the rules in their favor.

“Compliance is not a destination,” Mr Weiss said. “You are never going to sail into a port, drop your anchor, and go. It is never going to happen. Compliance is a journey. Why? Because every time we think we have figured out exactly what the rules are, they push the goalpost back another 10 yards.”

Source:

1. United States Department of Justice. 9-28.000 - Principles of federal prosecution of business organizations. Updated November 2018. www.justice.gov/jm/jm-9-28000-principles-federal-prosecution-business-organizations. Accessed December 7, 2018.

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