The OIG Issues its 2012 Work Plan

Each October marks the height of playoff baseball, the changing of the leaves, and the beginning of a new fiscal year for the Federal government. With the beginning of each new fiscal year, health care providers of all sizes and types are informed of the audit and enforcement plans of the Federal regulators charged with overseeing the federal health care programs. The Office of Inspector General (“OIG”) at the Department of Health and Human Services (“HHS”), the entity tasked with protecting HHS programs by detecting and preventing health care fraud and abuse, released its 2012 Work Plan this month, providing insight on the reviews and activities that the OIG will pursue during the next twelve months and beyond.

The Work Plan offers health care providers a glimpse into the future and an opportunity to see the issues that the OIG plans to focus its investigative resources on. Knowing what to expect in the coming year regarding enforcement and audits can be a useful tool in providers’ own internal compliance efforts. Providers may take a look at their own practices in these related areas in order to assess compliance with the applicable federal laws. Some of the key areas affecting Delaware health care providers are listed below, and the entire plan can be viewed at the OIG website. ( http://oig.hhs.gov/reports-and-publications/workplan/index.asp#current)

HOSPITALS

Medicare Inpatient and Outpatient Payments to Acute Care Hospitals
OIG will review Medicare payments to hospitals to determine compliance with selected billing requirements. OIG will utilize data mining techniques to select hospitals for focused reviews and will then recommend recovery of overpayments and identify those providers deemed high-risk, who routinely submit improper claims.

Acute-Care Hospital Inpatient Transfers to Inpatient Hospice Care
OIG will review Medicare claims for inpatient stays where the beneficiary was transferred to hospice care. The relationship (financial or common ownership) between the entities will be examined, as well as how Medicare treats reimbursement for similar transfers to other settings.

Medicare Outpatient Dental Claims
Medicare hospital outpatient payments for dental services will be reviewed to determine if payment was proper under Medicare requirements. Dental services are only covered under a few exceptions, but based on OIG audits, providers received significant overpayments.

Hospital Claims with High or Excessive Payments
OIG will review high payments to determine whether they were appropriate. Specifically, OIG’s work will include outpatient claims in which payments exceeded charges.

Inpatient Prospective Payment System: Hospital Payments for Nonphysician Outpatient Services
OIG will review the appropriateness of these payments for services that were provided to beneficiaries shortly before or during covered stays at acute care hospitals. Prior reviews have revealed a significant number of improper claims.

Medicare Inpatient and Outpatient Hospital Claims for the Replacement of Medical Devices
Medicare is not responsible for the full cost of a replaced medical device if the hospital receives a partial or full credit from the manufacturer. As such, OIG will review whether claims for the insertion of replacement devices utilized the proper modifier when a credit is received.

Observation Services During Outpatient Visits
Improper use of observation services may result in high cost sharing for beneficiaries, so OIG will review Medicare payments for observation services provided by outpatient departments.

Hospital Admissions With Conditions Coded Present on Admission
OIG will review Medicare claims to determine which facilities (e.g., SNF or rehabilitation facilities) most frequently transfer patients with certain diagnoses that were coded as being present on admission.

Accuracy of Present-on-Admission Indicators Submitted on Medicare Claims
Beginning in 2008, CMS required hospitals to submit present-on-admissions indicators with each diagnosis code on inpatient claims. The Affordable Care Act provides that hospitals with high rates of hospital-acquired conditions will receive reduced payments, and as such, accurate present-on-admission indicators are necessary for CMS to carry out this new law. OIG will review the accuracy of the present-on-admission indicators that were submitted by hospitals in 2008.

NURSING HOMES

Nursing Home Compliance Plans
OIG will begin to review nursing homes’ compliance plans after Section 6102 of the Affordable Care Act mandated compliance and ethics programs to detect and prevent criminal, civil, and administrative violations. CMS must issue regulatory requirements for the programs by 2012, but OIG will begin to review those programs already in place.


OTHER PROVIDERS

Physicians: Incident-To Services
OIG will review physician billing for “incident-to” services to assess whether payment had a higher error rate than the rate for non-incident-to services. OIG believes such services may be vulnerable to overutilization, and as such, the services will be subject to closer scrutiny.

Physicians: Place-of-Service Errors
OIG will review physicians’ coding on Medicare Part B claims for services performed in ambulatory surgical centers and hospital outpatient departments to determine whether they properly coded the places of service. Federal regulations provide for different levels of payments to physicians depending on where services are performed.

Evaluation and Management Services: Use of Modifiers During the Global Surgery Period
OIG will review the use of certain claims modifier codes during the global surgery period to determine whether the use was appropriate and in accordance with Medicare requirements.

Diagnostic Radiology: Excessive Payments
OIG will review payments for high-cost diagnostic radiology tests to determine whether they were medically necessary. Additionally, the review will target whether, and to what extent, the same diagnostic tests are ordered both by the primary care physician and specialists for the same treatment.

Medicare Payments for Part B Claims with G Modifiers
OIG will review payments from 2002 to 2010 for claims where certain modifier codes were used to indicate that Medicare denial was expected. The review will identify the extent to which Medicare paid those claims and the providers with atypically high billing related to the modifiers.

Delaware Board of Medical Licensure and Discipline Issues Proposed Rule on Use of Controlled Substances for the Treatment of Pain

On September 30, the Delaware Board of Medical Licensure and Discipline issued a proposed rule, “Use of Controlled Substances for the Treatment of Pain,” and has asked for comments preceding a public hearing in November. The proposed rule adopts the Federation of State Medical Board’s Model Policy for the Use of Controlled Substances for the Treatment of Pain and is meant to “alleviate licensed practitioner’s uncertainty, to encourage better pain management, and to minimize practices that deviate from the appropriate standard of care.”

The Board recognizes that the appropriate treatment of pain is fundamental to the practice of medicine, but it notes that practitioners may lack knowledge regarding pain management or may fear investigation or sanction by federal, state and local agencies, which have been focusing on pain management practices. These factors contribute to the “inappropriate treatment of pain.” The rule implies that the failure to become knowledgeable about treating pain is considered inappropriate just as the failure to follow statutory requirements in prescribing controlled substances. The proposed rule will consider the inappropriate treatment of a pain “a departure from standards of medical practice,” and such departures will result in investigations and potential discipline. Thus, the purpose of the proposed rule is to establish specific requirements for using controlled substances to treat chronic pain as well as the required safeguards to minimize risks of drug abuse and diversion. The comment period, which is open up to and including the date of the public hearing, November 1, 2011, is the provider’s opportunity to influence the final regulation.

The preamble to the rule states that the Board will not discipline a licensed practitioner for ordering, prescribing, dispensing or administering controlled substances “for a legitimate medical purpose and in the course of professional practice.” The prescribing of a controlled substance must be in the course of a practitioner-patient relationship and “should be based on a diagnosis of unrelieved pain.” The decision to prescribe controlled substances will be considered “a legitimate medical purpose” if it is based on “sound clinical judgment.” The takeaway for providers from the preamble is an emphasis on documentation. While the Board recognizes the place for controlled substances in the treatment of pain, the overriding concerns of abuse and diversion require extensive documentation of the practitioner-patient relationship. Under the rule:

“[t]he practitioner’s conduct will be evaluated to a great extent by the outcome of pain treatment, recognizing that some types of pain cannot be completely relieved, and by taking into account whether the drug used is appropriate for the diagnosis, as well as improvement in patient functioning and/or quality of life.”

The proposed rule requires a documented evaluation of the patient and a treatment plan. The benefits and risks of controlled substances must be discussed and if a patient is considered “high risk” for medication abuse, the patient must enter into a treatment agreement with the practitioner and submit to, among other conditions, random urine drug screening.

Importantly, the proposed rule does not envision the decision to treat pain with controlled substances as the end of the treatment continuum; practitioners shall review the course of pain treatment on a continued basis to determine whether alternative treatment modalities are more appropriate for the patient. This raises a few issues. First, it is possible that pain patients being treated with controlled substances may have different goals than their provider. There is any number of reasons that a patient may refuse alternative treatment options, such as invasive surgeries. Communication will be of the utmost importance, but the rule does not envision potentially common scenarios where the patient and practitioner disagree on the continued use controlled substances days, weeks, or months into the treatment relationship. And when patient and practitioner disagree during an ongoing treatment regimen, the specter of abandonment looms overhead.

Again, documentation requirements are stressed, and a section of the proposed rule addresses the maintenance of accurate and complete medical records. However, practitioners can look at these requirements as protective measures to assure compliance not only with appropriate standards of treatment, but also pain treatment coding and billing, which is receiving high levels of scrutiny from government payers and enforcement agencies.

A public hearing will be held on November 1, 2011 at 3:00 PM in the second floor conference room A of the Cannon Building, 861 Silver Lake Boulevard, Dover. Those in attendance will be invited to share their comments. Written comments may also be submitted to this address up to the date of the public hearing. For more information and to read the full proposed rule, visit http://regulations.delaware.gov/register/october2011/proposed/15%20DE%20Reg%20498%2010-01-11.htm.