Preventing Fraud, Abuse, and Waste

Anti-Kickback Statue

*Criminal law* that prohibits anyone from "knowingly and willfully" receiving a form of payment in return for referring a pt to another provider for services or items covered by Medicare/Medicaid: get in trouble if you ask for a payment OR receive the payment. (have to be able to PROVE they did this- criminal law) Forbids payment in return for purchasing, leasing, or ordering any good, facility, service, or item that would be paid for by Medicare/Medicaid Payment is referred to as "remuneration" and can include anything of value

Physician Self-Referral Law

Also known as the STARK law Prohibits physician referrals of designated health services (DHS) for Medicare and Medicaid patients if the physician (or an immediate family members) has a financial relationship with that entity, unless an exception applies Financial relationship includes ownership, investment interest, and compensation arrangement *No need to prove specific intent Penalties include fines and exclusion from participation in federal health care programs

Civil Monetary Penalties Law

Authorizes the Office of Investigative General (OIG) to seek civil monetary penalties for a variety of conduct Penalties range from $10,000 to $50,000 *per violation* May also include an assessment of up to 3 times the amount claimed for each item or service, or up to 3 times the amount of remuneration offered, paid, solicited, or received.

PT Relationships with Payers

Billing for services NOT provided Billing for services that are not "medically necessary" Billing for PT services provided by aides Billing for PT services provided by PTAs that were not properly supervised by a PT Billing for services that are not reasonable and necessary Upcoding Billing for 1-on-1 services that were not provided 1-on-1 "Pay and Chase" method

Taking Action if there's a Problem

Contact the compliance officer if there is one in the facility Immediately stop submitting the problematic bills Get an experienced health care lawyer Determine if there are any overpayments that need to be returned Disentangle yourself from the problematic relationship When appropriate, consider reporting to the OIG or CMS

Penalties for Anti-Kickback Statue

Criminal penalties include fines and imprisonment Administrative penalty includes exclusion from participation in federal health care programs (can't bill for workers comp, can't see those pts, etc) Civil penalties can add up to $50,000 per kickback plus 3 times the amount of remuneration State may impose additional administrative penalties including licensure revocation

False Claims Act Penalties

False claims can result in fines of up to 3 times the program's loss, plus $11,000 per claim filed A whistleblower provision allows a private individual to file a lawsuit on behalf of the US and share a % of the proceeds from the FCA. protection for whistleblowers There is a *criminal False Claims Act* that can also impose criminal penalties including imprisonment and fines.

Fraud

Generally defined as *intentional* deception or *intentional* misrepresentation that a person makes to gain a benefit for which that person is not entitled. IE: Knowingly billing for services that were not provided, Knowingly altering claim forms to receive a higher payment amount, Falsifying documentation, Using unlicensed individuals to provide services

PT's relationship with Patients

Gifts to patients Waiver of coinsurance and copayments Collecting Cash from Medicare Beneficiaries Free service: *must* meet a standard of need You *must* bill Medicare if the services would be paid by Medicare

Abuse

Involves payment for items or services when there is no legal entitlement to that payment, and the health care provider has not knowingly and/or intentionally misrepresented facts to obtain payment IE: Misusing codes on a claim, Charging excessively for services or supplies, Billing for services that were not medically necessary, Unbundling and billing individual components of service instead of the all-inclusive procedure

Exclusion Statute

Law that requires the Department of Health and Human Services to exclude health care providers and suppliers who have been convicted of certain crimes from participation in all federal health care programs. Includes participation in Medicare, Medicaid, TRICARE, and the Veterans Health Administration CRIMES INCLUDE: Medicare Fraud; Pt abuse or neglect; Felony convictions for other health care-related fraud, theft, or other financial misconduct; Felony convictions for unlawful manufacture, distribution, prescription, or dispensing of controlled substances

Physician Self-Referral Law: Exception

One of the commonly used exceptions to this law often used in PT practice is the "in office ancillary services exception." -- it's more convenient to the pt because it's right there PT is included on the list of 12 "designated health services" that when offered in the physician's office, intended for same day services, and when the physician's office *employs* the PT, is an exception to this law.

Waste

Overutilization of services that directly or indirectly, resulting in unnecessary costs to the health care system. Not considered to be caused by criminally negligent actions but by payment errors/the misuse of resources. IE: Spending on services that lack evidence of producing better outcomes compared with less-expensive alternatives, Failures of care coordination that result in unnecessary hospital readmissions, avoidable complications, and declines in functional status, Ordering unnec. tests- guard against liability (malpractice lawsuits)

Enrollment in Medicare and Medicaid

Physical Therapists in private practice enroll in Federal health programs under their own National Provider Number (NPI); in big institutions they have one NPI for all PTAs cannot enroll, but can provide services billed under the PT's NPI. In hospitals, SNFs, and home health agencies, PT services are billed under the institution's provider enrollment number. PTs in private practice must "revalidate" their enrollment every 5 years.

PT's relationship with Referral Sources

Rental of office space to/from physicians Medical Directors: pay for actual services, not just referrals Gifts to Physicians: anti-kickback law reduced this *must do fair market rate for all services*

Physical Therapist Documentation

Serves as a record of patient/client care Tool for planning and provision of services Communication vehicle among providers Speaks to the PTs abilities, unique body of knowledge and services provided Demonstrates compliance with federal, state, payer and local regulations *Legal defense* Support for appropriate services and reimbursement

False Claims Act

This *civil law* imposes liability on any person who submits a claim to the federal government that he/she knows (or should know) is false. IE: Submitting a bill for medical services that the individual knows he/she has not provided, Falsifying medical records to obtain or retain money

Compliance Programs

Written policies, procedures, and standards to prevent and detect inappropriate conduct Compliance officer Compliance education and training Open lines of communication and a process for reporting complaints Ongoing internal monitoring and auditing Enforcement through disciplinary guidelines Appropriate responses to detected and reported issues