Kusserow on Compliance: False Claims Act settlements on the risk spectrum

OIG reported results of action taken in FY2019

The government’s primary civil tool for addressing health care fraud is the False Claims Act (FCA) and most of these cases are resolved through settlement agreements in which the government alleges fraudulent conduct and the settling parties do not admit liability. Based on the information it gathers in an FCA case, the OIG assesses the future trustworthiness of the settling parties (which can be individuals or entities) for purposes of deciding whether to exclude them from the federal health care programs or take other action. The OIG applies published criteria to assess future risk and places each party to an FCA settlement into one of five categories on a risk spectrum. OIG bases its assessment on the information OIG has reviewed in the context of the resolved FCA case and does not reflect a comprehensive review of the party.

The OIG published its FCA risk spectrum report for 2019. The amount of settlements was not part of this report but will be provided separately later. There were fifteen entities excluded based on FCA violations. Another 40 entities entered into Corporate Integrity Agreements (CIAs), which was at about the same rate as in recent past years. Also reported were two cases where the entity was placed on Heightened Security, rather than signing a CIA. In addition there were twelve self-disclosures related to FCA violations reported.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

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Copyright © 2019 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: CMS issues final rule on affiliation disclosure requirements for the provider enrollment process

CMS issued a final rule on September 10 that sets forth requirements mandating providers and suppliers who submit an application for enrollment or revalidation for Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP) disclose current or previous (up to five years) affiliations with a provider or supplier who has uncollected debt; has been or is subject to a payment suspension under a federal health care program; has been excluded from participation from Medicare, Medicaid, or CHIP; or has had billing privileges denied or revoked. CMS said a history of bad actors trying to escape the ramifications of inappropriate or fraudulent behavior by re-entering the program in some capacity, and/or shifting their activities to another enrolled Medicare provider or supplier with which they are affiliated, provided the motivation for the rule. In addition to furnishing the disclosure information, the provider must submit: (a) an organizational diagram identifying all of the entities listed in this section and their relationships with the provider and with each other; and (b) if the provider is a skilled nursing facility, a diagram identifying the organizational structures of all of its owners.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2019 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG Work Plan update on Hospital Sector

The HHS Office of Inspector General (OIG) Work Plan sets forth various audits and evaluations that are underway or planned during the fiscal year and beyond. Since June 2017, the OIG modifies the plan monthly to add new items and remove completed ones. When developing its plans, the OIG assesses relative risks in HHS programs and operations to identify those areas most in need of attention. The OIG recently reported updates to its planned work in the hospital sector that include:

  1. Determining whether: (1) skilled nursing facility (SNF) level of care was certified by a physician or a physician extender; (2) a condition treated at the SNF was one which the beneficiary received inpatient hospital services or a condition that arose while receiving care in a SNF; (3) daily skilled care was required; (4) services delivered were reasonable and necessary for the treatment of a beneficiary’s illness or injury; (5) improper Medicare payments were made on claims reviewed; and (6) hospital admissions were potentially avoidable.

 

  1. Reports on a data brief that describes nursing staffing levels reported by facilities to the Payroll‐Based Journal; examination of CMS’s efforts to ensure data accuracy and improve resident quality of care.

 

  1. Determining whether CMS corrected the common working file (CWF) edits and ensured they are working Prior review found that CMS CWF edits related to transfers to home health care, SNFs, and non‐IPPS hospitals were not working properly.

 

  1. Review of overstated Medicare charges on outpatient claims that contain both an outlier payment and a reported medical device credit to determine whether Medicare payments for replaced medical devices and their respective outlier payments were made in accordance with Medicare requirements.

 

  1. Determine how inpatient hospital billing has changed over time and describe how inpatient billing varied among hospitals and will use results to target certain hospitals or codes for a medical review to determine the extent to which the hospitals billed incorrect codes.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2019 Strategic Management Services, LLC. Published with permission.

National review of Medicaid opioid prescribing not yet feasible

The Office of Inspector General (OIG) has determined that limitations of the national Medicaid claims database, the Transformed Medicaid Statistical Information System (T-MSIS), makes a national review of opioid prescribing in Medicaid unfeasible. The system cannot yet identify all at-risk beneficiaries and providers, the OIG reported (OIG Report, No. OEI-05-18-00480, August 2019).

The OIG assessed the completeness of variables necessary to identify beneficiaries at risk of opioid misuse or overdose and the National Provider Identifiers (NPIs) of providers that ordered and dispensed opioids. According to the report, states were missing data necessary for a national review. Some states did not require NPI to be collected. Others included NPI in their data but incorrectly submitted the data or were unable to transmit the data to T-MSIS because of outdated systems. Without a provider NPI, it is not possible to identify all providers who may be overprescribing opioids and take appropriate action, or to identify providers for investigations of fraud, waste, or abuse, the OIG found.

Identification of beneficiaries can be impeded because a Medicaid beneficiary can have multiple IDs within a state or across states. If a beneficiary does have multiple IDs, prescriptions dispensed to the IDs would appear to be for multiple persons rather than one person. The OIG noted in the report that without a unique beneficiary ID, it is not possible to identify all at-risk beneficiaries in need of opioid-related treatment and conduct proper monitoring of services to protect beneficiaries from inadequate coordinated care.

States also have failed to report diagnoses codes for all services despite being required to do so. Without a diagnosis code, it is not possible to exclude all patients with cancer diagnoses for whom higher doses of opioids may be appropriate or to identify patients’ medical conditions to determine medical necessity for services.

The OIG noted in the report that in August 2018, CMS that all states were submitting T-MSIS data and that CMS was prioritizing T-MSIS data quality. According to the OIG, CMS indicated it would have research files available in 2019. CMS currently has been working with states to improve the quality of data submissions.

Recommendations

The OIG recommended that CMS strive to ensure that individual beneficiaries can be identified at a national level using T-MSIS. CMS should address instances in which a single beneficiary has more than one Medicaid ID within a state. CMS also should prioritize state reporting of prescriber NPIs and issue guidance to clarify the requirements for diagnosis codes.