Identifying ‘60-day rule’ overpayments during routine auditing

The need to identify, report, and return Medicare and Medicaid overpayments to CMS under the “60-day rule” and the ability to understand and prepare for the risks posed by routine auditing are essential for all medical providers. At a recent Health Care Compliance Association (HCCA) webinar, Jean Acevedo, LHRM, CPC, CHC, CENTC, Senior Consultant, Acevedo Consulting, Inc., and Lester J. Perling, Esq., CHC, partner, Broad and Cassel LLP, discussed these topics and offered their recommendations.

The 60-day rule

Section 6402(a) of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) established new section 1128J of the Social Security Act, which requires providers and suppliers who submit claims to Medicare and Medicaid to report and return “identified” overpayments to CMS within 60-days or face potential liability under the federal False Claims Act. These requirements were implemented by CMS in a February 12, 2016 Final rule (81 FR 7653) (see CMS finally codifies the 60-day Parts A and B overpayment return rule, February 12, 2016; and Comments, questions, concerns? Weighing in on the 60-day overpayment Final rule, March 2, 2016).

According to Perling, the Final rule sets forth the following parameters for understanding the 60-day overpayment requirement:

  • Definition of an “identified” overpayment. Providers are responsible for overpayments that they “know or should have known”about through the exercise of “reasonable diligence.” Providers that deliberately choose not to investigate when they are made aware of the existence of potential overpayments, would be held liable under the FCA.
  • Exercising “reasonable diligence”. Reasonable diligence requires that providers (1) implement proactive compliance activities to monitor for the receipt of overpayments; and (2) undertake investigations “in a timely manner” in response to obtaining “credible information” of a potential overpayment.
  • “Timely” defined. CMS considers a “timely” investigation to be at the most six months from receipt of the credible information, except in extraordinary circumstances.
  • When does the 60-day period begin? The 60-day period does not begin to run until the provider has had a chance to undertake follow-up activities and quantify the amount of the overpayment.
  • Lookback period. The 60-day rule applies to overpayments identified within six years after they were received.
  • Repayment options. Providers may use claims adjustment, credit balance, the HHS Office of Inspector General’s (OIG) Self-Disclosure Protocol, or other appropriate processes to report or return overpayments. Regardless of the process used, the refund should include an explanation or the statistical sampling methodology used if the overpayment was extrapolated.

Routine baseline audit

Acevedo next discussed the annual baseline audit performed as part of the organization’s compliance program. She recommended that it be done under the attorney/client and work/product privileges in order to help insulate the organization from exposure.

Physical therapy case study

Acevedo next presented an audit case study of a physical therapy department. She stressed the need for the auditor (whether in-house or an outside contractor) to examine the three critical physical therapy documents: (1) the initial evaluation and plan of treatment; (2) the treatment notes; and (3) the clinician’s progress report.

In preforming the audit, she recommended that the auditor take note of the fact that health care professionals are creatures of habit and that, for example, they will either include all necessary elements in the plan of treatment, the treatment notes, and the progress report, or not (i.e., they are usually consistently good, or consistently bad at recordkeeping). She also cautioned that while this document audit may be time consuming, and it is important that the auditor be thorough and not just review the most recent treatment notes and progress reports.

If the auditor finds that therapy documents are deficient or erroneous, Acevedo suggested that the auditor STOP and do two things: (1) consider the possibility that an overpayment situation exists and the timeline that may kick in under the 60-day rule; and (2) alert the attorney and the owner of the practice. She cautioned, however, about jumping to conclusions and leaving a paper trail of written concerns that may amount to “breadcrumbs” for a government investigator or a whistleblower to follow.

Prospective v. retrospective audits

Perling stressed that whether the audit is prospective (i.e., occurs prior to submission of a claim) or retrospective (post claim submission) it does not matter as the finding of negative result or high error rate in either would potentially activate the 60-day rule requirements.

Issues to consider when auditing

Perling suggested taking the necessary steps prior to audit to create an attorney/client privilege that will be recognized and respected by any government investigator.

Perling also discussed whether the standards the auditor is relying on are authoritative or merely guidance. Perling believes that statutes and regulations are clearly authoritative, but that “not everything CMS publishes is authoritative.” For example, while CMS Manuals and Local Coverage Determinations are binding on the Medicare contractor, they are not binding on an administrative law judge. The real question, according to Perling, is “whether the Department of Justice or a whistleblower will think a standard is authoritative.”

Final thoughts

In closing, Perling and Acevedo offered three reminders: (1) educate before auditing; (2) the routine annual audit should review current compliance with standards, not past deficiencies; and (3) audits are still required for effective compliance programs. The danger, according to Acevedo, “is putting your head in the sand.”

Highlight on Puerto Rico: Just how bad will Puerto Rico’s Medicaid funding crisis be?

Puerto Rico is in danger of a serious Medicaid funding crisis beginning late 2017, according to a data point report by the Office of the Assistant Secretary for Planning and Evaluation (ASPE) under the HHS Secretary from January 12, 2017. Under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), territories like Puerto Rico receive not only an increased funding rate, but a temporary additional Medicaid funding amount for spending above their statutory caps for use between July 2, 2011 and September 30, 2019 (ACA sec. 2005), and another sum provided in lieu of funding for individuals enrolling in health insurance exchanges to be used by December 31, 2019 (ACA sec. 1323). (States only would only receive the sec. 1323 funding when the sec. 2005 funding is exhausted.) Amounting to $6.4 billion, these funds will not reach 2019 but instead will be depleted as early as the first quarter of fiscal year 2018 (or the fall of 2017). The route that Puerto Rico takes in responding to this funding crisis could take this situation from bad to worse.

Background and ACA

Both states and the federal government pitch in to jointly fund the Medicaid program. The amount that comes from the federal government is called the federal medical assistance percentage (FMAP). How much FMAP a state receives is based on its per capita income, with the average being 57 percent (50 percent for wealthier states, 75 percent for the poorest), adjusted on a three-year cycle. U.S territories, like Puerto Rico, however, receive an FMAP amount that varies greatly from that of states because their rates are capped by statute.

Puerto Rico faces immense poverty, with individuals being eligible for Medicaid with an annual income of only $6,600 (compared to $15,800 for the continental U.S.) and families with an income of $10,200 ($32,319). Over one million people are enrolled in Medicaid in Puerto Rico. Under the per capita income formula used to calculate the FMAP of states, and still considering the statutory maximum that is in place, Puerto Rico would receive 83 percent (93 percent absent the statutory maximum). Instead, Puerto Rico’s Medicaid expenditures are matched at 55 percent. This is an increase from the 50 percent that was in effect prior to passage of the ACA.

 Possible scenarios

Two scenarios are provided in the report as options for Puerto Rico to approach the exhaustion of funds. First, Puerto Rico could continue to spend the same amount of its own funds in fiscal year (FY) 2018 as in 2017, adjusting for inflation on a per-enrollee basis, which would result in a decrease in spending to 44 percent less than that required to maintain current enrollment of over one million today. Around 500,000 people would lose coverage. Although this scenario is similar to the funding that was in place prior to the ACA, considering that officials may choose to prioritize infrastructure and debt payments over Medicaid, they may decide on scenario two.

The second option is that Puerto Rico spends none of its own unmatched funds over those necessary to get the maximum federal funding, but that would result in spending being 80 percent less than that required to maintain the current enrollment, and nearly 900,000 individuals would lose Medicaid coverage.

In either case, it is assumed the Puerto Rico will reduce coverage (lowering income eligibility levels or capping enrollment) rather than reduce benefits for those covered by Medicaid.

KFF offers facts about Medicare spending

As the new Administration and Congress consider changes to federal health care programs, including Medicare, a Kaiser Family Foundation (KFF) issue brief offers spending facts about the program, which currently accounts for roughly $1 of every $7 in federal spending. The brief indicated that repealing the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) would increase spending and worsen the program’s long-term financial outlook, but noted that Medicare faces challenges apart from ACA repeal, including higher health costs and an aging population.

Although the program faces financial challenges, KFF noted that Medicare “isn’t going broke.” The Hospital Insurance Trust Fund, which pays for Part A benefits, primarily through payroll taxes, is expected to pay for full insurance benefits until 2028, at which point it will be able to pay for 87 percent of hospital benefits. Part B physician services and Part D drug benefits, however, are paid for through a combination of general revenues and beneficiary premiums and are set only a year in advance. As a result, they are not subject to a funding shortfall, but higher projected spending would increase the amount of general revenue funding and beneficiary premiums required to cover costs. Spending on Part benefits is expected to rise faster than spending on benefits paid for under Parts A and B, with per-capita spending expected to rise 5.8 percent for Part D between 2015 and 2025, compared to 3.2 percent for Part A and 4.6 percent for Part B.

The aging U.S. population is resulting in higher Medicare spending. For example, the number of people over age 65 is expected to double from 2010 to 2050 from 40 million to 84 million, while the number of people over 80—who account for a disproportionate share of Medicare spending—is expected to nearly triple, from 11 million to 31 million. Medicare spending accounted for 15 percent of the federal budget in 2016, and is expected to increase to 18 percent of the federal budget, accounting for $1 in every $6 spent, by 2027. Average annual growth in spending is expected to increase more quickly between 2015 and 2025—at a rate of 7.1 percent—than it did immediately after the ACA was enacted between 2010 and 2015, when it increased at a rate of only 4.4 percent.

ACA provisions reducing payments to providers and Medicare Advantage (Part C) plans reduced overall spending growth from 9 percent between 2000 and 2010 to 4.4 percent between 2010 and 2015. KFF cited a Congressional Budget Office (CBO) report and stated that ACA repeal would add $802 billion to Medicare spending through 2025; KFF opined that repeal would lead to higher deductibles, premiums, and cost sharing for beneficiaries and would hasten the insolvency of the Hospital Insurance Trust Fund (see Repealing the Affordable Care Act—an unaffordable idea?, Health Law Daily, June 24, 2015). With the ACA in place, KFF reports that net Medicare spending is projected to grow from 3.2 percent of the gross domestic product (GDP) in 2016 to 5.7 percent of the GDP in 2046; prior to the ACA, net Medicare spending was projected to account for 8.5 percent of the GDP in 2046.

House Republicans narrow aim to specific provisions in health reform battle

House Republicans introduced four bills as part of a new piecemeal strategy to repeal and redefine the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). The proposed legislation—which will be considered at a February 2, 2017, hearing before the House Energy and Commerce Committee—concerns: (1) special enrollment period (SEP) eligibility verifications; (2) premium rate ratios; (3) grace periods for missed premium payments; and (4) a political promise to continue the ban on preexisting condition exclusions.

SEP

The first bill would require HHS verification of an individual’s eligibility for a SEP before an insurer would be permitted to make coverage effective for that individual. Although HHS has already developed a pilot program for some SEP eligibility verifications, the bill would require HHS to create a verification process, through interim final rulemaking, for plan years beginning on or after January 1, 2018.

Premium variation

The second bill would give insurers more authority to vary the premium rates charged to older enrollees, as compared to younger enrollees, in the individual and small group markets. The bill would permit insurers to raise the current ratio of three-to-one to a ratio of five-to-one, or, to any other ratio established by a state. The greater variation addresses insurer complaints that the three-to-one ratio is not actuarially appropriate.

Grace period

The third bill would reduce the length of the current 90-day grace period afforded to premium tax credit recipients who miss their premium payments. The bill would shorten the grace period to one “provided by law” or one month. Although premium tax credit recipients are, by definition, experiencing financial difficulty, the bill is designed to assuage insurers’ contentions that premium tax credit recipients are using the grace period to skip the last three months of premium payments, catching up only when or if they develop a need for health care. However, HHS noted in the preface of its Notice of Benefit and Payment Parameters for 2018 (81 FR 94058) that such grace period “gaming” claims are unsubstantiated.

Preexisting conditions

The fourth bill, which does not promise a change in policy, is a statement of policy. In essence, the bill is a promise, in the event Congress decides to repeal the ACA, that the health reform replacement will include a provision with an absolute ban on preexisting conditions clauses. The bill establishes Congress’ position that it will not allow a return to a health insurance market where coverage decisions are based upon the status of an enrollee’s health. The bill makes a curious exception, however, for genetic conditions which have not already led to a diagnosis.