Page 0September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
AHLA/HCCA
Fraud & Compliance Forum
Septembe...
Page 1September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Working through legal and related issues ...
Page 2September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Questions employees and contractors Employe...
Page 3September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Immediate Steps to Address
Reported Complia...
Page 4September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Focus on reported/discovered compliance i...
Page 5September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Legal Considerations Throughout
Compliance ...
Page 6September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Engagement of external auditors by legal ...
Page 7September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Sec. 6402(a) of the ACA requires a person...
Page 8September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• CMS proposed that a person has identified...
Page 9September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Define the scope of the compliance audit
...
Page 10September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Process used by physicians, mid-level pr...
Page 11September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Reimbursement Compliance Issues
Discovered...
Page 12September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Pre-billing claims audit and review
• Re...
Page 13September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Analysis and sharing the audit results
•...
Page 14September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Report and refund overpayments to Medica...
Page 15September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• CMS: “The Self-Disclosure Protocol (SDP)...
Page 16September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
OIG Provider Self-Disclosure
Protocol (con...
Page 17September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Recommended Corrective Action
Plan Compone...
Page 18September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
• Who has the overpayment obligation and/o...
Page 19September 29, 2013
Prepared for AHLA /HCCA Fraud & Compliance Forum 2013
Steps to Consider to Limit
Overpayment and...
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Resolving Legal and Audit Issues in an Internal Compliance Investigation

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With compliance as the focus at the 2013 American Health Lawyers Association/Health Care Compliance Association Fraud & Compliance Forum in Baltimore, PYA Consulting Manager Lori Baker and Clay Countryman of Breazeale, Sachse & Wilson, LLP, offered attendees guidance on “Resolving Legal and Audit Issues in an Internal Compliance Investigation.”

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Resolving Legal and Audit Issues in an Internal Compliance Investigation

  1. 1. Page 0September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 AHLA/HCCA Fraud & Compliance Forum September 29, 2013 Resolving Legal and Audit Issues in an Internal Compliance Investigation Clay J. Countryman, Esq. Breazeale, Sachse & Wilson, LLP Clay.Countryman@bswllp.com Lori Baker PYA GatesMoore lbaker@pyapc.com
  2. 2. Page 1September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Working through legal and related issues that may arise during the course of an audit by an external auditor in response to internally reported compliance issues • Analyzing audit results and working with legal counsel to address potential refund and overpayment obligations, and other legal requirements • Discussion of best practices in conducting a compliance audit/investigation Focus of Presentation AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  3. 3. Page 2September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Questions employees and contractors Employee turnover/ Exit interviews Routine/ Annual Compliance Audits Federal Agency Reports and Alerts Hotline/ Ethics Line Competitors Reports to Compliance Committee Consultants Discovery of Compliance Issues and Potential Concerns AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  4. 4. Page 3September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Immediate Steps to Address Reported Compliance Issues • Contact (internal or external) legal counsel to discuss and prioritize initial steps, and focus on maintaining attorney- client privilege on investigation • Immediately require a pre-claims audit of the providers and issues that were reported • Take actions to stop conduct subject to investigation • Determine who to interview and when, considering a provider and/or employees may be terminated or have different interests from the organization
  5. 5. Page 4September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Focus on reported/discovered compliance issues to determine possible scope and time period of issues • Determine compliance with applicable payer billing and reimbursement requirements • Conduct a “Reasonable Inquiry” to determine whether an overpayment exists (2012 CMS Proposed Rule to implement Sec. 6402(a) of ACA regarding reporting and refunding overpayments) • Consider the OIG’s Provider Self-Disclosure Protocol in determining goals and objectives Goals and Purposes of a Compliance Audit AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  6. 6. Page 5September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Legal Considerations Throughout Compliance Audit Process • Sec. 6402 of the ACA: Obligation to report and return overpayments within 60 days of identifying the overpayments • False Claims Act liability • Social Security Act – Sec. 1128B(a)(3) – requirement to return a known overpayment • OIG Self-Disclosure Protocol and other potential resolution routes
  7. 7. Page 6September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Engagement of external auditors by legal counsel • Assess the nature of the reported / discovered issues • Determine level of risk and priorities • Decide path to perform audit (internal / external) • Fact finding through interviews, document review, etc… Compliance Audit: Initial Steps AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  8. 8. Page 7September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Sec. 6402(a) of the ACA requires a person who has received an overpayment to report and refund the overpayment to the Secretary, the State Medicaid Agency or the appropriate Medicare contractor and notify the appropriate agency of the reason for the overpayment. • The overpayment must be reported and returned within 60 days of the date of which the overpayment was identified, or the date any corresponding cost report is due, whichever is later. Obligation to Report and Refund Overpayments AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  9. 9. Page 8September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • CMS proposed that a person has identified an overpayment if the person has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the overpayment. • CMS commented that the receipt of information by a provider concerning a potential overpayment creates an obligation to make a reasonable inquiry to determine whether an overpayment exists. (77 Fed. Reg. 9179, 9182 (February 16, 2012). Obligation to Report and Refund Overpayments (cont’d) AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  10. 10. Page 9September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Define the scope of the compliance audit • Determine an initial audit time period • Selection of services/items to audit • Selection of data • Audit sample of other individual providers to determine whether identified compliance issues are systemic • Determine payers to be audited Determination of the Scope of an Internal Compliance Audit AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  11. 11. Page 10September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Process used by physicians, mid-level providers and others to create medical record and billing documentation • Auditor’s observations on information in medical record and billing documentation (i.e., who created it) • Compare internal notes to supporting processes and documents Important Aspects Discovered During Compliance Audit AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  12. 12. Page 11September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Reimbursement Compliance Issues Discovered During an Audit Signature Issues – Medicare Learning Network ICN 905364; August 2012 Supervision Requirements and Incident to billing – Medicare Benefit Policy Manual; Chapter 15; 50.3 Use of staff as scribes Physician orders Medical necessity issues Duplicated documentation AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  13. 13. Page 12September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Pre-billing claims audit and review • Retrospective audits • Previous and future contractor audits on same or similar issues (i.e., RAC audits) • Any/all federal, state or Medicare contractor communications that affected the issue or course of action Other Considerations in Reviewing Audit Results AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  14. 14. Page 13September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Analysis and sharing the audit results • Determination of next audit steps based on initial results • Identifying overpayments (i.e. claim by claim, extrapolation) • Payment error rate • Other error rates Analysis and Review of Audit Results AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  15. 15. Page 14September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Report and refund overpayments to Medicare contractor • DOJ • OIG Voluntary Self-Disclosure Protocol • U.S. Attorney’s Office Different Courses of Action in Resolving Audit Results AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  16. 16. Page 15September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • CMS: “The Self-Disclosure Protocol (SDP) is available for the resolution of matters that, in the disclosing party’s reasonable assessment, potentially violate Federal criminal, civil, or administrative laws for which a CMP is authorized.” • “The SDP is not available for matters …exclusively involving overpayments or errors.” • The SDP contains specific requirements for conduct involving false billing, including an estimation of the improper amount of claims paid by Federal health care programs and a report with specific information listed in the SDP. OIG’s Provider Self-Disclosure Protocol: Audit Considerations AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  17. 17. Page 16September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 OIG Provider Self-Disclosure Protocol (cont’d) • Self-disclosing parties are required to perform a detailed assessment of the estimation of improper claims, including: – A report containing the objective of the provider’s review, the population of claims reviewed, the sources of data, and personnel who conducted the review, and the characteristics used to identify each item. – The Sampling Plan that was used. AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  18. 18. Page 17September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Recommended Corrective Action Plan Components • Conduct a sample audit of all providers to determine whether identified audit issues are systematic or isolated. • Access, revise and make changes to compliance program and internal audit process (e.g., ensure that all services are being audited). • Review and make changes to the provider’s billing and coding systems, and internal processes to submit claims to third-party payers. • Provide training and follow up education to affected providers and support staff.
  19. 19. Page 18September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 • Who has the overpayment obligation and/or potential civil or criminal liability? • Whether a provider may recover from another provider (i.e., Clinic from an individual physician) for an overpayment and/or settlement? • Providers who are responsible for an overpayment are involved in commercial litigation regarding similar issues. Specific Considerations that May Arise in Resolving Audit Results AHLA/HCCA Fraud & Compliance Forum 2013 September 29, 2013
  20. 20. Page 19September 29, 2013 Prepared for AHLA /HCCA Fraud & Compliance Forum 2013 Steps to Consider to Limit Overpayment and Other Liability • Ensure that periodic internal audits are regularly performed • Address refunds and overpayment liability in a physician’s employment agreement, partner’s service agreement and/or partnership agreement • Address refunds and related issues (i.e., expenses) that arise after termination of a physician’s employment or partnership interest.
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