6/12/2013. CMS Proposed Rule on Medicare Incentive Reward Program and Provider Enrollment

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1 CMS Proposed Rule on Medicare Incentive Reward Program and Provider Enrollment 1

2 Background Medicare Program; Requirements for the Medicare Incentive Reward Program and Provider Enrollment Appeared in Federal Register on April 29, 2013 Comments due by June 28, 2013 Medicare Incentive Reward Program Program designed to provide financial incentives for individuals to report possible Medicare fraud and abuse In effect since 1998 Financial rewards 10% of any amounts recovered Up to $1,000 2

3 Since 1998 Medicare Incentive Reward Program 18 rewards paid $16,000 in rewards $3.5 million collected Proposed Changes Increase the financial incentives to: 15% of amounts recovered, up to $66 million ~ $10 million for relator Clarifying that individual would not be eligible for IRP payment if they filed a qui tam under the False Claims Act or a state false claims act 3

4 Estimated Impact CMS estimates that these changes would increase net recoveries under the IRP from essentially $0 to $24.5 million a year $28.7 million in recoveries $4.3 million in incentive payments Soliciting Comments 1. Whether the increased incentive should be 15% of the amounts recovered, or a greater amount (e.g., 15 30%)? 2. Whether the increased incentive should apply only to the first $66 million, or some other amount? 4

5 Ambulance Back Billing CMS is proposing to limit the effective date of an ambulance supplier s billing privileges to the later to occur of: 1. The date it submits its enrollment application to the Medicare contractor; or 2. The date it starts furnishing services at a new practice location Ambulance Back Billing This change would place ambulance providers on par with physicians and nonphysician practitioners CMS indicated that this is a program integrity measure i.e., allowing ambulance providers to gain retroactive billing privileges increases the odds of fraud 5

6 Estimated Impact CMS estimates that prohibiting back billing will save Medicare $327 million a year $163 million as a low-end estimate $545 million as a high-end estimate AAA s Position The AAA believes that a blank restriction on back billing would be overbroad, and would leave ambulance suppliers without a viable remedy where circumstances beyond their control make it impossible to file an enrollment application prior to commencing services in a new area 6

7 AAA s Recommendations The AAA is asking CMS to implement some mechanism for ambulance suppliers to obtain retroactive billing privileges under limited circumstances Option 1: file a preliminary application, which is supplemented once you get missing documentation Option 2: allow ambulance providers to appeal for retroactive billing privileges Example What if you are asked to take over EMS in a neighboring town on short notice. You apply for and obtain a state/local operating license, but you have to wait for the actual license to be mailed to you Note: the enrollment form asks for copies of the operating licenses 7

8 Revocation for Abuse of Billing Privileges CMS is proposing to expand its existing authority to revoke a provider s or supplier s billing privileges for engaging in certain abusive billing practices. Currently, this authority is limited to situations where the provider or supplier billed for: A patient that was deceased Where the directing physician or beneficiary was out of the state or country on the date of service Where the necessary equipment was not present when the testing was alleged to have occurred Revocation for Abuse of Billing Privileges CMS is proposing to expand this authority to cover situations where a provider or supplier has engaged in a pattern or practice of fraudulent or abusive billing 8

9 Soliciting Comments CMS is soliciting comments on what would qualify as a pattern or practice, but indicated that it could include a scenario in which: a provider or supplier is placed on prepayment review and a significant number of its claims are denied for failure to meet medical necessity requirements over time. Factors to be Considered CMS indicated that it would take into account the following factors: Percentage of claims denied Total number of claims denied The reason claims were denied Any history of final adverse actions (revocations, convictions, etc.) The length of time over which the pattern has continued The length of time the provider or supplier has been enrolled in Medicare 9

10 Soliciting Comments CMS is also soliciting comments on: whether it should consider any additional factors whether any of the factors cited should be disregarded the relative weight it should give to each of these factors AAA s Position The AAA supports the proposed change, but wants to ensure that CMS has sufficient safeguards to prevent a provider s or supplier s billing privileges from being revoked in error. AAA is asking CMS to include the results of the appeals process as one of the factors it considers AAA is also asking for an expedited appeals process for any revocation of billing privileges 10

11 Limit on Use of Corrective Action Plans CMS is proposing to limit the use of Corrective Action Plans to situations where a revocation of billing privileges is based on some minor infraction Limit on Use of Corrective Action Plans It is the duty of providers and suppliers to always maintain such compliance. However, we do believe that a CAP may be appropriate for revocations based on [minor issues of noncompliance]. We have seen numerous instances where a provider or supplier revoked.had only minimally failed to comply with our enrollment requirements. To revoke its billing privileges when the problem can be quickly and easily corrected via a CAP could in some instances lead to unfair results. 11

12 Limit on Use of Corrective Action Plans CAPs would cease to be available for revocations based on: 1. OIG exclusion 2. Felony conviction 3. Furnishing false or misleading information 4. Failing to report a practice location AAA s Position The AAA supports the proposed change, but is asking CMS to provide a clearer definition of what constitutes a practice location for an ambulance service. The AAA also listed other areas of confusion on the 855B form, including zip codes and vehicle information 12

13 Additional Proposed Changes 1. CMS is proposing to clarify the definition of enrollment to provide that physician and nonphysician practitioners that enroll in Medicare simply to order or certify items or services for Medicare beneficiaries are not granted Medicare billing privileges Additional Proposed Changes 2. CMS is proposing to expand its existing authority to deny a provider s or supplier s enrollment application if the provider or supplier, or any owner thereof, owes a pre-existing debt to Medicare. Would extend to situations where the provider, supplier or owner had an ownership interest in another provider or supplier that had its Medicare billing privileges revoked for failure to pay an outstanding debt 13

14 Additional Proposed Changes 3. CMS is proposing to expand its existing authority to deny an enrollment application (or revoke billing privileges) if the provider or supplier, or any owner, has been convicted of a felony within the past 10 years Would extend it to managing employees Would expand the list of felonies that could trigger a denial of billing privileges Additional Proposed Changes 4. Medicare regulations currently require a physician, physician organization, nonphysician practitioner or IDTF to submit all claims within 60 calendar days of the effective date of a revocation. CMS is proposing to expand this requirement to all provider and supplier types Including ambulance 14

15 Additional Proposed Changes 5. CMS is proposing to change the effective date of a re-enrollment bar to be 30 days from the date CMS or its contractor mails notice of the revocation to the provider or supplier Currently, it is the later of 30 days after the mailing of notice or the date of an exclusion, felony conviction, debarment, etc. Needed to ensure CMS can impose the maximum reenrollment penalty OIG Special Bulletin on Effects of Exclusion 15

16 Special Advisory Bulletin May 3, 2013 Updates an earlier bulletin issued in 1999 OIG is addressing issues that have come up since the original guidance document s publication, including: Whether a provider or supplier can be subject to civil monetary penalties (CMPs) for employing an excluded individual, if that individual does not provide direct patient care or engage in billing The scope of a provider s/supplier s obligation to screen for excluded individuals Scope of Prohibition on Excluded Individuals The OIG reiterated earlier guidance that the prohibition extends beyond those individuals directly engaged in patient care or billing Includes people that provide preparatory services, that review treatment plans, that input pharmacy information, etc. OIG specifically referred to services provided by ambulance drivers and dispatchers 16

17 Scope of Prohibition on Excluded Individuals Prohibition also extends to management Excluded individual could not serve as: CEO CFO General Counsel Director of IT or Information Management Director of Human Resources Office Manager Services Ordered by an Excluded Individual OIG indicated that services or items would not be payable if ordered or prescribed by an excluded individual. Applies regardless of whether the provider or supplier that actually furnished the services was excluded For ambulance services, this could potentially apply to non-emergency transports where the PCS was signed by an excluded physician, RN, discharge planner, etc. 17

18 Exclusion Testing The OIG recommends that providers and suppliers screen their employees: At time of first hire Monthly List of Excluded Individuals and Entities: Exclusion Testing The OIG did not take a position on whether providers and suppliers should screen their contractors and subcontractors, or the employees of contractors and subcontractors However, the OIG made clear that they thought it was a good idea!! 18

19 Do I Really Have to do Exclusion Testing on Anyone that Signs a PCS? The OIG didn t take a position on testing for referring physicians You are ultimately responsible for returning Medicare s payment if the physician or other facility responsibility turns out to be excluded Repetitive v. non-repetitive patients? 19

20 Brian Werfel, Esq. A.A.A. Medicare Consultant