Weekly News and Compliance Strategies on CMS/OIG Regulations, Enforcement Actions and Audits

Volume 24, Number 19 May 25, 2015 Weekly News and Compliance Strategies on CMS/OIG Regulations, Enforcement Actions and Audits 3 4 5 6 7 Contents Quality Is Future Compliance Focus; Consider Billing Implications Checklist for the Nexus of Quality and Compliance Used to Diagnosing Patients, CDS Physicians May Push Documentation CMS Transmittals And Regulations News Briefs Looking for a back issue of RMC? PDF issues, plus a searchable digital database of articles, are archived on your subscriber-only Web page all the way back to 2008! Log in at www. AISHealth.com and click on the newsletter title in the gray My Subscriptions box on the right. Managing Editor Nina Youngstrom nyoungstrom@aishealth.com Contributing Editor Francie Fernald Executive Editor Jill Brown CMS Will Start Probe and Educate Reviews Of Home Health; Eyes Are on Certification CMS said on May 21 that it s expanding probe and educate reviews to home health claims. Medicare auditors will do prepayment reviews to evaluate compliance with physician certification requirements, and documentation requests are expected to hit home health providers around Oct. 1. It s the first time CMS has used the probe and educate strategy outside the twomidnight rule. That also will continue now that Medicare administrative contractors have marching orders to use probe and educate to assess hospital compliance with the two-midnight rule through Sept. 30, consistent with the 2015 Medicare Access and CHIP Reauthorization Act (RMC 5/11/15, p. 8; 4/20/15, p. 1). This is perfect for home care agencies that are audited as part of the probe because they will be able to get quick feedback on the cases that are audited as opposed to waiting the long period of time the other auditors can take to review a case, says Ronald Hirsch, M.D., vice president for regulations and education at Accretive Physician Advisory Services. But CMS did not concomitantly impose a moratorium on other auditors, the way they did with recovery audit contractors and patient-status reviews under the continued on p. 7 Compliance Officer Blew Whistle on Hospital in Stark Case; Settlement Is $18M In a false claims case set in motion by its compliance officer, Westchester Medical Center agreed to pay $18.8 million to settle allegations that certain physician arrangements violated the Stark and anti-kickback laws, the U.S. Attorney s Office for the Southern District of New York said May 15. The settlement also addressed allegations that the Valhalla hospital improperly billed Medicare for graduate medical education. The lawsuit was filed in 2006 by then-compliance officer Dan Bisk. It was still pending in 2009, when Bisk died a week after the crash of a single-engine plane he was a passenger in, says his attorney, Robert Sadowski, of Manhattan. By then, Westchester Medical Center had learned of the false claims lawsuit, and Bisk had left to become compliance officer at a Connecticut hospital. But the case lived on, with his wife authorized to continue on his behalf as administrator of the estate. The U.S. Attorney s Office intervened and on April 14 filed a complaint in intervention with the settlement. The complaint centers on loans that Westchester Medical Center made to Cardiology Consultants of Westchester, a private practice that referred a lot of patients to the hospital, and a consulting agreement between the two parties. Around 2001, the hospital asked Cardiology Consultants of Westchester to establish a practice in Kingston, which is in Ulster County north of Westchester County. That way, the complaint alleged, the cardiology group could expand its patient base and send patients to the hospital. To finance the new practice, Westchester Medical Center created Matrix Resources, which entered into a three-year management agreement with the cardiology Published by Atlantic Information Services, Inc., Washington, DC 800-521-4323 www.aishealth.com An independent publication not affiliated with hospitals, government agencies, consultants or associations

2 Report on Medicare Compliance May 25, 2015 Report on Medicare Compliance (ISSN: 1094-3307) is published 45 times a year by Atlantic Information Services, Inc., 1100 17th Street, NW, Suite 300, Washington, D.C. 20036, 202-775-9008, www.aishealth.com. Copyright 2015 by Atlantic Information Services, Inc. All rights reserved. On an occasional basis, it is okay to copy, fax or email an article or two from RMC. But unless you have AIS s permission, it violates federal law to make copies of, fax or email an entire issue, share your AISHealth.com subscriber password, or post newsletter content on any website or network. To obtain our quick permission to transmit or make a few copies, or post a few stories of RMC at no charge, please contact Eric Reckner (800-521-4323, ext. 3042, or ereckner@aishealth.com). Contact Bailey Sterrett (800-521-4323, ext. 3034, or bsterrett@aishealth.com) if you d like to review our very reasonable rates for bulk or site licenses that will permit weekly redistributions of entire issues. Contact Customer Service at 800-521-4323 or customerserv@aishealth.com. Report on Medicare Compliance is published with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Managing Editor, Nina Youngstrom; Contributing Editor, Francie Fernald; Executive Editor, Jill Brown; Publisher, Richard Biehl; Marketing Director, Donna Lawton; Fulfillment Manager, Tracey Filar Atwood; Production Editor, Carrie Epps. Subscriptions to RMC include free electronic delivery in addition to the print copy, e-alerts when timely news breaks, and extensive subscriberonly services at www.aishealth.com that include a searchable database of RMC content and archives of past issues. To order an annual subscription to Report on Medicare Compliance ($728 bill me; $628 prepaid), call 800-521- 4323 (major credit cards accepted) or order online at www.aishealth.com. Subscribers to RMC can receive 12 Continuing Education Credits per year, toward certification by the Compliance Certification Board. Contact CCB at 888-580-8373. group. For $36,000 a month, Matrix managed the operations of the group, although Matrix covered the fees for an interest rate of 8.5%. When the Kingston office opened, the cardiologists routinely referred patients to Westchester Medical Center for services, including cardiac catheterizations and coronary artery bypass grafts, the complaint alleged. By the time the management agreement was terminated in August 2002, Matrix had advanced the cardiology group $450,000, alleged the complaint. None of it had been repaid because the cardiology group viewed the advances as seed monies for the establishment of the Kingston office and did not believe it should have to pay the advances back, the complaint said. Or the cardiologists would settle for a cut in the interest rate and an extension in the repayment term, the complaint alleged. That s what happened, the government said: The interest rate was reduced to 4.75%, and the cardiology group was given five years to repay it. At the same time, Matrix and Cardiology Consultants of Westchester struck a new deal. In April 2003, they entered into a consulting agreement retroactive to July 2002 that called for Matrix to pay $50,000 a year to the cardiology group, the complaint alleged. But there allegedly are no records of work ever being performed. Between April 2003 and July 2005, the hospital paid the cardiology group $190,000 under the consulting contract, according to the settlement. Westchester Medical Center allegedly got hundreds of referrals because of the Kingston practice, the complaint said. The cardiologists and hospital carefully tracked and discussed them. There s nothing wrong with hospitals lending money to physicians as long as the terms are commercially reasonable, says attorney Bob Wade, with Krieg DeVault in Mishawaka, Ind. If you are going to loan doctors money, make sure you have a market interest rate, he says. You have to think and act like a bank. Initially, that s what Westchester Medical Center did, starting at 8.5% and signing a promissory note with the cardiology group. But then the doctors wanted new and more favorable terms. Anytime you play the referral card to get a business deal, that s a deadly play because it implicates the anti-kickback statute, Wade says. Timesheets Are Recommended Consulting services that aren t documented are hard to defend under Stark, says Wade. If physicians are independent contractors, the agreements must be in writing and compensation set in advance pursuant to the personal services agreement or fair-market-value exceptions. Hospitals often want to honor deals they remember making on a handshake if the physicians truly provided services, but then they would have to return all Medicare reimbursement stemming from the physicians services, he says. It s also possible physicians have a state law claim based on an oral contract. If a state judge upholds the agreement, the hospital would have to pay the physician and then repay Medicare, Wade says. He urges hospitals to insist on timesheets for medical directors and other administrative duties no matter how hard doctors push back on documentation. Some hospitals use detailed timesheets, with the tasks described and the number of hours spent on them, and other hospitals have preprinted forms that physicians sign attesting they worked a minimum number of hours. The detailed one is more defensible, but even getting an attestation is defensible because at least it s signed by the doctor, and that s evidence of the minimum number of hours worked, Wade says. He suggests that administrators cosign timesheets to validate the services documented. The settlement also resolves allegations that Westchester Medical Center provided the services of cardiology residents and fellows to Cardiology Consultants for free and then charged Medicare for them on cost reports. Medicare doesn t pay for direct and indirect graduate medical education when residents and fellows are work- EDITORIAL ADVISORY BOARD: JEFFREY FITZGERALD, Polsinelli Shughart, EDWARD GAINES, Esq., Zotec-MMP, DEBI HINSON, Chief Research and Privacy Compliance Officer, Columbus Regional Health, MARION KRUSE, FTI Healthcare, RICHARD KUSSEROW, President, Strategic Management Systems, Alexandria, Va., WALTER METZ, CPA, MS, JD, Brookhaven Memorial Hospital Medical Center, MARK PASTIN, PhD, Council of Ethical Organizations, CHERYL RICE, Corporate Responsibility Officer for Catholic Health Partners in Cincinnati, Ohio, ANDREW RUSKIN, Esq., Morgan, Lewis & Bockius LLP, BOB WADE, Esq., Krieg DeVault, D. McCARTY THORNTON, Esq., Sonnenschein Nath & Rosenthal, JULIE E. CHICOINE, JD, RN, CPC, Compliance Director, Ohio State University Medical Center, WENDY TROUT, CPA, Director Corporate Compliance, WellSpan Health, AMI ZUMKHAWALA COOK, Chief Compliance Officer for Holy Spirit Health System

May 25, 2015 Report on Medicare Compliance 3 ing in nonhospital settings, such as private practices. Westchester Medical Center should have carved out the time that its residents and fellows spent with the cardiology group from the cost report, the complaint alleged. It s unusual for a compliance officer to be the whistleblower. Bisk, who had a direct reporting line to the audit committee of the board of directors, took his compliance concerns to the general counsel, Sadowski says. Once he started talking to the general counsel, that line of communication was severed, he says. He was pushed aside and marginalized. An attorney for Westchester Medical Center did not respond to RMC s requests for comment. Contact Wade at rwade@kdlegal.com and Sadowski at rsadowski@sflawgroup.com. G Quality Is Future Compliance Focus; Consider Billing Implications When patients suffer a secondary fracture during hip surgery because of a fall from their hospital bed or a clot when they didn t get venous thromboembolism (VTE) prophylaxis, some hospitals are thinking twice about billing Medicare. It s a sign the connective tissue is slowly growing between the compliance and quality departments, which have to work together as payment methods change, and auditors, regulators and enforcers crack down on medical necessity and substandard care, experts say. If compliance programs continue to focus exclusively on traditional risk areas, such as fee-for-service billing, they will become less relevant. The new paradigm of compliance is much broader, said Monica Arrowsmith, vice president of quality management and patient safety at Rideout Health in Yuba City, Calif., at the Health Care Compliance Association s Compliance Institute in Orlando, Fla., on April 22. Quality is oversight of our clinical operations while compliance used to be thought of as oversight for the finance department and billing. Now compliance has to pay attention to the whole shebang. Compliance still does coding and billing audits, especially with ICD-10 looming, said Diana Salinas, senior vice president and chief compliance officer at Rideout Health. But compliance and quality should be collaborating. As compliance officers, we haven t focused on those areas like we should in the future if we want to survive, said Salinas, who also spoke at the conference. Think of it as a Venn diagram, Salinas said. Some areas are pure compliance, some are pure quality, and some areas overlap. For example, a hospital audits the cardiac rehabilitation program and realizes there was no physician supervision for three years, which is both a patient-safety and regulatory failure. Compliance is implicated because we need to look at whether or not to drop the bill because maybe we provided substandard care, Salinas said. So that s where a lot of the connections come. And there s more to the story. Compliance and quality got a big push from the Affordable Care Act, Salinas said. It not only mandated compliance programs, with timelines still to come from CMS, but quality is mentioned hundreds and hundreds of times in the Affordable Care Act, she said. It s no longer a goal or a vision; it s a mandate, with value-based purchasing, the readmission reduction program and meaningful use of electronic health records (EHRs). The overarching goal of the Affordable Care Act is to move us from a fragmented health care delivery system to a high-quality integrated delivery system, and it s kind of shocking to me how many compliance officers haven t been able to talk with quality or have that kind of relationship with the quality team, said Salinas. The stakes are high, and every missed opportunity for improving health care results in unnecessary suffering and missed revenue. To change that dynamic, health systems need a merged vision of quality and compliance, Salinas said. Rideout Health has made a number of changes to accomplish this goal. For example: u It revamped the code of conduct. It was very ruledriven, Salinas said. We can t do this or that. It wasn t getting the attention of employees and wasn t a useful tool. Now the code of conduct is more principle-based, describing the behaviors and interactions expected of employees. It s more of a navigation tool for employees to make good ethical decisions and has scenarios of how we want them to operate. u Rideout created a regulatory compliance committee. Salinas co-chairs this multidisciplinary committee with the quality officer, and its members are one level below senior leadership. It meets monthly and, among other things, develops the risk assessment and work plans. It s a shared responsibility, she said. Compliance is an organizational concept. continued The Industry s #1 Source of News and Strategies on HIPAA Compliance Go to the Marketplace at www.aishealth.com and click on newsletters for details and samples. Call Bailey Sterrett at 202-775-9008, ext. 3034 for rates on bulk subscriptions or site licenses, electronic delivery to multiple readers, and customized feeds of selective news and data daily, weekly or whenever you need it.

4 Report on Medicare Compliance May 25, 2015 u The compliance, risk management and quality departments hold weekly meetings to discuss topics where we have a shared vision, Salinas said. They include patient complaint data, sentinel events, claims data, Joint Commission standards, quality problems and compliance policies. u The compliance officer sits on the quality council, an oversight committee of the governing board. u Certain quality issues are automatically referred to compliance (see checklist, below). By compliance being embedded in quality-type meetings, it becomes part of the organization as opposed to the compliance department being over there, Arrowsmith said. Regulators and enforcers also are more focused on quality. For one thing, Medicare conditions of participation (CoPs) are a significant risk, Arrowsmith said. There are 23 CoPs for hospitals including compliance with applicable laws and regulations (e.g., HIPAA, EMTALA) and each has multiple standards, mostly on quality and safety. If surveyors find CoP deficiencies, CMS puts hospitals on a plan of correction or, if noncompliance is severe, a system improvement agreement. CMS uses system improvement agreements primarily in nursing homes and transplant units but is starting to use them with hospitals, Arrowsmith said. There s another element of risk here. Hospitals, skilled nursing homes and other entities may face fraud allegations if they don t comply with their plans of correction or system improvement agreements, said former federal prosecutor David Hoffman, president of David Hoffman & Associates in Philadelphia. Plans of correction are promises to the government for continued funding, and if you make representations to the government that you have no intention of keeping, that s a false claim, he said at the conference. Hoffman warns facilities not to overpromise the government when fixing problems (e.g., all physicians will be trained and compliant in a new documentation process). Also, plans of correction always include training, but if there is so much turnover that the employees who were trained are gone three months later, is that a meaningful change to your system? There are many areas where quality and compliance overlap. In an area Arrowsmith called safe care and compliance, she described a 72-year-old patient who fell and broke his hip in the hospital. During surgery to repair it, he suffered a secondary fracture, a known risk because of his fragile bones. That prolonged his hospital stay. Should the compliance officer be concerned and maybe hold the bill while responsibility for the fall is determined? We say, we think we probably shouldn t bill the claim. There are too many ifs, and that puts us at high risk. She also would consider how a prolonged stay affects the patient s copays and therefore his satisfaction, and examine data on hospital falls, which in this case identified a cluster on one unit the previous month. No patients were harmed, although one filed a grievance. In an area she called effective care and compliance, Arrowsmith gave the example of a patient admitted for pneumonia who wound up in the ICU after taking a turn for the worse and then suffering a pulmonary embolism. It turned out the physician had not ordered VTE Checklist for the Nexus of Quality and Compliance Compliance programs are broadening to encompass aspects of quality of care, according to Diana Salinas, chief compliance officer, and Monica Arrowsmith, vice president of quality management and patient safety, of Rideout Health in California. Contact Arrowsmith at marrowsmith@frhg.org and Salinas at dsalinas@frhg.org. Quality-Compliance Connection Points The following quality events are those that may be of significance from a corporate compliance perspective and, as such, will be shared with Compliance as incurred or during our periodic, regularly scheduled Quality-Compliance forums. Suspected Patient Abuse or Neglect State Reportable Adverse Events (as per Adverse Event Reporting Law) Unusual Events (under CDPH reporting requirement) Service Disruptions Conditions of Participation Failure Trends (substantial & resistant non-compliance) Quality Failures Hospital Acquired Condition (consistent with HAC/present on admission program) Substandard Care Care Discrepancies Errors resulting in RCA Web addresses cited in this issue are live links in the PDF version, which is accessible at RMC s subscriber-only page at http://aishealth.com/newsletters/reportonmedicarecompliance.

May 25, 2015 Report on Medicare Compliance 5 prophylaxis for the patient, which is a widely recommended clinical practice guideline and a core measure for all hospitals in the EHR incentive program. The day of or day after admission, patients should be screened for VTE and, if they fall within certain parameters, given VTE prophylaxis, or the physician should document why it s contraindicated, Arrowsmith said. Compliance officers may want to consider the metrics from a core measures perspective and whether the hospital should bill Medicare when patients are not receiving the standard of care, she said. This is often a documentation issue, she said. VTE prophylaxis may not have been indicated, but if that s not documented, it s looked at as not given. Ga. Hospital Settled Worthless Services Case When quality is substandard or medically unnecessary, the Department of Justice may step in with a false claims lawsuit. A prevailing theory is that the services provided by a facility were so worthless that it was tantamount to no care at all, Hoffman said. Worthlessservices cases arise when there is evidence of egregious care that rises to the level of actionable neglect. That generally means consistent failures or systemic or widespread problems. I get the sense compliance officers hear about these things and are sometimes powerless to act we have this knowledge, and no one is listening, Hoffman said. Maybe the compliance officer is at odds with legal counsel. Whatever it takes, find someone to intervene, he said, because every failure of care/worthless services case had actual patient harm. For example, in 2012, Satilla Health Services, doing business as Satilla Regional Medical Center, paid $840,000 to settle allegations that it billed Medicare for procedures performed by a physician that were worthless and not medically necessary, the Department of Justice said. The lawsuit, which was originally filed by a whistleblower, alleged the Georgia hospital submitted claims for endovascular procedures performed by Najam Azmat, M.D., that he wasn t qualified or properly credentialed to perform (RMC 8/9/10, p. 5). One patient died, and others were seriously injured, the Justice Department said. In a case like this, Hoffman said, we are getting well beyond malpractice. The government is saying he was doing the procedures so poorly it is tantamount to not doing them at all. The Satilla case also raises the specter of quality and compliance risks from licensure issues. Hospitals can reduce these risks by maintaining source documentation, Hoffman said. Don t take the word of vendors that everyone is licensed, he said. For example, if a hospital hires a therapy provider for its home health agency, you need source documentation from a compliance perspective that everyone is licensed. That means a paper copy of the therapists licenses, not just an attesta- tion from the therapy provider. You have to do more. That s why you have a quality assurance program and track and trend outcomes. If you see something declining, you [intervene] before it hits rock bottom, he said. Contact Hoffman at dhoffman@dhoffmanassoc. com, Salinas at dsalinas@frhg.org and Arrowsmith at marrowsmith@frhg.org. G Used to Diagnosing Patients, CDS Physicians May Push Documentation As a clinical documentation improvement (CDI) consultant, physician Andrew Rothschild has to walk a fine line. His job at Berkeley Research Group is to educate physicians about clinical and documentation issues without influencing their decisions on specific cases, and to train physicians who leave practice to begin work in CDI. He finds the door to noncompliance risks swinging wide when practicing physicians become clinical documentation specialists (CDS) without sufficient preparation or supervision. Sometimes it s a little crazy making. He recently reviewed the chart of a post-op patient with oral cancer and a very low body mass index who had lost more than 20% of her body weight. His provider query about her nutritional status resulted in her physician explaining that the patient wasn t malnourished she just couldn t eat because she had a huge tumor in her mouth and a newly reconstructed jaw. Rothschild says it was painfully obvious the patient was malnourished, and that the physician needs CDI education, but he is limited to querying in a way that won t lead the physician s response. He verbally queried her for more information, hoping for an alternate diagnostic impression, but it didn t help. She restated, not malnutrition per se; rather, her low proteins and weight loss are the result of oral obstruction, but she is missing the diagnostic concepts related to inadequate nutrition, he says. Clearly the patient had significant malnutrition. She couldn t eat, and she didn t have a sufficient alternate source of nutrition. What the physician explained was not clinically logical or defensible, but he had to accept what she wrote for the time being. Accepting the physician s response doesn t always mean we have to code it. Coders shouldn t capture diagnoses they believe are incorrect, inconsistent or unsupported. They are increasingly encouraged to identify these issues and to query for clarification/support or to escalate the case when necessary. This query didn t generate any codable diagnosis, but I can t push the physician to document something contrary to her impression even if it resulted in a correct and defensible diagnosis, he says. At an appropriate time and place, however, Rothschild can work with her on diagnosing and documenting malnutrition. continued Subscribers who have not yet signed up for Web access with searchable newsletter archives, Hot Topics, Recent Stories and more should click the blue Login button at www.aishealth.com, then follow the Forgot your password? link to receive further instructions.

6 Report on Medicare Compliance May 25, 2015 Clinical education mid-query is rarely a compliant option, putting CDS physicians in a tough spot. In similar circumstances, some CDS physicians find it hard to hold back from directly correcting or challenging providers. As much as they want to, CDI specialists cannot tell treating physicians what to document. Instead, they use physician queries and other tools to help physicians identify missing, conflicting or vague documentation as part of CDI programs (RMC 5/17/10, p. 1), according to the American Health Information Management Association (AHIMA). Hospitals risk fraud allegations if CDI specialists are too suggestive about documentation, which could generate more Medicare reimbursement. That risk may be amplified as more physicians step into CDI roles. Physicians are used to being in charge, and some may be more likely to cross the line into a leading diagnosis, although it s usually unintentional or even subconscious, Rothschild says. Many physicians have a harder time turning off their natural tendency to make clinical decisions and to defend them. CDI specialists are not clinically involved in the cases they review, so they have to wear a different hat regardless of their background. They are not necessarily trying to break the rules, but after years of being the answer person, for many physicians it s hard to turn off that psychology. They have to ask other physicians, sometimes former colleagues, about the documentation in a nonbiased way, he says. Some CDS physicians feel uncomfortable that the CMS Transmittals and Federal Register Regulations May 15 May 22 Live links to the following documents are included on RMC s subscriber-only Web page at www.aishealth.com. Please click on CMS Transmittals and Regulations in the right column. Transmittals (R) indicates a replacement transmittal. Pub. 100-04, Medicare Claims Processing Manual Quarterly Update to the Medicare Physician Fee Schedule Database July CY 2015 Update, Trans. 3259CP, CR 9152 (May 15; eff. Jan. 1; eff. July 1; impl. July 6, 2015) July 2015 Quarterly Average Sales Price Medicare Part B Drug Pricing Files and Revisions to Prior Quarterly Pricing Files, Trans. 3258CP, CR 9159 (May 15; eff. July 1; impl. July 6, 2015) July Quarterly Update for 2015 Durable Medical Equipment, Prosthetics, Orthotics and Supplies Fee Schedule, Trans. 3257CP, CR 9177 (May 15; eff. July 1; impl. July 6, 2015) Manual Update to Pub. 100-04, Chapter 1, to include Claims Submitted by Multiple DMEPOS Suppliers, Trans. 3262CP, CR 9079 (May 15; eff. July 1; impl. July 6, 2015) Federal Register Regulations None published. query may give the impression they couldn t figure out the diagnosis on their own. Newer CDS physicians may not realize they are leading a physician to a diagnostic conclusion, Rothschild says. For example, clinicians are expected to document the different types of congestive heart failure (CHF) e.g., acute, chronic, acute on chronic but may not be comfortable with the distinction anymore. As a CDI person, the doctor has to know when it s OK to teach about the diagnosis and when it s not, Rothschild says. If a specific case is not in front of them or in question, it s usually OK. But if the discussion references a pending query or if the chart is right there, it s best not to do the CDI thing because that may cross the compliance line. Personality Is Key for CDS Role For example, while discussing a case at one hospital, a physician told him, I don t believe in specifying systolic or diastolic CHF and will write only CHF without further specifying it. Rothschild felt comfortable mentioning a few things about the distinction among types of CHF while querying, since it could easily become (or appear) noncompliant. Beyond that, it s best to close the chart and either set up a formal education session or plan to engage the physician later in a more casual educational discussion, he says. At another hospital, where the neonatologists were documenting sepsis inconsistently, the department chief asked Rothschild to lecture his staff. CDI physicians should empathize with their colleagues about confusion and frustration around documentation guidelines but also can explain how to adapt and do it better. However, he cautions, you can t use coding information to get them to document clinically without entering a compliance quagmire, he says. And queries, which ask physicians for more information about a diagnosis, should always include ways out, such as an other option so the physicians are free to answer in ways that may be unanticipated by the CDI specialist. To increase the odds of success with CDS physicians, Rothschild says they should be good communicators with strong coding and clinical skills. Personality is the key; you can fix a physician who doesn t understand rules or details, but you can t fix an irritable or controlling personality, he says. Another health information management (HIM) coding consultant also says there are concerns about physician-centric CDI programs. The consultant, who asked not to be identified, explains there s a perception that physician CDI specialists don t have to follow AHIMA industry guidance on queries because they are not coding professionals or nurses. But the query guidance and CDI guidance are for everyone, the consultant Subscribers to RMC are eligible to receive up to 12 Continuing Education Credits per year, which count toward certification by the Compliance Certification Board. For more information, contact CCB at 888-580-8373.

May 25, 2015 Report on Medicare Compliance 7 says. It does not matter what their credential or title is if they are performing this task or are in this CDI (query) role. The guidance should be followed. Two areas of concern appear to be surfacing, the consultant says. One is that CDI programs are allowing designated staff (i.e., nurses and physicians) to go back to previous encounters to query physicians about diagnostic information from current encounters, and the other is that language used to query can appear leading, says the HIM coding consultant. From a coding perspective, you can only code from the current encounter, and language used to clarify documentation needs to be handled very carefully and be non-leading. While it s inappropriate to put an acute diagnosis from a previous encounter into a current encounter if the patient no longer has it, there s nothing wrong with using older medical records to support a current encounter, says Robert Gold, M.D., CEO of DCBA Inc., in Atlanta. The unified health record designated by the federal government is supposed to include all patient information from outpatient and inpatient visits. If the patient has colon cancer and is visiting the hospital for an ear infection, do you think the patient doesn t have colon cancer? The patient still has it, Gold says. Does it meet [Uniform Hospital Discharge Data Set] criteria for a valid secondary diagnosis? Always yes. Cancer affects everything. Contact Rothschild at arothschild@thinkbrg.com and Gold at DCBAInc@cs.com. G CMS Will Probe Home Health continued from p. 1 two-midnight rule, so other auditors can go back to Jan. 1 and deny home care cases, he says. Home health is on the hot seat because auditors and investigators find that Medicare claims often are not supported by documentation that a physician or nonphysician practitioner (NPP) certified eligibility for home health services. Medicare pays for home health when patients are homebound, require skilled services, receive services under a plan of care and have had a face-to-face encounter with a physician or NPP. Certifications are based on a face-to-face encounter with the patient no more than 90 days before home health services start or 30 days after. The face-to-face encounter must be related to the primary reason the patient requires home health services and dated and signed by the physician. Narrative Requirement Went Away Until Jan. 1, there was a physician narrative requirement, but CMS dumped it in the 2015 home health prospective payment system regulation. However, the regulation requires home health agencies to get documentation from the certifying physician and/or acute/ post-acute facility medical record that served as the basis for the certification, CMS says. The new probe and educate reviews will apply to home health episodes that begin on or after Aug. 1, 2015. No end date has been set. Hirsch emphasizes that probe and educate reviews aren t just for edification; home health agencies won t be paid if their documentation falls short. Some hospitals initially misunderstood probe and educate, he says. They thought it was just a teaching tool and wouldn t result in claim denials. Documentation of homebound status is the Achilles heel for home health agencies, Hirsch says. Auditors seem to want a lot of detail about why the patient is eligible for home care. For example, when narratives were still required, it seemed adequate to physicians to write that a patient with a hip fracture is homebound. But he said CMS wanted a lot of detail, such as patient has a fractured hip, requires use of a walker, can only ambulate five steps without resting. To physicians, it was common sense that a patient with a fractured hip was stuck at home, he says. Contact Hirsch at rhirsch@accretivehealth.com. Read about CMS home health probe and educate reviews at http://tinyurl.com/pp4jugv. G NEWS BRIEFS u The former assistant administrator of a Houston hospital was sentenced to 40 years in prison in connection with a $116 million Medicare fraud scheme, the Department of Justice and U.S. Attorney s Office for the Southern District of Texas said May 21. Mohammad Khan, the former assistant administrator of Riverside General Hospital, pleaded guilty in February 2012 to conspiracy to commit health care fraud, conspiracy to pay and receive kickbacks and paying illegal kickbacks. Khan oversaw many of the hospital s partial hospitalization programs (PHPs), which provide outpatient treatment for serious mental illness. So far, 10 people have pleaded guilty or been convicted for their roles in the Riverside General Hospital scheme, the Justice Department says. According to the indictment, Khan defrauded Medicare by submitting false and fraudulent claims for partial hospitalization services Copyright 2015 by Atlantic Information Services, Inc. All rights reserved. Please see the box on page 2 for permitted and prohibited uses of Report on Medicare Compliance content.

8 Report on Medicare Compliance May 25, 2015 NEWS BRIEFS (continued) to Medicare through the hospital. Khan would pay kickbacks to owners and operators of group care homes and assisted living facilities and to patient recruiters in exchange for delivering ineligible Medicare beneficiaries to the hospital s PHPs. Visit http://tinyurl.com/l2vr5l3. u Two U.S. senators have asked HHS Secretary Sylvia Burwell to submit a list of all interpretive rules, also known as non-legislative rules, issued since July 24, 2007, and a list of guidance in draft form. In a letter to HHS, Lamar Alexander (R-Tenn.), chairman of the Senate Committee on Health, Education, Labor and Pensions, and James Lankford (R-Okla.), chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, said, We are concerned that agencies may be issuing guidance to avoid regulatory requirements. The senators also want a list of interpretive rules that have been overturned by courts, among other things. Visit http://tinyurl.com/mtun9fe. u St. Anthony s Medical Center in St. Louis was overpaid $308,853, according to a Medicare compliance review (A-07-14-05059) of 262 claims submitted in 2011 and 2012. The hospital made errors on 53 of the inpatient and outpatient claims reviewed, the HHS Office of Inspector General (OIG) said. On the outpatient side, OIG said the hospital didn t report manufacturer credits for replaced medical devices, billed Medicare for the incorrect number of units for the drug Herceptin and insufficiently documented a procedure. On the inpatient side, the hospital incorrectly coded MS-DRGs, billed outpatient or observation services as inpatient admissions and didn t report manufacturer credits for replaced devices. In response, the hospital s corporate compliance officer, Kelly Schmidt, said the hospital corrected claims, refunded overpayments and took other corrective actions. St. Anthony s is committed to a culture of ethics and integrity, in which compliance with all Medicare standards is a priority, she wrote. Visit http://go.usa.gov/39xtz. u In a new report (OEI-02-14-00480), OIG says 329 general dentists and six orthodontists in California are submitting questionable claims to Medicaid. In 2012, Medicaid paid the general dentists and orthodontists $117.5 million for pediatric dental services, including pulpotomies and extractions. They generally provided a lot of services to an extremely large number of children, OIG said. Notably, half of the dental providers with questionable billing in California worked for dental chains. The majority of these providers worked for five chains, two of which have been the subject of State and Federal investigations. OIG recommended the California Department of Health Care Services do more monitoring of dental providers to flag patterns of questionable billing, among other things. The state agreed. Visit http://go.usa.gov/388jx. Please Get Permission Before Redistributing Entire Issues of RMC On an occasional basis, it is okay for subscribers to copy, fax or email an article or two from Report on Medicare Compliance, without AIS s permission. But unless you have our permission, it violates federal law to make copies of, fax or email entire issues, post newsletter content on any website or intranet, or share your AISHealth.com password to the subscriber-only website. AIS s #1 goal is making its content as useful as possible to subscribers, and we routinely (with no hassle or cost to you) grant permissions of all kinds to subscribers. To obtain our quick permission to transmit or make a few copies, or post a few stories of RMC at no charge, please contact Eric Reckner (800-521-4323, ext. 3042, or ereckner@aishealth.com). Contact Bailey Sterrett (800-521-4323, ext. 3034, or bsterrett@aishealth.com) if you d like to review our very reasonable rates for bulk or site licenses that will permit weekly redistributions of entire issues. Federal copyright laws provide for statutory damages of up to $150,000 for each issue infringed, plus legal fees. AIS will pay a $10,000 reward to persons with evidence of illegal access or distribution of Report on Medicare Compliance that leads to a satisfactory prosecution or settlement. Confidentiality will be ensured. Information on potential violations should be reported in strict confidence to Richard Biehl, AIS publisher (800-521-4323, ext. 3044) or AIS s copyright counsel Tara Vold (571-395-4631, tvold@ vwiplaw.com) of Vold & Williamson PLLC. Call Bailey Sterrett at 202-775-9008, ext. 3034 for rates on bulk subscriptions or site licenses, electronic delivery to multiple readers, and customized feeds of selective news and data daily, weekly or whenever you need it.

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