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Title: Document, Document, Document:


1
Document, Document, Document If it isnt
written it wasnt done and other Medicare Myths
  • Presented by
  • David M. Glaser, Esq. Gregory J. Warner
  • Fredrikson Byron, P.A. Compliance Officer
  • (612) 347-7143 Mayo Foundation
  • dglaser_at_fredlaw.com (507) 284-9029
  • gwarner_at_mayo.edu

2
Our Agenda Dispelling These Myths
  • If it isnt written, it wasnt done.
  • The carrier has total authority to determine
    medical necessity.
  • Reassignment violations are fraud.
  • NPs and PAs cant bill high level visits.
  • Incident to services must be billed by the
    supervising physician.
  • All physician notes must be signed.

3
We will also discuss common misperceptions
related to
  • Consultations.
  • Preventive medicine.
  • Teaching physician rules.
  • Determining the date to refund overpayments.

4
Separating Fact From Fiction
  • McCarthyism is alive and well, and living in the
    health care industry.
  • Carriers, consultants, clients and counselors are
    often guilty of mistakenly believing some policy
    or conventional wisdom is based in law.
  • Sometimes, theyll use interesting techniques to
    change behavior.

5
Question Authority
  • Is it a requirement or a guideline?
  • Medicare -- ask if it is in the statute,
    regulations, Medicare Carriers Manual, or carrier
    policy.
  • Get a copy of the rule in writing.
  • Ask your lawyer/consultant to explain all
    arguments supporting and refuting their position.
  • Determine if the rule was properly promulgated.
  • Just because they sound smart doesnt mean
    theyre right.

6
Scenario 1
  • A physician saw 1700 patients, you have charts
    for 1200. The physician has some seat of the
    pants notes for some of the remaining patients
    scribbled on the backs of scratch paper.
  • You compare your charts against the documentation
    guidelines and discover the following

7
Audit Results
Under-coded 13 50 15 0 33
Over-coded 11 20 35 81 33
Correctly-coded 76 30 50 19 33
Dr. A Dr. B Dr. C Dr. D Dr. E
8
If it isnt written, it wasnt done.
  • Good advice, but not the law.
  • Medicare payment is determined by the content of
    the service, not the content of the medical
    record.
  • The documentation guidelines are just that
    guidelines (although the carrier wont believe
    that).

9
If it isnt written, it wasnt done.
  • Carriers typically point to Social Security Act
    Section 1833(e), which they often cite
    incorrectly as 1833(d)(1)(e) as support for their
    position.

10
Role of Documentation The Law
  • No payment shall be made to any provider of
    services or other person under this part unless
    there has been furnished such information as may
    be necessary in order to determine the amounts
    due such provider or other person under this part
    for the period with respect to which the amounts
    are being paid or for any prior period.
  • Social Security Act 1833(e)

11
Role of Documentation The Cases
  • Carriers also often cite Anesthesiologists
    Affiliated v. Sullivan, 941 F.2d 678 (8th Cir.
    1991).
  • In that case, the court rejected the defendants
    argument that even if the clinic made billing
    errors they were merely a matter of unartful
    description of the services it provided.

12
Role of Documentation The Cases
  • This situation is distinguishable from EM cases
    because the anesthesiologists defense was even
    if they did not provide services as claimed, they
    provided other reimbursable services.
  • In short, that is a case where the bill does not
    accurately describe the work done.
  • In most EM cases, the bill describes the work
    done, there is simply a lack of documentation.

13
Role of Documentation The Cases
  • A much better analysis is United States v.
    Krizek, 859 F. Supp. 5 (D.D.C 1994), 909 F.Supp.
    32 (D.D.C. 1995, revd in part and affd in part
    111 F.3d 934(D.C. Cir. 1997)
  • The documentation in this case was seriously
    deficient.
  • The court presumed certain work was done, despite
    a lack of documentation.
  • But See U.S. ex rel Semtner v. Medical
    Consultants, Inc., 170 F.R.D. 490 (1997).

14
Role of Documentation Interpretation
  • Common Sense
  • Fire
  • Scenario 2
  • Regardless of any case law, the regulatory
    framework is quite clear.
  • The Code of Federal Regulations contains no
    general documentation requirements. 42 C.F.R.
    4245 requires physicians to furnish sufficent
    information. (There are specfic requirements
    for teaching services.)

15
Role of DocumentationGuidance from HCFA
  • The CPT Assistant explains it is important to
    note that these are Guidelines, not a law or
    rule. Physicians need not modify their record
    keeping practices at all.
  • CPT Assistant Vol. 5, Issue 1, Winter 1995
  • HCFA has publicly stated that physicians are not
    required to use the Documentation Guidelines.

16
Role of DocumentationGuidance from HCFA
Documentation Guidelines for Evaluation and
Management Services Questions and Answers These
questions and answers have been jointly developed
by the Health Care Financing Administration
(HCFA) and the American Medical Association (AMA)
March 1995.
1. Are these guidelines required? No.
Physicians are not required to use these
guidelines in documenting their services.
17
Role of Documentation
However, it is important to note that all
physicians are potentially subject to post
payment review. In the event of a review,
Medicare carriers will be using these guidelines
in helping them to determine/verify that the
reported services were actually rendered.
Physicians may find the format of the new
guidelines convenient to follow and consistent
with their current medical record keeping. Their
usage will help facilitate communication with the
carrier about the services provided, if that
becomes necessary. Varying formats of
documentation (e.g. SOAP notes) will be accepted
by the Medicare carrier, as long as the basic
information is discernible.
18
6. How will the guidelines be utilized if I
am reviewed by the carrier?If an evaluation and
management review is indicated, Carriers will
request medical records for specific patients and
encounters. The documentation guidelines will be
used as a template for that review. If the
documentation is not sufficient to support the
level of service provided, the Carrier will
contact the physician for additional information.
Role of Documentation
19
Role of DocumentationGuidance from HCFA
  • Documentation is relevant only if there is doubt
    that the services were truly rendered
  • 7. What are my chances of being reviewed?
  • Review of evaluation and management services will
    only occur if evidence of significant aberrant
    reporting patterns is detected (i.e., based on
    national, carrier or specialty profiles). Our
    reviews are conducted on a focused basis--there
    is no random review.

20
Role of DocumentationGuidance from HCFA
  • The MCM confirms that documentation is relevant
    only when there is doubt services were really
    provided. MCM 7103.1(I) says an overpayment
    exists if the Physician Does Not Submit
    Documentation to Substantiate That He Performed
    Services Billed to Program Where There is
    Question as to Whether They Were Actually
    Performed . . . (bold added).
  • The MCM does not articulate any documentation
    obligation, with the exception of the TPR.

21
Role of DocumentationInterpretation
  • MCM Section 15501.B requires carriers to
    instruct physicians to select the code for the
    service based upon the content of the service.
  • Instructions from many carriers specify that
    physicians, not their office staff, are to select
    the code. For example, a Travelers Medicare
    Bulletin read

22
Role of DocumentationTravelers Medicare Bulletin
  • Physician involvement in code selection--EM
    Codes were designed to encourage physicians to
    become more closely involved in coding. Since
    office staff are not normally able to assess the
    differences in the amount or intensity of work
    associated with each encounter and since the
    physician is responsible (financially and
    legally) for submitted claims, it is essential
    that the physician actually code for the services
    provided. (Underlining in original.)

23
Role of DocumentationOIG Interpretation
  • The OIG agrees accurate coding is achieved
    when physicians select codes which consistently
    fit the services physicians actually provided.
  • OIG Report Number OEI-04-92-01060, Physician Use
    of New Visit Codes, May 1995.

24
Role of DocumentationInterpretation
  • HCFA has taken a similar position Although good
    documentation can establish the medical necessity
    and good quality of care for a procedure, it is
    not necessarily true that poor documentation
    proves that the medical necessity for a procedure
    was not present or that poor quality of care was
    rendered.
  • OIG Report Number OEI-07-91-00680, Physician
    Office Surgery, June 1993, Medicare and Medicaid
    Guide (CCH) 41, 497, page 36063.

25
Choosing a Code
  • Time is irrelevant unless 50 of the time is
    counseling or coordination of care and that is
    documented coordination of care.
  • History, exam, decision making.
  • Documentation for risk management and billing are
    related, not identical.

26
Role of Documentation The Bottom Line
  • Good advice, but not the law.
  • Poor documentation increases the difficulty of
    prevailing in an audit.
  • As of now, the carriers are instructed to use
    both the 1995 and the 1997 Guidelines, choosing
    the result most favorable to the physician.
  • If it isnt a rule, it isnt an overpayment.

27
Audit Review Results - What Do They Mean?
DocumentationExceeded Code Under
coded13 50 15 0 33
DocumentationDoes NotSupport Code Over
coded 11 20 35 81 33
DocumentationSupports Code Correctly
coded 76 30 50 19 33
Dr. A Dr. B Dr. C Dr. D Dr. E
28
Common Dilemma Should We Quantify Exposure
  • The government may use it against you.
  • It is an effective method of convincing skeptics.

29
Common Dilemma Should We Quantify Exposure
  • If you do it, include a disclaimer like our
    chart reviews are not audits designed to
    determine whether we have been overpaid or
    underpaid. First, they are not a statistically
    valid sample. Moreover, they only review the
    documentation, without attempting to determine
    the amount of work you actually performed.
    Therefore, these figures are far from scientific.

30
Common Dilemma Should We Quantify Exposure
  • However, since a Medicare review would base the
    initial overpayment determination solely on the
    documentation, these figures give you some idea
    of how your charts would fare in the first phase
    of a Medicare review.

31
Common Dilemma Retrospective vs. Concurrent
Reviews
  • Consultants/Lawyers argue duty to refund mandates
    concurrent reviews.
  • This logic seems flawed.
  • Anecdotal evidence suggests concurrent reviews
    are more effective.

32
Scenario 2
  • The president of your group is very productive.
    One day, a patient calls and complains she was
    billed for a complete physical, but she never
    removed any clothes. A review of that
    physicians appointment book reveals that the
    physician worked from 9-3, took lunch, and saw 67
    patients, 6 of which were billed as comprehensive
    physicals. The documentation supports all but 5
    of the visits. (There is a comprehensive
    physical documented for the woman who called.)

33
Scenario 3
  • One of your physicians likes to perform thorough
    exams of patients. The carrier medical director
    feels that the exams could have been more
    cursory, and denies the exams as being not
    medically necessary.

34
The Carrier Has Total Authority to Determine
Medical Necessity.
  • While carriers like to believe this, many courts
    have adopted the treating physician rule.
  • The theory is that the patients physician is
    objective. Therefore, the physicians opinion
    receives deference.
  • Medicares legislative history supports this
    argument.

35
The Carrier Has Total Authority to Determine
Medical Necessity.
  • It is a well-settled rule in Social Security
    Disability cases that the expert medical opinion
    of a patients treating physician is to be
    accorded deference by the secretary and is
    binding unless contradicted by substantial
    evidence This rule may well apply with even
    greater force in the context of Medicare
    reimbursement. The legislative history of the
    Medicare Statute makes clear the essential role
    of the attending physician in the statutory
    scheme the physician is to be the key figure in
    determining utilization of health services.
    Gartmann v. Security of the U.S. Department of
    HHS, 633 F.Supp. 671, 680-681(E.D. N.Y. 1986).

36
The Carrier Has Total Authority to Determine
Medical Necessity.
  • A carrier is expected to place significant
    reliance on the informed opinion of the treating
    physician and to give extra weight to the
    treating physicians opinion. Baxter v. Sullivan,
    923 F.2d 1391, 1396 (9th Cir. 1991).

37
The Carrier Has Total Authority to Determine
Medical Necessity.
  • MCM 7300.5.B forbids carriers from recouping
    an overpayment on the basis of a lack of medical
    necessity if a situation is ambiguous enough that
    the carrier requests its own physician consultant
    to review whether the services are covered.
  • This should place the burden of proof on a
    carrier during an appeal.
  • It provides a firm ground for challenging the
    carriers arguments that office visits can be
    denied as not medically necessary.

38
Scenario 4
  • You have a new doctor join the staff. The
    billing staff, recognizing that it takes 6 months
    to get a provider number, simply use a recently
    departed physicians number while waiting for the
    new number to arrive.

39
It Is Fraud to Violate the Reassignment.
  • Half myth, half truth.
  • Reassignment in a nutshell Only the person
    performing a service can bill for it.
  • The reassignment rules create exceptions allowing
    other organizations to bill for a physicians
    service. Technically, these exceptions apply
    only to physicians and suppliers of services.

40
Reassignment Violations Dont Create an
Overpayment
  • At least one false claim complaint (U.S. ex. rel
    Semtner v. Medical Consultants, Inc.) has
    included counts based on reassignment violations.
    However, that complaint ignores a key fact.
  • MCM 3060.D says a violation of the reassignment
    rules does not create an overpayment.

41
MCM 3060.D
  • An otherwise correct Medicare payment made to an
    ineligible recipient under a reassignment or
    other authorization by the physician or other
    supplier does not constitute a program
    overpayment. It does allow revocation of
    assignment.

42
MCM 3060.D (cont.)
  • Sanctions may be invoked under 3060.13 against a
    physician or other supplier to prevent him from
    executing or continuing in effect such an
    authorization in the future, but neither the
    physician or other supplier nor the ineligible
    recipient is required to repay the Medicare
    payment.

43
Reassignment Violations Dont Create an
Overpayment
  • The question is whether a claim can be false even
    when it does not result in an overpayment.
    Courts have differed on that question.
  • U.S. ex rel. Schumer v. Hughes Aircraft Company,
    63 F.3d 1512, 1525 (9th Cir. 1995) and U.S. v.
    Kensington Hospital, 760 F. Supp. 1120, 1127
    (E.D. Pa. 1991) allow the government to penalize
    claims even without proof of damages.

44
Reassignment Violations Dont Create an
Overpayment
  • By contrast, Stinson v. Provident Life Accident
    Ins. Co., 721 F. Supp. 1247, 1258-59 (S.D. Fla.
    1989) and Young-Montenay, Inc. v. U.S., 15 F.3d
    1040 (Fed. Cir. 1994) hold that absent damages,
    false claims penalties are inappropriate.
  • Even most courts that dont require specific
    proof of damages require some impact on the
    Federal Treasury.

45
Scenario 5
  • An oncologist documents a consult as Ms. Patient
    was referred to me by Dr. Smith to manage her
    colon cancer. At the initial visit, the
    oncologist begins a course of chemotherapy. The
    oncologist mails a copy of his chart notes back
    to Dr. Smith with a brief cover letter thanking
    Dr. Smith for the referral.

46
Its not a consult if you assume care of the
problem.
  • Key test is there a transfer of care. A
    transfer is the shift in responsibility for the
    patients complete care to the receiving
    physician at the time of the referral, where the
    receiving physician documents approval of care in
    advance.
  • Consultants may initiate diagnostic and
    therapeutic services after the initial or a
    subsequent visit.

47
If the chart says referral, it cant be a
consult.
  • The use of the word referral should be
    discouraged, because it is misleading, but its
    presence does not change the reality of the
    visit.
  • Determine whether a physician is seeking an
    opinion or advice regarding a specific problem.

48
Is it a Consult or Visit?
  • A request for a consultation . . . and the need
    for consultation must be documented in the
    patients medical record. MCM 15506.D.
  • A written report must be provided to the
    referring physician. This can be a letter or
    communication via the chart. (What about a
    carbon copy?)

49
Is it a Consult or Visit?
  • Any subsequent visit (i.e., not something to
    complete the initial consultation) is an
    established patient or SH visit.
  • Can have a consultation within a group if the
    consultant is in a separate specialty.
  • Dont forget -- Need all three key components
    history, exam and medical decision-making.

50
Is it a Consult or Visit?
  • Consultation for pre-operative clearance
    Medicare pays the appropriate consultation code
    for a pre-operative consultation for a new or
    established patient performed by any physician at
    the request of a surgeon, as long as all of the
    requirements for billing the consultation codes
    are met.
  • These rules only apply to Medicare. For all
    other payors, rely on the CPT definition.

51
Scenario 6
  • You have a OB/GYN NP who sees patients referred
    in from Internal Medicine physicians. She has
    been billing the visits as consultations.

52
NPs and PAs Can Not Billfor a Consultation.
  • HCFA spokespeople, and most carriers say that
    nurse practitioners and physician assistants can
    not bill for a consultation.
  • This disregards the language in MCM 15501.G that
    suggests that PAs, NPs, CNSs and midwives can
    perform any service in CPT codes 99201-99499 when
    performed incident to a physicians services.

53
MCM 15501.G
  • Services Furnished Incident To Physicians
    Service By Nonphysician Practitioners--Advise
    physicians when evaluation and management
    services are furnished incident to a physicians
    service by a nonphysician practitioner who meets
    the criteria in 2154, 2156, 2158 or 2160, the
    physician may bill the CPT code that describes
    the evaluation that service furnished.

54
MCM 15501.G (cont.)
  • When evaluation and management services are
    furnished incident to a physicians service by a
    nonphysician employee of the physician, not as
    part of a physician service, and the employee
    does not meet the criteria in 2154, 2156, 2158
    or 2160, the physician bills code 99211 for the
    service.

55
NPs and PAs Cant Billa Level 4 or a Level 5.
  • HCFA spokespeople and carriers have often said
    that NPs and PAs can not perform complex medical
    decision making, and therefore can not bill any
    high level visit.
  • No authority is cited for that proposition.
  • Even if they can not perform high level decision
    making, NPs and PAs can do comprehensive H Ps,
    allowing high level established patient visits.

56
NPs and PAs must bill exclusively independently
or incident to.
  • As long as you meet the requirements for billing
    incident to you can bill incident to and get
    paid 15 more, even if you have an independent
    number.
  • Know the incident to requirements, including
  • W-2 or leased employee relationship.
  • Initial and ongoing contact with a clinic MD.
  • MD supervision in the office suite.
  • The service can not be in a hospital/SNF

57
A good lesson
  • Sometimes professional and other associations
    have an agenda, and may inadvertently
    mischaracterize a legal situation. Beware.

58
Incident to Services must be billed under the
Supervising Physician
  • There is no national guidance stating whose UPIN
    should be on the claim. I prefer billing under
    the attending physicians number, but either
    approach seems defensible.

59
MCM 2050.3
  • In highly organized clients, particularly those
    that are departmentalized, direct, personal
    physician supervision may be the responsibility
    of several physicians as opposed to an individual
    attending physician. In this situation, medical
    management of all services provided in a clinic
    is assured. A physician ordering a particular
    service need not be the physician who is
    supervising the service. Therefore, services
    performed by therapists and other aides are
    covered even though they are performed in another
    department of the clinic.

60
Scenario 7
  • You have been providing routine screening exams
    to patients, and billing them to Medicare with a
    proper V diagnostic code to get a denial. You
    discover Medicare has been paying the claims.
    You also discover that you have not received an
    ABN from the patient.

61
Senario 8
  • My grandmother, who has high blood pressure,
    diabetes, and a host of other conditions she
    loves to mention, calls and schedules an annual
    physical.

62
Preventive Medicine
  • This is one of the most confusing coding issues.
  • Split billing is the answer.
  • The covered visit is provided in lieu of part of
    the preventive medicines service of equal value
    to the visit. The physician may charge the
    beneficiary the difference between the
    physicians current established charge for the
    preventive medicine service and the established
    charge for the covered visit. MCM 15501.E

63
Screening
  • There could be covered and non-covered procedures
    performed during an encounter. Consider each
    test individually. Procedures which are for
    screening for asymptomatic conditions are
    non-covered those ordered to diagnose or monitor
    a system, medical condition or treatment are
    evaluated for medical necessity and, if covered,
    are paid.Modifier 32.

64
You Cant Bill Without a Waiver.
  • Legally, a physician is not required to give a
    beneficiary advanced written notice that the
    preventive visit is uncovered. However, the
    physician is responsible for notifying the
    patient in advance of his/her liability for
    charges for services that are not medically
    necessary to treat the illness or injury.

65
You Cant Bill Without a Waiver.
  • Technically, it is better to refer to them as an
    advanced beneficiary notice.
  • ABNs are only required when an otherwise covered
    service is considered not medically necessary.
  • If the law excludes a service, no waiver is
    required.
  • That said, waivers are an excellent patient
    relations tool.

66
All charts must be signed.
  • Carriers/consultants often claim that signatures
    are required.
  • There is no rule requiring signatures for clinic
    services.
  • Conditions of participation for hospitals/other
    facilities may require signatures in the chart
    COPs are different from reimbursement rules.

67
Scenario 9
  • A teaching physician is involved in three
    different procedures at the same time. The key
    portions of the three procedures do not overlap.

68
The Conflict Regs vs. Manual
  • MCM 15016 says
  • In order to bill for two overlapping surgeries,
    the teaching surgeon must be present during the
    key portions of both operations. In the case of
    three concurrent surgical procedures, the role of
    the teaching surgeon (but not anesthesiologist)
    in each of the cases is classified as a
    supervisory service to a hospital rather than a
    physician service to an individual beneficiary
    and is not payable under the Medicare fee
    schedule.

69
The Conflict Regs vs. Manual
  • The rules have no comparable limitation. 42 CFR
    415.172 says In the case of surgical, high
    risk, or other complex procedures, the teaching
    physician must be present during all critical
    portions of the procedure and immediately
    available to furnish services during the entire
    service or procedure.

70
Teaching Physician Rules Only Apply in Academic
Centers.
  • Determine if independent billing is possible
  • Is the individual in an approved residential
    program?
  • Does the time count toward their graduation
    requirements?
  • Is the service in a hospital or a clinic?
  • Be particularly careful with fellows.

71
Teaching Physician Rules Only Apply in Academic
Centers.
  • Understand the teaching physician rules. For E
    M services the attending physician must either
  • Be present while the resident performs the
    service or
  • Personally perform the key components of the
    service.
  • The documentation must reflect the teaching
    physicians role.

72
All Billing Errors Are Fraud, So They Should be
Reported to The OIG Using the Self-Disclosure
Protocols.
  • Take the government at its word distinguish
    between fraudulent (intentionally or reckless
    false) and innocent erroneous claims. The
    Draft Compliance Program Guidance repeats Janet
    Renos quote that we are not seeking to punish
    someone for honest billing mistakes.
  • If someone wasnt trying to take advantage of the
    system, I wouldnt label the conduct as
    fraudulent.

73
Scenario 10
  • Your cardiologists has rounded on a patient
    following cardiac surgery. The cardiac surgeon
    has been following the patient throughout the
    stay. The cardiologist has billed subsequent
    hospital visits.

74
Only one physician can provide hospital care.
  • Carriers are told if the services of a physician
    other than the surgeon are required during a post
    operative period for an underlying condition or
    medical complication, the other physician reports
    the appropriate evaluation and management code.
    No modifiers are necessary on the claim. An
    example is a cardiologist who manages underlying
    cardiovascular conditions of a patient.
  • MCM 4822.

75
Calculating Voluntary Refunds
  • One of the most common questions when refunding
    money is how far back should I go.
  • First, determine when the relevant rule was
    promulgated. Dont refund before you were
    reasonably on notice.

76
How Far Back Do You Go?
  • The False Claims Act
  • Six years.
  • Three years from the date when facts material to
    the right of action are known or reasonably
    should have been known by the United States, but
    no more than ten years after the violation.
  • Waiver of overpayments when without fault and
    recovery violates equity and good conscience.

77
The Law 42 U.S.C. 1395gg(c)
  • There shall be no adjustment as provided in
    subsection (b) (nor shall there be recovery) in
    any case where the incorrect payment has been
    made (including payments under section 1814(e))
    with respect to an individual who is without
    fault or where the adjustment (or recovery) would
    be made by decreasing payments to which another
    person who is without fault is entitled as
    provided in subsection (b)(4), if such adjustment
    (or recovery) would defeat the purposes of Title
    II or Title XVIII or would be against equity and
    good conscience. Adjustment or recovery of an
    incorrect payment (or only such part of an
    incorrect payment as the Secretary determines to
    be inconsistent with the

78
The Law 42 U.S.C. 1395gg(c) (Cont.)
  • purposes of this Title) against an individual
    who is without fault shall be deemed to be
    against equity and good conscience if (A) the
    incorrect payment was made for expenses incurred
    for items or services for which payment may not
    be made under this Title by reason of the
    provisions of paragraph (1) or (9) of section
    1862(a) and (B) if the Secretarys determination
    that such payment was incorrect was made
    subsequent to the third year following the year
    in which notice of such payment was sent to such
    individual except that the Secretary may reduce
    such three-year period to not less than one year
    if he finds such reduction is consistent with the
    objectives of this Title. (citations omitted)

79
Carriers/Intermediaries Always Believe You are at
Fault
  • The law prescribes special rules when an
    overpayment is discovered (i.e., it is determined
    that a payment was incorrect) subsequent to the
    third calendar year after the year in which it
    was made. Under these rules, deem an overpaid
    physician without fault without further
    development in the absence of evidence to the
    contrary, i.e., if there is no indication that
    the physician was at fault. Where the
    beneficiary was liable, HCFA waives recovery from
    the beneficiary if he was without fault.

80
Carriers/Intermediaries Always Believe You are at
Fault (Cont.)
  • (This provision provides limited relief to
    physicians since, in most cases, the facts which
    bring to light the overpayment are sufficient
    basis for determining whether the physician was
    at fault.) Do not deem a physician without fault
    under this provision with respect to overpayments
    for noncovered services which are part of a
    pattern of billing for similar services. In such
    cases, initiate necessary development to
    establish whether the physician was without
    fault. Medicare Carriers Manual Section 7106.

81
Limitation on Reopening Claims
  • Both the Medicare Intermediary Manual and the
    Carriers Manual indicate that claims may only be
    reopened after 48 months when there is evidence
    of fraud or similar fault.
  • Fraud or similar fault requires some
    intentional wrongdoing.

82
Fraud or Similar Fault
  • Deception by a person who knows that the
    deception may result in authorized benefits to
    someone
  • An act which approximates fraud, i.e., the
    furnishing of information which the individual
    knows is incorrect or incomplete, or the
    deliberate concealment of information, with or
    without a judicial finding of fraud
  • A pattern of program abuse by physicians or
    suppliers resulting from practices that are
    inconsistent with accepted sound fiscal,
    business, or medical practice, such as

83
Fraud or Similar Fault (Cont.)
  • The furnishing of services that are in excess of
    the individuals needs, or of a quality that does
    not meet professionally recognized standards of
    health care or
  • The submittal of incorrect, incomplete or
    misleading information that results in payment
    for services
  • That were not furnished
  • More expensive than those furnished or
  • That were not furnished under the conditions
    indicated on the bill.

84
Fraud or Similar Fault (Cont.)
  • The submittal of, or causing the submittal of,
    bills or requests for payment containing charges
    for Medicare patients that are substantially in
    excess of the amounts the physician or supplier
    customarily charges
  • An act or pattern of program abuse involving
    collusion between the supplier and the recipient
    that results in higher costs or charges to the
    Medicare program or
  • Any act that constitutes fraud under Federal or
    State law.

85
Fraud or Similar Fault (Cont.)
  • A Determination that Fraud or Similar Fault is
    present depends on the facts. For example, a
    claim may be reopened more than 4 years after
    payment was approved, if the evidence establishes
    a pattern of billing by a physician for weekly
    routine visits to patients in a nursing home for
    whom, under established standards of good medical
    practice, not more than one visit a month is
    medically reasonable and necessary.
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