Investigations, Prosecutions of Doctors Could Increase Under Health Reform

Attorney Robert Saner has found one of the few things Republicans and Democrats in Washington agree on: Medicare costs are skyrocketing, in part because of fraud and waste perpetrated by healthcare providers, and CMS needed vast new powers to investigate and penalize violators.

That’s why for all the debate generated by the health reform law that passed in March, none of it surrounded the expanded authority granted to CMS. So politically uncontroversial are the CMS’s new powers, in fact, that one (relatively minor) power that was left out of the health reform law was introduced separately in the House of Representatives on Sept. 15 and passed only a week later. “The average bill that’s introduced in the House is never passed at all,” Saner, the MGMA’s Washington counsel for more than 30 years, told attendees of the association’s annual convention Tuesday.

But getting rid of fraud in Medicare is “completely bipartisan,” he said. “If Tea Partiers sweep the midterm elections, take over Congress, and make good on their threats to repeal health reform, the one component they’d keep would be the fraud and abuse provisions.”

How will the new provisions affect your practice? You should schedule a meeting with your attorney to brief you on the specifics; the application of many provisions is still being worked out via CMS’s rule-making process. Meanwhile, here are a few of the highlights:

Enrollment and re-enrollment of providers. CMS is working on heightened scrutiny of new providers and practices enrolling in Medicare. It has proposed creating three levels of review, depending on the nature of the practice, with those in sectors that have been most prone to fraud (home health providers, for example) receiving the highest level of scrutiny. Physicians in traditional practices would most likely find themselves in the lowest level of scrutiny. Still, new enrollees of any type could find themselves subject to various new screening measures for as long as a year after signing up.

Billing. CMS is expected to crack down on practices’ failure to promptly return overpayments. Although practices have always been required to return monies they were not owed, new language clarifies that you have 60 days from the moment you become aware of the overpayment to return it. It also introduces heavy new fines and possible penalties for a failure to do so, regardless of whose fault the overpayment was. “I would take a look at what your credit-balance report is showing and how you’re working those,” Saner advised. Other billing-related rules abound, too, such as one that will require practices to include their physician’s National Provider Identifier number on every claim.

Access to records. You’ve always been required to supply CMS with access to your records when it asks. But now, your failure to do so in a “timely” manner could trigger a penalty of $15,000 a day. Saner cautions practices to review their protocols for responding to record requests now, and make sure you follow them.

Self-referral and anti-kickback laws. There are some new rules governing referral to imaging services that fall under the Stark self-referral law. And some new language for the federal anti-kickback law, which has long prevented doctors from being paid for referrals, will make prosecutions easier and penalties harsher.

Suspensions of payment. If CMS receives a “credible allegation” of fraud against you - and it is adding new whistleblower programs and expanding others - it can suspend all payments to you while it investigates. That could devastate certain practices, yet CMS has "that authority, and my guess is they’ll look for a few test cases to use it,” Saner said. “All it takes is a few to send a message.”

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