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Improper Billing and Testing Results in Fines and Jail Time for Providers

Improper billing and testing can result in fines and jail time.  The government is taking a very aggressive stance.  Providers beware!

Most providers aren’t even aware that they may be guilty of improper billing.  Many times providers appear before the courts and say they didn’t know.  Unfortunately, they soon learn that ignorance is not a defense.

Two recent cases underscore the importance of making sure the provider listed on the claim submission form is the same provider that performed the services, and the same one who documents and signs the medical note.

April was a busy month for the U.S. Department of Justice (DOJ). Two settlements highlight the notion that the U.S. government has a low tolerance for providers who defraud its programs such as Medicare, Medicaid, TRICARE, and the Federal Employee Health Benefits Program (FEHB).

Garrett Okubo (Honolulu) 

According to the DOJ, Garrett Okubo, the owner and operator of a physical therapy business in Honolulu, submitted claims for physical therapy services between January 2011 and October 2017 for payment from Medicare, Medicaid, TRICARE, and the Hawaii Medical Service Association. Okubo, in violation of 18 USC § 1347, executed a scheme by “falsely stating that Okubo himself had personally provided the physical therapy services to his patients, when in reality the services were provided by Okubo’s unlicensed staff members, including at times when Okubo was traveling on the U.S. mainland or in a foreign country.”

Although Okubo is not a physician, the issues raised in his case, which resulted in both monetary penalties and jail time, parallel those of improper billing of non-physician providers (NPPs) such as physician assistants, nurse practitioners, and clinical nurse specialists.

In general, Title 42 must be consulted regarding the scope of the reimbursement. If a nurse practitioner, for example, is billing under their own Medicare provider number, then the reimbursement by Medicare is 85 percent of the Medicare Physician Fee Schedule. It is also imperative to read the respective state law in order to ascertain the scope of practice, licensure requirements and level of supervision.

Biotheranostics, Inc. (San Diego)

According to the Acting Assistant Attorney General of the DOJ’s Civil Division, “laboratories that knowingly submit claims for non-reimbursable services will be held accountable.”

On April 19, Biotheranostics, Inc. agreed to pay $2 million to resolve allegations that it both submitted and caused to be submitted Breast Cancer Index (BCI) tests for Medicare reimbursement. These tests were not “reasonable and necessary” and, therefore, failed to meet the medical necessity standard.

The Medicare statute expressly states that laboratory tests may be reimbursed by Medicare only if they are “reasonable and necessary for the diagnosis or treatment of a patient’ illness or injury.” Relying on evidence-based medicine standards, the DOJ determined that the BCI test was being performed on breast cancer patients who neither had been in remission for five years nor had been taking tamoxifen. Therefore, substantiating that a number of claims that were submitted for Medicare payment were unauthorized and unnecessary.

The take-a-ways for physicians are as follows:

  • Make sure that NPPs are billing in the appropriate manner in conjunction with state and federal law and that the definition of “supervision” in a respective state is understood;
  • The person’s name on the claim’s submission form needs to be the one performing the service and indicated in the medical records;
  • Ensure that the diagnostic tests or treatment being order is substantiated by medical necessity; and
  • Failing to be compliant can and often does result in False Claims Act cases, which can carry both civil and criminal penalties.

 

By: Rachel V. Rose, JD, MBA. 
Rose is an attorney who represents and advises both corporate clients and individuals on healthcare, cybersecurity, securities, False Claims Act and Dodd-Frank causes of action.  She is also a Principal at Rachel V. Rose – Attorney at Law, PLLC, who also teaches bioethics at Baylor College of Medicine.

MEDICARE TO STOP USING SOCIAL SECURITY NUMBERS

MBI

Medicare MBIMEDICARE SAYS NO MORE SOCIAL SECURITY NUMBERS

Medicare has announced they will stop using Social Security numbers for identification beginning April 2018.  The change is required by a law enacted two years ago to discourage identity theft.

The Centers for Medicare & Medicaid Services (CMS) recently updated its web page to help health care providers prepare for the change.  Medicare plans to begin mailing the new cards with unique Medicare Beneficiary Identifiers (MBI) to each person.  According to the Medicare website, the agency is just now trying to figure out the best way to mail the cards.  They plan a “wide-scale outreach” to let beneficiaries know that they need to bring their new Medicare cards when they receive medical care.

WHAT THIS MEANS FOR YOU

Don’t expect CMS to reach every one of your patients and don’t count on the patients to remember to bring their new card to their appointment.  Start getting the word out to your patients now.  Let you patients know that they will be getting new cards.  Let them know that they must bring this card into your office.  Include this information on your website and in your newsletter. Prepare handouts and fliers that you can leave in your waiting room and at the front desk.  Be ready to remind your patients to bring their new Medicare cards at the time of service.

Update the patient registration information with the MBI number as soon as patients present with their new card.  It is best to scan the new Medicare card into the practice management system.  Scanning all insurance cards is a good practice since it allows the billing team to easily access the information and correct or update, as necessary.

WHAT CAN THE BILLING AND COLLECTION TEAM DO?

Now is the time to make sure that the practice management software can accept the new 11 digit alpha numeric MBI.  Whether you outsource your billing and collections or have an in-house team it is imperative to make sure they are prepared to file claims with this new number.

Your billing and collections team can also participate in notifying your Medicare patients about the new cards.  Every interaction with a Medicare beneficiary is a chance to remind them about the upcoming change and what they need to do.

As part of Onpoint Medical Solutions due diligence, the practice management software has already been tested.  The software can accept the MBI, claims are accurately populated and can be submitted.  Make sure your billing and collections team has done their due diligence, as well.

DON’T DELAY

CMS has indicated there will be a transition period through 2019.  A knee jerk reaction is to think it is way too early and you will worry about that later.  However, you don’t want to wait until the last minute.  If you postpone this will become a daunting task.  Contacting all of your Medicare patients will require some time.  Failure to update and utilize the MBI will ultimately result in claim rejections and delayed payments.