Medicare and Medicaid Audits of Psychologists and Other Mental Health Professionals – Part 2

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Over the past year I have observed an increasing number of Medicare and Medicaid audits being initiated against psychologists and other mental health professionals.

I have recently seen a number of audits initiated against psychologists and mental health professionals who treat assisted living facility (ALF) and skilled nursing facility (SNF) residents. Most often these are audits by the Medicare Administrative Contractor (MAC), because this area of medical practice has been identified as one fraught with fraud and abuse. Sometimes these are only “probe” audits, initial audits requesting one (1) to five (5) medical records. Other times the MAC has been requesting anywhere from 120 to 375 records.

This blog is party two in my series on Medicare and Medicaid audits initiated against psychologist and other mental health professionals. Click here to see part one.

Areas Being Targeted.

In state Medicaid audits, I have recently seen increased scrutiny in the following areas:

1. Pediatric care
2. Therapy (speech therapy, physical therapy, occupational therapy) especially to pediatric patients and developmentally disabled patients.
3. Small assisted living facilities (ALFs), group homes, homes for the developmentally disabled (DD) and other small facilities.
4. Home health agencies.
5. Pediatric dentistry.
6. Optometry care, especially if delivered in a nursing home or assisted living facility (ALF).
7. Ambulance and medical transportation services, especially of nursing homes.

8. Psychiatric psychological and mental health.

Use of Statistical Sampling and Extrapolation Formulas to Multiply Repayment Amounts.

In both state Medicaid audits and in Medicare audits, I have experience increased reliance by the auditing agency on use of mathematical extrapolation formulas to estimate the amount that should be repaid. The formula used usually takes the overpayment that has actually been found and, based on several factors, multiplies it out to many times the actual overpayment amount. Thus, a found overpayment of $2,800 may become a demand for repayment of $280,000, based on the statistical extrapolation.

Things you should know about this are as follows.

1. Neither the Medicare program nor the state Medicaid programs should use an extrapolation formula, unless:

     a. There is a “high” error rate in the claims that have been submitted; or 

b. There have been prior educational efforts or prior audits of the provider, and the      provider has failed to correct the problems in claims submission previously found.

2. The states each have different guidelines, rules or regulations on when they will apply the statistical formula. Some do not use it. Some use a higher percentage error rate to prompt use of the formula and some lower. North Carolina is one of the lowest we have encountered; an error rate of more than five percent (5%) will prompt its Medicaid agency to apply the statistical extrapolation to the recovery amount.

Problems Psychologists and Mental Health Professionals May Encounter Producing Records for Audits.

Many psychologists, therapists and health professionals are being audited because they are treating patients in a nursing facility or assisted living facility.

In most cases, a history, physical, comprehensive assessment, physician orders, diagnosis, medication list, medication administration records, consultations, social service notes and other medial documents being relied upon by the therapist are reviewed and assessed in connection with treatment of the patient. The big problem here is that these usually stay in the facility. When an audit occurs, these may not all be available.

The biggest issue that Medicare and Medicaid seem to be targeting is lack of documented “medical necessity.” The auditors take the position that the audited therapist must produce copies of the documents listed above, in part, to show “medical necessity” for the services provided.

Additionally, most physicians who treat patients in nursing facilities place their own assessments, plans and notes into the facility’s chart and do not retain a copy themselves. When the audit comes, they may not be able to produce copies of their own notes and evaluations.

I recommend that any provider treating residents of nursing homes and assisted living facilties (ALFs):

1. Review the local coverage decision (LCD) applicable to the code(s) you bill so you know what requirements must be met and what documentation is required.
2. Review the Medicaid provider handbook or state regulations for the services you provide if you are a Medicaid provider.
3. Obtain and keep copies of all applicable histories, physicals, care plans, physician orders, physician consults, etc. This is best done by obtaining and using a portable scanner. You can then keep the copies electronically in a properly secured, protected server in your office (backed-up, off site, of course).
4. Sign all of your evaluations, prepare your reports, evaluations progress notes and consultations on your laptop or other computer and sign it electronically before you print it out. Alternatively, if you still use paper, scan the paper copy (after signed) and maintain it electronically.
5. Do not use unusual or non-standard terms and abbreviations. If you do, you must keep an “abbreviations and definitions” list and produce it with your records in any audit response.
6. In your reports, evaluations and notes, use the terminology from the LCD and Medicaid provider handbook. Also, always include the start time, stop time and total time spent with any resident in your report, evaluation and notes.
7. Be sure the patient, patient’s next of kin/surrogate, patient’s physician or nursing home administrator signs off as having received the services each time. The patient’s signature is preferred.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Healthcare Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today.  Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Dentists: Tightened Controls on Prescribing to Medicare Part D Patients Could Affect Your Practice

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Starting June 1, 2015, Medicare Part D will no longer reimburse patients or pharmacies for prescriptions unless the dentist opts in and enrolls in Medicare, or opts out and enters into a private contract with the patient. This measure is part of a rule finalized by the Centers for Medicare and Medicaid Services (CMS). The purpose of the rule is to assist CMS in cracking down on doctors, dentists and other health care providers that are improperly prescribing drugs to Medicare patients.

Medicare Part D plans provide supplemental optional coverage for prescription medication used in dentistry, are administered by private health plans and are paid for by way of premiums. As a dentist, if you have patients with Medicare Part D, you need to choose whether to enroll as a Medicare provider or to opt out. Click here to read the final rule from CMS.

Specifics of the New Rule.

Dentists have until June 2015 to either enroll in Medicare or formally opt out. When a dentist enrolls, the government verifies his or her professional license and credentials, and checks his or her criminal history. In addition, the final rule expands rewards and incentive programs focusing on participation in activities that promote improved health, efficient use of health-care resources and preventing injuries and illness.

One new stipulation is that the federal government has the authority to expel physicians from Medicare if found to be prescribing drugs in an abusive manner or in violation of Medicare rules. In addition, CMS will be able to terminate a dentist’s Medicare enrollment if his or her Drug Enforcement Administration (DEA) certification has been revoked, or if the state licensing board has stripped his or her authority to prescribe drugs.

To read more on how abusive prescribing patterns will be determined, click here.

Enrolling Versus Opting Out.

If you enroll in Medicare Part D as a treating provider, then you are going to be subject to increased oversight and regulations, including:

– Fraud investigations;
– The minimum patient record retention increases from four to five years;
– You must be careful when denying services to Medicare recipients;
– You can’t charge Medicare for missed appointments; and
– You may have a percentage of your Medicare reimbursement withheld beginning next year if you don’t have electronic health records (EHRs).

On the other hand, if you opt out of part of Medicare, then you opt out of other parts as well, which may lead to a loss in revenue and disgruntled patients.

Examine Your Practice and Make Your Own Decision.

Your decision to enroll in or opt out of Medicare should be determined by the types of patients you treat and the services you provide. If your practice consists of patients under the age of 65, you may be unaffected by this rule. However, if you practice in an area with an older population, Medicare coverage is more likely to be part of your practice. The important point is to understand how it may or may not affect your practice’s bottom line. If you need some guidance or have questions, call an attorney experienced in representing dentists.

Comments?

Will this final rule affect you? If so, how? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

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