Hold on Tight – 2010 Could be Rough. . .

February 27, 2010 by  
Filed under Featured, HEAT Enforcement

(February 27, 2010): The number of auditors, reviewers, investigators and prosecutors going after CMHCs is increasing and signals an alarming, unprecedented effort by the government to uncover and recover alleged overpayments for partial hospitalization claims.

 CMHCs now face not only simple repayment demands, but also civil False Claims Act cases and criminal Medicare / Medicaid fraud claims identified by various new government contractors. Regrettably, we have seen unintentional mistakes, incomplete documentation and technical errors cited as the basis for seeking the repayment of millions of dollars, representing Medicare services rendered long ago, in some cases as many years before the demand letter was sent.  Perhaps most troubling is the fact that no one, including the ZPIC and / or PSC conducting the medical review, doubts that the medical services were rendered and in most cases, the Medicare beneficiary benefited from the partial hospitalization care and treatment provided.  Today, every health care provider, including CMHCs, must beware of:

  •  “RACs” or Recovery Audit Contractors.
  • “ZPICs” or Zone Program Integrity Contractors.
  • “MICs” Medicaid Integrity Contractors.
  • “MCFU” Medicaid Fraud Control Unit.
  • “HHS-OIG” Department of Health and Human Services, Office of Inspector General.
  • “DOJ” U.S. Department of Justice, and
  • “HEAT” Healthcare Fraud Prevention & Enforcement Task Force (in a number of U.S. Attorney’s Offices around the country).

 RACs and the havoc they are expected to wreak is old news, quite frankly.  Thankfully, they appear to be focused on the larger players at this point.  The newest players in town, ZPICs, MICs and HEAT Teams should be at the top of your current list of concerns.  As you will recall,   CMS consolidated functions of all Program Safeguard Contractors (PSCs) and Medicare Prescription Drug Integrity Control (MEDIC) contracts into ZPIC contracts.  ZPICs are designed to combine claims data (FIs, Regional Home Health Intermediary, Carrier, DMERC) and other data to create a platform for documenting complex data analysis.  While RACs (until recently) have focused solely on recovering money, ZIPCs also look for fraud.

MICs are just now revving up around the country.  Unburdened by many of the restrictions placed on RACs, CMHCs with a heavy Medicaid beneficiary base should diligently review their Medicaid coding and billing efforts to better ensure compliance with applicable statutory and regulatory requirements. 

 HEAT Teams are made up of top level law enforcement and professional staff from DOJ and HHS.  HEAT was implemented to prevent fraud and enforce current anti-fraud laws and prevent waste that focuses on improving data and information sharing between the Center for Medicare & Medicaid Services and law enforcement agencies.  HEAT is working to strengthen program integrity activities to monitor and ensure compliance and enforcement.  HEAT’s tools to identify fraud include hotlines and web sites for healthcare workers and ordinary citizens.  Furthermore, HEAT officials are helping state Medicaid officials conduct better audits and provide better monitoring to detect fraudulent activities.

How should you respond?  The best response is to follow the rules.  If you don’t already have an effective Compliance Plan in place, we recommend you take steps to immediately implement one. 

Should you have any questions regarding these changes, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

The U.S. Sentencing Commission has issued proposed changes that may significantly impact compliance plans and compliance professionals.

February 21, 2010 by  
Filed under Compliance, Featured

(February 21, 2010): An effective Compliance Plan can greatly reduce the likelihood that your Community Mental Health Center (CMHC) will find itself in violation of criminal statutory and regulatory requirements.  Should a violation still occur, Federal Sentencing Guidelines have long credited an organization’s efforts to comply with the law.  Notably, on February 9, 2010, the U.S. Sentencing Commission announced that a number of changes to the Federal Sentencing Guidelines has been proposed, at least one of which should be of considerable interest to your CMHCs Compliance Officer and other members of its mangement team.  The provisions of  §8B2.1 of the Federal Sentencing Guidelines (Effective Compliance and Ethics Program) are generally regarded as the model from which effective compliance plans are based for corporations.

The proposed amendments make several understated but important changes to the structure of an “effective compliance plan.”  In particular, they focus on the increasingly important role document retention policies must play in an organization’s compliance program.  Specifically, after criminal conduct has been detected:

  • A CMHC must respond appropriately to the criminal conduct, including providing to the restitution to any vicitims (which would include repayments to the Medicare program),  self-report the violation and cooperate with authorities. 
  • The CMHC must assess its program and modify it to make the program more effective.  The use of an independent monitor to ensure implementation of these changes would be encouraged. 

In addition, as part of periodic compliance plan review, the provider should make sure (in writing) that all employees are aware of the organization’s document retention policies, and that such policies correspond to the goals of an effective compliance plan.

Dangling a carrot in front of companies for proper compliance, the proposed guidelines raise the issue of whether an organization should receive credit for an Effective Compliance plan even when Senior Executives are involved in and offense, where (1) the Compliance Officer has a direct reporting relationship to the Board of Directors (or Board Committee), (2) the Compliance Program successfully detected the offense before it was uncovered outside of the organization, and (3) the organization promptly reported the violation to the appropriate authorities.

The Sentencing Commission’s other proposals are out for comment until March 22, 2010.  A public hearing on the proposals is scheduled for March 18, 2010. The Sentencing Commission will then vote in April on whether to send any amendments to Congress. If it does, the amendments would become effective November 1, 2010, unless Congress takes action to prevent the amendements from taking effect. 

Notably, these proposed changes further highlight the issue of “self-disclosure.”  The determination of whether or not to self-disclose a potentially criminal violation can be quite complicated.  CMHCs desiring to self-disclose should consult their legal counsel prior to taking such a step.    

Should you have any questions regarding these changes, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.


Ever Wonder Why so Many CMHCs are Being Audited by the Government?

February 17, 2010 by  
Filed under False Claims Act, Featured, Medicare Audits

 (February 17, 2010): HHS-OIG has alleged that $1.44 billion in “savings” could be achieved by ensuring the appropriateness of Medicare payments for partial hospitalization services.

The last few years have been tough for Community Mental Health Centers (CMHCs) around the country.  Many CMHCs have found themselves the subject of Medicare post-payment audits by Program SafeGuard Contractors and / or Zone Program Integrity  Contractors (ZPICs).  Others have been placed on pre-payment review by PSCs, effectively cutting-off Medicare reimbursement until the contractors could decide if their claims for partial hospitalization program (PHP) services qualify for coverage and payment.  Some areas, such as South Florida and Louisiana have been hit especially hard.

Many of our CMHC clients have asked – “Why us, all we are trying to do is take care of a population who has no where else to turn?”  One reason may be because the government appears to believe that Medicare is being improperly billed for partial hospitalization services – to the tune of $1.44 billion.

For the third straight year in a row (2007, 2008 and 2009), the Department of Health and Human Services, Office of Inspector General (HHS-OIG) has reported that it found that Medicare has improperly paid for inappropriate outpatient mental health services.  According to HHS-OIG, “[b]illing abuses involving beneficiaries who are unable to benefit from psychotherapy demonstrate a special need for enhanced program and beneficiary protections.”  Furthermore, HHS-OIG indicated that beneficiaries with mental illness sometimes do not receive all the services that they need, so both underutilization and overutilization problems exist.

HHS-OIG is pointing its finger specifically at providers of partial hospitalization services.  HHS-OIG doesn’t hesitate to allege that partial hospitalization services, which may be provided by both hospitals and community mental health centers, “have been particularly vulnerable to payment errors.” According to the HHS-OIG, “[w]e have estimated that Medicare payment error rates for partial hospitalization in community mental health centers were as high as 92 percent.” In its 2009 “Compendium of Unimplemented Office of Inspector General Recommendations,” HHS-OIG noted that in 2003, miscoded and undocumented services accounted for 26% and 19%, respectively of all Medicare mental health services.  Finally, medically unnecessary services and services that violated the “incident to” rule each accounted for 4% of all Medicare mental health services in 2003.  The “incident to” rule allows a physician to bill for mental health services performed by his or her staff if the services are rendered incident to the physician’s professional services.

Based on the foregoing, HHS-OIG recommends that the Centers for Medicare & Medicaid Services (CMS) ensure that mental health services are medically necessary and reasonable; are accurately billed and are ordered by authorized practitioner by using a comprehensive program of targeted medical reviews, provider education, improved documentation requirements, and increased surveillance.  This, according to HHS-OIG, will result in a savings of $1.44 billion.

While CMS agreed with the HHS-OIG’s findings and recommendations, HHS-OIG declared that there are still significant unallowable payments.  As HHS-OIG stated, “[w]e believe that CMS still needs to monitor partial hospitalization services provided by community mental health centers, which we consider particularly vulnerable.”  As a result, HHS-OIG indicated that it will continue to monitor CMS’s efforts to ensure that mental health services are medically necessary and reasonable and are accurately billed.

Should you have any questions regarding these changes, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.

Expansion of Medicare’s “HEAT” Strike Force

February 1, 2010 by  
Filed under HEAT Enforcement, Medicare Audits

(February 1, 2010):  On December 15, 2009 Assistant Attorney General Lanny A. Breuer of the Criminal Division of the Department of Justice (DOJ) and United States Department of Health and Human Services (HHS) Secretary Kathleen Sebelius announced the expansion of Medicare Fraud Strike Force teams to Baton Rouge, Brooklyn and Tampa in a effort to target individuals and health care companies that fraudulently bill the Medicare program.

The joint DOJ-HHS Medicare Fraud Strike Force is a multi-agency team of federal, state and local investigators designed to combat Medicare fraud through the use of Medicare data analysis techniques and an increased focus on community policing.  After expanding to Baton Rouge, Tampa and Brooklyn, Strike Force Fraud Strike Force will be operating in a total of seven cities in the United States: Miami, Los Angeles, Detroit, Houston, Brooklyn, Tampa and Baton Rouge.

The Strike Force started in March 2007 in Miami (Phase One), Los Angeles (Phase Two), Detroit (Phase Three), Houston (Phase Four), and Brooklyn (Phase Five).  Since that time, the Strike Force has obtained indictments of more than 460 individuals and organizations that collectively have falsely billed the Medicare program for more than one billion dollars.

During the press conference related to the expansion to the three cities, DOJ also publicized five indictments that were unsealed on December 15, 2009 in Miami, Detroit and Brooklyn, following the arrests of twenty-five individuals in Miami, four individuals in Detroit and one in Brooklyn. In addition, Strike Force agents also executed four search warrants at businesses and homes in Coconut Creek, Fla.; Miami and Brooklyn.

The DOJ press announcement also noted that individuals charged in the indictments that were unsealed were accused of various Medicare fraud crimes, including conspiracy to defraud the Medicare program, conspiracy to launder money, money laundering, criminal false claims, making false statements and receiving kickbacks.

According to the DOJ indictments, the defendants participated in schemes to submit claims to Medicare for products and services that were in fact medically unnecessary and oftentimes, never provided. In the Detroit cases, DOJ alleged that the defendants participated in a scheme whereby they paid pay kickbacks to patients who received instructions from the clinic owners and patient recruiters to feign symptoms to justify expensive testing, including nerve conduction studies. In Brooklyn, the two defendants are alleged to have billed Medicare for durable medical equipment, including expensive shoe inserts reserved for diabetes patients, when in fact much cheaper and over-the-counter shoe inserts were provided to beneficiaries who often didn’t need them. In Miami, 15 individuals, including doctors and nurses, are charged in connection with fraudulent claims to Medicare for home health services. In another case in Miami, individuals are charged for their various roles in running a medical clinic that purported to provide injection and infusion treatments to HIV/AIDS patients and submitted fraudulent claims Medicare for such services, which were often medically unnecessary and/or never provided.

Collectively, the DOJ announced that the physicians, company owners, executives and others charged in the indictments are accused of conspiring to submit approximately $61 million in false claims to the Medicare program.

Should you have any questions regarding these changes, don’t hesitate to contact us.  For a complementary consultation, you may call Robert W. Liles or one of our other attorneys at 1 (800) 475-1906.