Breaking Compliance News Blog

MPA scours OIG and OCR enforcement updates and news so that you don't have to.

Every month, we summarize enforcement trends and bring you the latest compliance and HIPAA developments, and deliver them to your inbox in our Monthly Compliance News Report.

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You can read a sample report here.

Ladies and gentlemen, long-anticipated compliance program requirements are changing, one more time. Let’s take a look at what has changed – and what hasn’t.

The proposed rule

On July 16, 2019, CMS published a proposed rule that would modify multiple aspects of Phase III of the Long-Term Care Facilities Requirements for Participation (the “Proposed Rule”). The goal of the Proposed Rule is to reduce regulatory burdens and costs, allowing nursing homes to focus resources on providing quality resident care. Some of the most discussed proposed amendments are those to the Compliance and Ethics Program requirements (42 CFR 483.85), which, if finalized, will become effective one year later. With comments from the public due September 16, 2019, our best guess is that enforcement will begin October or November 2020.

Good news: fewer compliance-related F-tags ahead

Nursing homes: LeadingAge (and other associations) successfully lobbied on your behalf. 

In March 2018, the OIG issued Report A-05-14-00041, Many Medicare Claim for Outpatient Physical Therapy Services Did Not Comply with Medicare Requirements. 

The OIG reviewed 300 random Medicare outpatient PT claims for services provided between July and December of 2013.

Based on its review, the OIG found:

• 61% of outpatient Medicare PT services did not comply with Medicare requirements.
• Medicare paid an estimated $367 million for these services.

The OIG identified three types of claims errors: medical necessity, coding, and documentation. Here is a breakdown of the errors by type:

Medical Necessity Errors (91 claims out of 300)

• 98%: Services not reasonable
• 33%: Services not effective
• 31%: Services did not require the skills of a therapist
• 29%: No expectation of significant improvement

Coding Errors (145 claims)

• 59%: Timed units claimed did not match units in treatment notes
• 54%: Missing modifiers
• 41%: Incorrect codes

Documentation Errors (112 claims)

• 71%: Plan-of-care deficiencies
• 66%: Treatment note deficiencies
• 8%:  Recertification deficiencies

Providers of outpatient physical therapy can expect increased claims monitoring by CMS, as well as more education from CMS.

Same song different tune?

 While this review focused on outpatient physical therapy provided in an office setting, the OIG has similar concerns about therapy provided in nursing homes.  A 2012 OIG report found errors involving coding, medical necessity, and documentation in SNFs.

In November 2012, the OIG released a report: Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More than a Billion Dollars in 2009.    

The OIG found that 25% of all SNF Medicare claims were erroneous. The errors included:

• 20.3%: Claims with an inaccurate RUG (upcoded). In 57% of these claims, SNFs provided more therapy on the MDS than was documented in the medical record; and 25% of these claims involved therapy listed in the medical record that was not reasonable and necessary
• 2.5%: Claims with an inaccurate RUG (downcoded)
• 2.1%: Claims that did not meet Medicare coverage requirements (e.g. no physician order)

The OIG also found that 47% of claims involved inaccurate MDS information. The primary reporting error was the amount of therapy received or needed, followed by special care, ADLs, oral/nutrition status, and skin conditions/treatment.

What you can do

The takeaway here is: whether you are providing outpatient therapy, skilled nursing therapy – or another Medicare service involving therapy – medical necessity, documentation and coding errors remain common errors of OIG concern. Incorporating these items into your regular compliance audits will help you find and correct errors internally and improve claims accuracy.

At the HCCA Compliance Institute held in Las Vegas April 15-18, Keynote Speaker and HHS Inspector General Dan Levinson announced the OIG's new Compliance Resources Portal.

Now, compliance officers can find all of the OIG’s compliance resources on one page.

The resources include:

1. Toolkits
2. Provider Compliance Resources and Training*
3. Advisory Opinions
4. Voluntary Compliance and Exclusions Resources
5. Special Fraud Alerts, Other Guidance, and Safe Harbor Regulations
6. Resources for Health Care Boards
7. Resources for Physicians
8. Accountable Care Organizations

 * Compliance Program Guidance is housed here.

 Soon, the OIG will be posting a new resource: the OIG Toolkit to Identify Patients at Risk of Opioid misuse.

 If you are looking for criminal, civil or state enforcement actions, civil monetary penalties, exclusions or corporate integrity agreement enforcement, those update are still located under the Fraud tab.