Healthcare Law Blog

ON THE ENFORCEMENT RADAR: THE 2012 OIG WORK PLAN

The Office of Inspector General of the United States Department of Health and Human Services (OIG) released its Work Plan for fiscal year 2012.  At the beginning of each fiscal year, the OIG issues its annual Work Plan, which describes current audit, enforcement and evaluation activities and those the agency plans to initiate in the upcoming year.  The Work Plan also provides a general view of the OIG’s investigative, enforcement and compliance activities.  Basically, the Work Plan informs health care providers what is on the OIG’s enforcement radar in the coming year.  Physicians should know what areas that the OIG is concerned about and review their own practices to ensure compliance with regulatory requirements.  The following are some of the highlights from the FY 2012 Work Plan.

• Physicians and Suppliers: Compliance with Assignment Rules

The OIG will review the extent to which providers comply with assignment rules and determine to what extent beneficiaries are inappropriately billed in excess of amount allowed by Medicare.  Physicians participating in the Medicare program agree to accept payment on an assignment for all items and services furnished to individuals enrolled in Medicare.  Medicare considers the assignment as a written agreement between beneficiaries and their providers.  By accepting assignment of their right to be reimbursed for services, providers agree not to bill beneficiaries for services and accept the amount Medicare pays.  In other words, the provider accepts the amount Medicare pays as the full reimbursement.  This means that providers may not bill beneficiaries in excess of the Medicare payment.  Physicians can bill beneficiaries for the co-pay. Physicians should check their billing practices to assure that no balance billing is made for Medicare patients.

• Physician Billing for Incident-To Services

The OIG plans to review physician billing for “incident-to” services to determine whether payment for such services had a higher error rate than that for non-incident-to services. Medicare Part B pays for certain services billed by physicians that are performed by non-physicians incident to a physician office visit.  A 2009 OIG review found that when Medicare reviewed physicians’ billings for more than 24 hours of services in a day, half of the services Medicare Part B paid claims for were not performed by a physician. Medicare found that 21% of those services not performed by physicians were performed by unqualified personnel.  The OIG believes that improper use of incident-to services can result in over-utilization and expose Medicare beneficiaries to care that does not meet professional standards of quality.  Physicians should be aware that if they are billing for incident-to services that those services must be performed with the required level of supervision by proper personnel.

• Physicians’ Place of Service Errors

The OIG will review physicians’ coding on Medicare Part B claims for services performed in ambulatory surgical centers and hospital outpatient departments to determine if  the claims were properly coded for place of service.  Federal regulations provide for different levels of payments to physicians depending on wehre services are performed.  Medicare pays a physician a higher amount when a service is performed in a nonfacility setting, such as a physician’s office, than it does when the service is performed in a hospital outpatient department or in an ambulatory surgical center.  Physicians should be mindful that coding is proper when the place of service is different than the office.

• Medicare Requirements for Quality Care in Skilled Nursing Facilities

The OIG plans to review how skilled nursing facilities have addressed certain legal requirements related to quality of care.  Specifically, the OIG intends to examine the extent to which skilled nursing facilities developed plans of care based on assessments of beneficiaries, provided services to beneficiaries in accordance with plans of care, and planned for beneficiaries’ discharge.  The OIG will also review skilled nursing facilities’ use of the required Resident Assessment Instrument to develop nursing home residents’ plans of care.

• Place-of-Service Errors

The OIG plans to review physician coding of place of service on Medicare Part B claims for services performed in ambulatory surgical centers and hospital out-patient departments.  Medicare regulations provide for different levels of payments to physicians depending on the location where the services were performed, with Medicare paying a higher amount when a service is performed in a non-clinical setting, such as a physician’s office, than when a service is performed in a hospital out-patient department or, with certain exceptions, in an ambulatory surgical center.

• Coding of Evaluation and Management Services

The OIG plans to review evaluation and management (E & M) claims to identify trends in the coding of these services and to ensure that providers providing these services submit codes that accurately reflect the services provided.  The OIG is focusing on 2009 claims as it found that Medicare $32 billion for E & M services, representing 19% of all Medicare Part B payments. As always, physicians should be diligent in their coding and documentation so that documentation supports the level of type of visit performed.  This is an area that will be on the OIG’s radar screen for years to come as well.

Physicians should be mindful of these areas of concern as outlined in the  2012 Work Plan and be prepared for potential audits and other enforcement activities in the coming year.  A complete copy of the OIG FY 2012 Work Plan can be downloaded from the OIG website at www.oig.hhs.gov and clicking on the link to publications.

Lisa English Hinkle is a Member of McBrayer law.  Ms. Hinkle concentrates her practice area in healthcare law and is located in the firm’s Lexington office.  She can be reached at lhinkle@mcbrayerfirm.com or at (859) 231-8780, ext. 1256. 

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This article does not constitute legal advice.