Health Law Attorney Blog

Recently the OIG released the 7th of 11 videos that cover major health care fraud and abuse laws, the basics of health care compliance programs, and what to do when a compliance issue arises. The videos are from the Health Care Fraud Prevention and Enforcement Action Team (HEAT) Provider Compliance Training initiative.

Compliance Programs, simply stated, are a set of internal policies and procedures written and implemented within a health care provider that comply with the law. Effective compliance programs, (1) Enhance organizational performance, (2) Improve quality of care, and (3) Reduce overall cost. The OIG stresses that Compliance programs are way for providers to be proactive instead of reactive. They allow an organization to identify problems on the front-end and correct them before they become systemic and costly.

Compliance Program Guidances (CPGs) put out by the OIG, provide principles to follow when coming up with an effective compliance program that suits a provider's organizational needs. There are seven basic elements to an effective compliance program:

1.Written policies and procedures: have up-to-date policies and procedures and implement them as the organization grows and changes.

2.Designate a Compliance Professional: have a designated Compliance Officer to monitor changes in the law and keep your policies as up-to-date as possible.

3.Effective Training: educate employees about policies and procedures so they are better able to identify a problem, should the occasion arise.

4.Effective Communication: facilitate a way for employees to communicate with the designated compliance professional, such as an open door policy or comment box, as a way to report misconduct and prevent retaliation.

5.Internal Monitoring: conduct regular audits to identify a potential problem and correct it before it becomes costly.

6.Enforcing Standards: ensure effective enforcement of the compliance program within your organization by holding employees responsible for knowing compliance standards.

7.Response to Issues: promptly respond to issues by looking into the problem and taking steps to resolve it.

The HEAT "Compliance Basics" video gives organizations a better insight into what to put into an effective compliance program to be proactive in identifying problems and/or issues, and to resolve them before they become costly.

Continue reading "OIG Issues "Compliance Program Basics" HEAT Provider Compliance Training Video" »

The Office of Inspector General ("OIG") recently released a report entitled Questionable Billing Patterns of Portable X-Ray Suppliers ("Report") wherein it identified portable x-ray suppliers with billing patterns associated with inappropriate Medicare payments. As a result of its Report, the OIG made recommendations to the Centers for Medicare and Medicaid Services ("CMS") to account for inefficiencies in its reimbursement of portable x-ray suppliers.

Reimbursement for Portable X-Ray Services
By way of brief background, the conditions of participation for portable x-ray services, at 42 CFR 486.106, provides, in its entirety, the following:

§ 486.106 Condition for coverage: Referral for service and preservation of records.
All portable X-ray services performed for Medicare beneficiaries are ordered by a doctor of medicine or doctor of osteopathy and records are properly preserved.
(a) Standard--referral by a physician. Portable X-ray examinations are performed only on the order of a doctor of medicine or doctor of osteopathy licensed to practice in the State. The supplier's records show that:
(1) The X-ray test was ordered by a licensed doctor of medicine or doctor of osteopathy, and
(2) Such physician's written, signed order specifies the reason an X-ray test is required, the area of the body to be exposed, the number of radiographs to be obtained, and the views needed; it also includes a statement concerning the condition of the patient which indicates why portable X-ray services are necessary.
(b) Standard--records of examinations performed. The supplier makes for each patient a record of the date of the X-ray examination, the name of the patient, a description of the procedures ordered and performed, the referring physician, the operator(s) of the portable X-ray equipment who performed the examination, the physician to whom the radiograph was sent, and the date it was sent.
(c) Standard--preservation of records. Such reports are maintained for a period of at least 2 years, or for the period of time required by State law for such records (as distinguished from requirements as to the radiograph itself), whichever is longer.

Moreover, the Medicare Claims Processing Manual (Pub. 100-4, Ch. 13 Sec. 90) provides that Medicare reimburses portable suppliers separately for up to four (4) components of the portable x-ray services:

1. Transportation Component - Transporting the equipment to the beneficiary's location,
2. Setup Component - Setting up the equipment for use,
3. Technical Component - Administering the test, and
4. Professional Component - Interpreting the results.

According to the Report, "[e]ighty percent of the amount Medicare paid to portable suppliers in 2009 reimbursed them for transporting and setting up the x-ray equipment." When reimbursing for the Transportation Component, Medicare pays for the full Transportation Component once per each trip to a particular location. Therefore, if a supplier is furnishing x-ray services to three beneficiaries at one nursing home, on one trip, it will pay 1/3 of the Transportation Component for each beneficiary (totaling one full Transportation Component). On the other hand, if a supplier furnishes x-ray services to three beneficiaries at one nursing home on three separate trips, on the same day, Medicare will pay for the full Transportation Component for each return trip to a facility on a particular day.

Questionable Billing Patterns
In is evaluation, the OIG developed the following eight (8) characteristics that described questionable billing patterns:

1. Portable services ordered by nonphysicians
2. No recent contact between beneficiary and ordering provider
3. Same-day services in multiple settings
4. Billing for return trips
5. Portable x-rays per beneficiary
6. Beneficiary contact with multiple portable suppliers
7. Beneficiary use of stationary x-ray services
8. Beneficiary durable medical equipment ("DME") utilization

Results
The OIG found the following of the 352 portable x-ray suppliers in its population:

• 20 (5.7%) suppliers met the criteria for identifying questionable billing patterns where the suppliers exceeded thresholds for questionable billing on at least two (2) individual characteristics as well as the threshold on the combined score (describing the suppliers' overall billing patterns)
• Medicare paid portable x-ray suppliers roughly $12.8 million for return trips to nursing facilities
• Medicare paid at least $6.6 million for portable x-ray services that were ordered by nonphysicians and, therefore, not covered

Recommendations
The OIG recommended the following to CMS in connection with its findings:

• Take appropriate action on the 20 portable x-ray suppliers referred by the OIG;
• Establish a process to periodically identify portable x-ray suppliers that merit greater scrutiny and follow up as appropriate;
• Determine what portion of the $12.8 million CMS paid for return trips in 2009 actually reimbursed suppliers for incorrectly billed Transportation Component claims and collect overpayments where appropriate;
• Collect the $6.6 million in overpayments for portable x-ray services rendered in 2009 that were ordered by nonphysicians; and
• Implement procedures to ensure that CMS pays for portable x-ray services only when ordered by a physician and establish appropriate controls.

CMS concurred with the OIG's recommendations and has taken action to address its reimbursement processes as they relate to portable x-ray suppliers. Portable x-ray suppliers should continue to monitor and assess their billing practices and claims submission to ensure compliance with the applicable laws and regulations.

Continue reading "OIG Releases Report: Questionable Billing Patterns of Portable X-Ray Suppliers" »

The Office of Inspector General ("OIG") has posted its Health Care Fraud Prevention and Enforcement Action Team ("HEAT") compliance training resources on its website wherein it provides videos and audio podcasts regarding a number of topics, including:

• An overview of the OIG


• Overviews of the healthcare fraud and abuse laws;


• Exclusion from Medicare;


• Compliance programs; and


• The importance of documentation.

In light of increased enforcement and prosecution, healthcare providers are encouraged to utilize these resources to better educate themselves on the myriad laws and regulations governing the practice of their profession.

Continue reading "OIG Posts HEAT Healthcare Provider Compliance Videos and Audio Podcasts" »

According to a press release, the Department of Health and Human Services ("HHS") announced that it will be awarding $9 million from the Centers for Medicare and Medicaid Services ("CMS") to Senior Medicare Patrol ("SMP") programs across the country tasked at fighting Medicare fraud. SMP is operated by the Administration on Aging in close partnership with CMS and the HHS Office of Inspector General. The new grants will allow for increased awareness for Medicare beneficiaries about how to prevent, detect and report healthcare fraud.

According to the press release:

The SMP volunteers work in their communities to educate Medicare beneficiaries, family members, and caregivers about the importance of reviewing their Medicare notices, and Medicaid claims if dually-eligible, to identify errors and potentially fraudulent activity. Program volunteers also encourage seniors to make inquiries to the SMP Program when such issues are identified, so that the project may ensure appropriate resolution or referral.

Therefore, providers must continue to emphasize compliance within their practices and also have strong communications with patients to avoid misunderstandings by patients as scrutiny has spread beyond just government officials. The government is investing in patients to help them in the fight against Medicare fraud.

Continue reading "Providers and Suppliers Beware: Medicare Patients Now Looking for Fraud, Too" »

On November 17, 2011, the Centers for Medicare and Medicaid Services ("CMS") announced that it will delay enforcement action until March 31, 2012 for those Health Information Portability and Accountability Act ("HIPAA") covered entities that are not in compliance with the ASC X12 Version 5010, NCPDP Telecom D.0 and NCPDP Medicaid Subrogation 3.0 standards. CMS stated, however, that the compliance date remains January 1, 2012, but it will have discretionary application of its enforcement authority. In fact, according to an FAQ posted on the CMS website:

What will be the level of enforcement during the enforcement discretion period for X12 Version 5010 (Version 5010), NCPDP Telecom D.0 (NCPDP D.0) and NCPDP Medicaid Subrogation 3.0 (NCPDP 3.0) implementation?

The compliance date for implementation of these updated standards remains January 1, 2012. Because trading partner testing has not reached a threshold whereby a majority of covered entities may be able to comply by the compliance date, the Centers for Medicare & Medicaid Services' Office of E-Health Standards and Services (OESS), has announced that it would exercise its enforcement discretion with respect to any HIPAA covered entity that a complaint is filed against for violation of compliance with Version 5010, NCPDP D.0 and NCPDP 3.0 standards. The enforcement discretionary period is for 90 days after the January 1, 2012 compliance date.

If a complaint is received by CMS after January 1, 2012, the entity against which the complaint has been filed will be evaluated to determine its level of compliance. An assessment will be made of the filed-against entity's efforts to test and become compliant. OESS will take appropriate actions as permitted under the authority of the HIPAA enforcement rule, but will not assess any penalties and/or civil monetary penalties during this 90-day period.

Please note: this requirement applies to everyone who is covered by HIPAA, not just those who submit Medicare or Medicaid claims.

CMS' ICD-10 page may be found here.

Continue reading "CMS Announced 90-Day Discretionary Enforcement Period for Compliance with New HIPAA Standards" »

In an indictment unsealed on October 12, Matthew Kolodesh (a/k/a "Matvei Kolodech") was charged with a laundry list of crimes, including 1 count of conspiracy to commit healthcare fraud, 21 counts of healthcare fraud, 2 counts of mail fraud and 11 counts of money laundering of monetary instruments over $10,000. Kolodesh set up, controlled and operated Home Care Hospice, Inc. wherein he allegedly "authorized the submission of claims to Medicare totaling approximately $14.3 million, which claims defendant Kolodesh and A.P. knew were false and fraudulent." "A.P." is the name given in the indictment to Kolodesh's business partner.

The government alleges, in part, that in committing healthcare fraud Kolodesh paid for referrals, paid for certifications of hospice eligibility, authorized fabrication of patient records and supporting documentation, created phony schedules of continuous care visits to patients who were not qualified for continuous care or were never provided continuous care, falsified records submitted in connection with a Medicare audit and siphoned funds from Home Care Hospice that were "fraudulently obtained Medicare payments" to unjustly enrich himself and his family.

According to the Department of Justice press release, "if convicted of all charges, Kolodesh faces a statutory maximum sentence of 370 years in prison. The government will also seek restitution to Medicare in the amount of $14.3 million and proceeds from the money laundering."

Continue reading "Hospice Provider Charged with Defrauding Medicare for More Than $14 Million" »

By way of Transmittal No. 2316 issued on October 7, 2011, CMS clarified the claims processing procedures for hospice services when a required face-to-face encounter does not timely occur. This clarification creates additional administrative burdens to hospice providers when the required face-to-face encounter does not timely occur. Note that the implementation date of the clarified procedures is January 9, 2012.

Pursuant to 42 C.F.R. § 418.20, to be eligible for the Medicare hospice benefit, a beneficiary must have Medicare Part A and must be certified as terminally ill. A Medicare hospice certification is comprised of numerous elements, including a physician's prognosis, a physician's narrative, and clinical information or other documentation supporting the diagnosis. Additionally, as of January 1, 2011, a hospice physician or nurse practitioner must have a face-to-face encounter with each patient prior to the start of the 180th-day recertification and each subsequent recertification in order to determine the beneficiary's continued eligibility for the hospice benefit. The face-to-face encounter must occur prior to, but no more than 30 calendar days prior to, the third benefit period recertification.

Pursuant to Transmittal No. 2316, "If the required face-to-face encounter is not timely, the hospice would be unable to recertify the patient as being terminally ill, and the patient would cease to be eligible for the Medicare hospice benefit. In such instances, the hospice must discharge the patient from the Medicare hospice benefit because he or she is not considered terminally ill for Medicare purposes... The hospice can re-admit the patient to the Medicare hospice benefit once the required encounter occurs, provided the patient continues to meet all of the eligibility requirements and the patient (or representative) files an election statement in accordance with CMS regulations."

Note that this position is a departure from CMS' previous stance on the procedural requirements for processing hospice claims when hospice certification requirements are not satisfied and increases the administrative burden to hospices. Pursuant to the Medicare Benefit Policy Manual (CMS Pub. 100-02), Chapter 9, Section 20.1, if a certification of the beneficiary's prognosis of six months or less is not obtained within the timeframes established by the regulations, "no payment is made for the days prior to the certification. Instead, payment begins with the day of certification." CMS policy does not require that a patient be discharged and re-admitted in this instance; rather, CMS policy simply requires that the dates of service prior to the certification not be billed.

Also of note, Transmittal No. 2316 further states, "Where the only reason the patient ceases to be eligible for the Medicare hospice benefit is the hospice's failure to meet the face-to-face requirement, we would expect the hospice to continue to care for the patient at its own expense until the required encounter occurs."

Continue reading "Hospice Face-to-Face Encounter Requirements Clarified" »

As many already know, when a review contractor (e.g., Recovery Audit Contractors ("RACs"), Medicare Administrative Contractors ("MACs"), the Comprehensive Error Rate Testing ("CERT") contractor, the Program Error Rate Measurement ("PERM") contractor, and Zone Program Integrity Contractors ("ZPIC")) identifies an improper payment, the review contractor requests medical documentation from the provider or supplier to ensure the claim and supporting documentation comply with the Medicare reimbursement rules. This request is typically in the form of a paper letter to the provider or supplier wherein the provider or supplier may only submit the requested records by mail or fax.

However, recently, the Centers for Medicare and Medicaid Services ("CMS") began conducting a pilot program--the Electronic Submission of Medical Documentation ("esMD") pilot--which allows providers and suppliers to send their records to review contractors electronically. According to an MLN Matters article regarding the new esMD pilot program, "[t]he primary intent of esMD is to reduce provider costs and cycle time by minimizing and eventually eliminating paper processing and mailing of medical documentation to review contractors. A secondary goal of esMD is to reduce costs and time at review contractors." Provider and supplier participation in esMD is completely voluntary and submission of paper and/or fax documentation continues to be acceptable.

This pilot program will be conducted in two phases. During Phase 1, beginning September 15, 2011, review contractors will continue to send paper requests for medical documentation and providers or suppliers will have the option to send the medical documentation electronically in portable document format ("PDF"). During Phase 2, beginning October 2012, review contractors will send electronic requests for medical documentation. CMS provides the following graphics depicting the simplified relationship between the review contractors and the provider at each phase:

Providers and suppliers wanting to begin submitting their medical documentation via esMD must obtain access to a CONNECT-compatible getaway. A CONNECT-compatible gateway is the medium through which medical documentation can be exchanged using Nationwide Health Information Network specifications and standards that allow for the secure and private exchange of health information over the Internet. Providers and suppliers looking for CONNECT-compatible gateways may look to Health Information Handlers ("HIHs")--companies that handle health information on a provider or supplier's behalf. A list of HIHs that offer esMD gateway services is provided in the MLN Matters article linked above or on CMS' esMD page.

CMS provides the following more detailed graphics depicting Phases 1 and 2 in their entirety:

Phase 1:

Phase 2:

CMS also provided a timeline for Phase 1 when some review contractors will be scheduled to accept esMD transactions:

Note: CMS expects that the Region C and D RACs and the remaining MACs will begin accepting esMD transactions within the next twelve (12) months.

Continue reading "Medicare Electronic Submission of Medical Documentation Pilot Program Begins September 2011" »

On September 14, 2011, the Centers for Medicare and Medicaid Services ("CMS") published in the Federal Register a proposed rule amending the Clinical Laboratory Improvement Amendments of 1988 ("CLIA") and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") to specify that, upon request, a patient may gain access to his/her completed test reports directly from a laboratory ("Proposed Rule").

Currently, CLIA provides that a laboratory may only disclose test results to three categories of individuals: (1) an "authorized person," (2) the person responsible for using the test results in the treatment context, and (3) the referring lab (42 CFR 493.1291(f)). "Authorized person" is defined as "the individual authorized under State law to order or receive test results, or both." Moreover, even though HIPAA requires patients have access to their protected health information ("PHI"), this right of access does not extend to PHI maintained by a covered entity that is subject to CLIA or exempt from CLIA (this exception can be found at 45 CFR 164.524(a)(1)(iii)).

Under the Proposed Rule, CMS proposes to remove such restrictions in the patient-access rules thereby allowing patients to obtain the laboratory testing results directly from the laboratory. CMS proposes to amend CLIA to allow patients, upon request, to have direct access to their laboratory test reports. In the preamble to the regulations, CMS stated that it would not dictate under CLIA how patients could request such access:

[T]he CLIA regulations would not spell out the mechanism by which patient requests for access would be submitted, processed, or responded to by the laboratories. In providing this latitude, we intend to allow patients and their personal representatives' access to patient test reports in accordance with the requirements of the HIPAA Privacy Rule.

CMS likewise proposes amending the HIPAA Privacy Rule to require covered entities that are laboratories subject to CLIA and those that are CLIA-exempt to have the same obligations as other covered entities with respect to providing individuals access to their PHI in accordance with the requirements 45 CFR 164.524. In other words, CLIA laboratories and CLIA-exempt laboratories would no longer be excepted from the requirement to give patients access to their PHI upon request.

CMS also notes that even though there may be a number of state laws prohibiting laboratories from releasing test reports directly to patients, the new regulations, if adopted, would preempt such laws.

Continue reading "Clinical Labs to Provide Patients Access to Completed Test Reports Under Proposed Rule" »

The Department of Health and Human Services ("HHS") Office of Inspector General ("OIG") has issued its monthly Recovery Act Oversight report for July 2011. The report revealed what many already know: audits and investigations are have increased considerably since 2009, the year the American Recovery and Reinvestment Act of 2009 ("Recovery Act") was signed into law.

Comparing data from July of 2009, 2010 and 2011, it is clear that the number of active OIG investigations has been rising dramatically, with almost twice as many active investigations in July 2011 than in July 2010. We can also see an overall increase in the number of audits, inspections, evaluations and reviews in process since 2009. Even though the numbers of audits, inspections, evaluations and reviews experienced a slight dip in July 2011 versus July 2010, the overall trend has been, and will likely continue to be, an upward growth.


This data should be, yet another, reminder that providers and suppliers have been, and will continue to be, the focus of government scrutiny.

Continue reading "July 2011 OIG Recovery Act Oversight Monthly Report" »

Wisconsin Physician Services (WPS)--the Part B Medicare Administrative Contractor (MAC) for Iowa, Kansas, Missouri and Nebraska and the Legacy Medicare Carrier for Michigan, Illinois, Wisconsin and Minnesota--regularly conducts Service-Specific Probes (Probes) "to validate potential systematic problems with billing, utilization, and or/documentation of a specific service." In a recent Probe, 99213--the billing code for established patient office visits--became the focus, with the sample drawn from Illinois for all specialties.

In reviewing the Probe results, WPS considered 101 services from 100 randomly-selected-claims for 99213 from all specialties (with no more than 5 claims from any one provider). Of those 101 services, 48.51% were allowed as billed and 51.49% were denied.

The 51.49% denied services were attributed to three major problems:

• Documentation Not Received (27.72%) - It is the provider's responsibility to furnish documentation upon request. The provider has 45-days in which to respond with the requested information or the claim will be denied.


• Documentation Did Not Support the Level of Service Billed (22.77%)


• Improper Selection of Procedure Code (0.99%)

WPS reminds providers that medical documentation must meet the following criteria to avoid claim denials:

• Must be legible;


• Clearly identify patient, date of service, and who performed the service;


• Accurately report all pertinent facts, findings, and observations;


• Include appropriate diagnosis for the service provided; and


• Documentation must have a hand-written or an electronic signature. Stamped signatures are not acceptable.

Continue reading "WPS' Service Specific Prepayment Probe Results for Established Patient Office Visits (99213) for Illinois" »

On September 1, 2011, the Department of Justice, the Department of Health and Human Services (HHS), the FBI and the HHS Office of Inspector General (HHS-OIG) jointly announced that eighteen individuals have been charged in the Eastern District of Michigan for their participation in a series of separate Medicare fraud schemes involving home health and psychotherapy services.

According to the court documents, the schemes allegedly involved a total of more than $28 million in fraudulent claims submitted to Medicare for services that were medically unnecessary and/or never provided.

Fourteen individuals are charged in one indictment with conspiracy to commit health care fraud for their roles in a $14 million scheme to defraud Medicare by submitting fraudulent claims for home health care services. The defendants include three physicians, four clinic owners and managers, two clinic employees, one nurse, and four physical therapists and physical therapy assistants. As alleged, the conspiracy was operated out of multiple home health agencies located in Livonia.

In a separate complaint, a physician and two other individuals are charged with health care fraud and the submission of false claims in connection with an approximately $11.5 million scheme to defraud the Medicare program. The scheme allegedly involved false billings for individual and group psychotherapy services at two clinics located in Detroit. According to court documents, the defendants billed Medicare for services that were medically unnecessary and/or never provided.

In another indictment, the owner of a medical clinic located in Southfield was charged with conspiracy to commit health care fraud, health care fraud and identity theft for a scheme allegedly involving $2.9 million in fraudulent billings to Medicare. The clinic owner is alleged to have used the identities of Medicare providers and beneficiaries to bill for psychotherapy services that were medically unnecessary and never performed.

Including these charges, Medicare Fraud Strike Force operations in Detroit have charged a total of 138 individuals in cases involving approximately $148 million in fraudulent billings to Medicare.

These newly announced indictments bear out the advice that we have been delivering to clients, namely that the health care enforcement landscape is evolving and thus it is even more imperative to ensure that providers take pro-active steps to mitigate the likelihood that they will become subjects of the government's more robust initiatives to prevent health care fraud.

Continue reading "Metro Detroit Continues to be a Focus of Health Care Fraud Prosecutions" »

In two reports posted August 30, 2011, the Department of Health and Human Services, Office of Inspector General (OIG) announced that many Independent Diagnostic Testing Facilities (IDTFs) in Miami and Los Angeles failed to comply with selected Medicare standards after unannounced site visits in May and June 2010.

An IDTF offers diagnostic services and is independent of a physician's office or hospital. The selected Medicare standards which the OIG reviewed were that the IDTFs be at the location on file with CMS and to be open during business hours.

In Los Angeles, the OIG found that 46 of the 132 area IDTFs failed to comply with one of the two selected Medicare standards. 24 IDTFs were not at the location on file with CMS. 22 IDTFs were not open during business hours.

In Miami, the OIG found that 27 of the 92 area IDTFs failed to comply with one of the two selected Medicare standards. 23 IDTFs were not at the location on file with CMS. 4 IDTFs were not open during business hours.

As a result of these site visits, the OIG recommended that CMS conduct more unannounced site visits to IDTFs. CMS concurred with the OIG recommendation and stated that it anticipates increasing the frequency of unannounced site visits to IDTFs and will take appropriate administrative actions against the IDTFs identified in the OIG report.

Due to CMS' stated intention to conduct more unannounced site visits, any IDTF must ensure full compliance with Medicare standards. The attorneys at The Health Law Partners can help ensure full compliance with all Medicare standards.

Continue reading "Independent Diagnostic Testing Facilities Facing OIG Scrutiny" »

Statistics recently released by the Transactional Records Access Clearinghouse (TRAC), a Syracuse University Research organization, show a marked increase in federal health care fraud prosecutions. The statistics show 903 federal prosecutions for health care fraud through the first eight months of 2011, compared to 731 such prosecutions for all of 2010.

In addition to the increase in prosecutions, the federal government has also seen an increase in convictions for such fraud. Through the end of August, there have been 24 convictions, compared with 23 such convictions for all of 2010.

The increases in prosecutions and convictions come on the heels of the federal government's increased enforcement efforts. In February, the government added to health care fraud teams, which, in turn, has led to an elevated level of regulatory enforcement activity. These statistics bear out the advice that we have been delivering to clients, namely that the health care enforcement landscape is evolving and thus it is even more imperative to ensure that providers take pro-active steps to mitigate the likelihood that they will become subjects of the government's more robust initiatives to prevent health care fraud.

Continue reading "Health Care Fraud Prosecutions Continue to Rise" »

A common reason for claim denials through the Comprehensive Error Testing ("CERT") program and the medical review process is a lack of provider signatures on orders and medical documentation. Medicare requires that services provided and/or ordered be authenticated by the author. The method of authentication must be a handwritten or electronic signature. Stamped signatures are not acceptable. According to the Centers for Medicare and Medicaid Services ("CMS"), "a handwritten signature is a mark or sign by an individual on a document signifying knowledge, approval, acceptance or obligation." An electronic signature validates an electronic medical record in the same way a handwritten signature validates a written medical record. CMS delineates the obligations of the Medicare Administrative Contractor ("MAC"), Zone Protection Integrity Contractor ("ZPIC") and the CERT program, under the following three situations:

1. Illegible Signature - MACs, ZPICs, and CERT must consider evidence in a signature log or attestation statement to determine the identity of the author of a medical record entry.


2. Signature Missing from Order - MACs and CERT must disregard the order during review of the claim (e.g., the reviewer will proceed as if the order was not received).


3. Signature Missing from Any Other Medical Documentation - MACs and CERT must accept a signature attestation form from the author of the medical entry. This does not apply to signatures missing from orders.

In cases in which providers include an attestation statement, the attestation statement will be valid so long as it is (a) signed and dated by the author of the medical record entry; and (b) it contains sufficient information to identify the beneficiary. CMS has provided a sample attestation statement that may (but is not required) be used.

I, [print full name of the physician/practitioner], hereby attest that the medical record entry for [date of service] accurately reflects signatures/notations that I made in my capacity as [insert provider credentials, e.g., M.D.] when I treated/diagnosed the above listed Medicare beneficiary. I do hereby attest that this information is true, accurate and complete to the best of my knowledge and I understand that any falsification, omission, or concealment of material fact may subject me to administrative, civil, or criminal liability.

MACs and CERT will not consider attestation statements that lack the medical record entry. Moreover, reviewers are not permitted to consider attestation statements from someone other than the author of the medical record entry in question. Therefore, it is impermissible for a member of the provider's group to sign for another member's medical record entries or attestation statements. Notably, reviewers are required to consider all attestation statements regardless of the date on which the statement was created.

CMS provided the following instances in which a the signature requirement had been met:

• Legible full signature


• Legible first initial and last name


• Illegible signature above a typed or printed name


• Illegible signature where the letterhead, addressograph or other information on the page indicates the identity of the signatory (e.g., An illegible signature appears on a prescription, but the letterhead of the prescription indicates three physicians' names, one of which is circled)


• Illegible signature not above a typed/printed name and not on a letterhead, but the submitted documentation is accompanied by a signature log or an attestation statement


• Initials above a typed or printed name


• Initials not over a typed or printed name, but accompanied by a signature log or an attestation statement

CMS also provided a number of exceptions to the signature requirement rule; the following are excepted:

• Faxes of original or electronic signatures for the certification of terminal illness for hospice;


• Instances in which an order does not need to be signed (e.g., orders for some clinical diagnostic tests in which the treating physician has documentation showing that s/he intended the clinical diagnostic test to be performed); and


• Instances in which other regulations and CMS instructions regarding conditions of payment in connection with signatures take precedence.

In sum, providers should keep the following points in mind to ensure compliance with the signature requirement:

• The best practice is to ensure that all record are authenticated at the time of services or shortly thereafter.


• Medicare only accepts handwritten or electronic signatures; it does not accept stamped signatures.


• Attestation statements may be submitted for illegible signatures; however, they may not be submitted for unsigned orders.


• Nobody can sign for the physician.


• Physician offices should have a protocol in place to have physicians sign their records within a reasonable time. Wisconsin Physician Service ("WPS")--the Part B MAC for Illinois, Michigan, Minnesota and Wisconsin--suggests that a "reasonable time" is 48 to 72 hours after the encounter. Signatures must be obtained prior the submitting the claim to Medicare.


• When dictating notes, the transcribed note must indicate the physician's signature--either handwritten or electronic. WPS provides, "it is not sufficient that the provider is designated as dictating the note or his/her name is present in the record."

More details on CMS' signature requirement can be found in Section 3.3.2.4 of the Medicare Program Integrity Manual.

Continue reading "A Renewed Focus on Medicare's Signature Requirements " »