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Hi everyone, this is Michael Miscoe with Miscoe Health Law with this week’s installment of ChiroSecure’s Growth Without Risk. Series podcast. I guess you could call it that. And what we’re going to talk about today is the Medicare, what I like to call not so voluntary disclosure and refund rule. The reason I say not so because it’s not voluntary.
It’s a mandatory rule. And it is a component of the False Claims Act, which has some very scary implications if you are a provider that, that continues to bill Medicare. It used to be a voluntary rule and essentially there was subsection G of the False Claims Act, was a provision that required providers to voluntarily disclose any overpayment.
That they knew that they got. So if you got paid twice on a service, or Medicare paid more than they should have paid, you had an obligation historically under the rule, not to retain that extra money that you weren’t entitled to, but give it back. Now, with the advent of the Affordable Care Act, they started putting some teeth into Medicare.
This rule and then subsequent revisions put even more teeth. So what we’re going to talk about is the implications of this rule because it has had a rather significant impact to Medicare post payment audits for chiropractors, especially when they do what are called targeted probe and educate audits, TPE audits, or TPE audits.
A standard SMRC probe audit supplemental medical review contractor audits, or your own Medicare administrative contractor, your max integrity audits. In days of old, when we got, a chiropractor got an audit, and it would say 20, 30, 40 claims, something like that and let’s say they denied everything, the overpayment would be like 1, and it was just cheaper to pay it than it was to fight it.
Even if we thought that the audit result was inaccurate, what changed under the voluntary refund and disclosure rule is this, is that in the regulatory guidance, implementing the rule What CMS discussed in rather lengthy detail are the things that put you on notice that you have a potential overpayment for Medicare.
It could be an internal audit. It could be a single EOB where there was a payment result that you shouldn’t have gotten. It could be an external audit like these probe audits or TPE audits. Bottom line, anything that puts you on notice that you might have an overpayment, it triggers an obligation, a statutory obligation, mind you, to do an investigation to determine if in fact other overpayments exist.
Reading something in a compliance guidance or something that tells you that you know that you haven’t been complying with, that could trigger an obligation. Now, the look back period for this obligation is 6 years. When we start doing these voluntary disclosure investigations, we look at whatever the potentially problematic conduct is.
And the first thing we want to assess is how long has it been potentially going on. Now, if we can isolate, say, for example, it’s a documentation problem and it’s limited to a particular provider, and that provider’s only been employed for two years, we go back two years. If it’s a problem that we can’t necessarily identify a start date, we have to go back six years.
Now, interestingly, the government can only reopen for cause claims going back potentially as much as five years. This requirement exposes you to a longer time frame of post payment liability where you essentially have to self report. Now, You think about, shoot, if they don’t know about it, why should I go digging up stones?
Problem is if you don’t, and they find that you had credible evidence of an overpayment and you did not go through, do the investigation, then the disclosure and refund, we’ll talk about the the mechanics of how that all that works and the timing. If you don’t, then all the claims that were air quote overpaid become false claims.
This is what we call reverse false claims liability. Even though the claim was not fraudulent in its submission, it becomes fraudulent when you know or should have known that it was an overpayment, that it was paid improperly, and you did not do an investigation to identify the specific claims that were overpaid, disclose them and refund them.
So what that means is that as if you get selected for a CERT audit, for example, a comprehensive error rate testing audit, which OIG is doing again right now. The reason I’m doing this topic is because I’m anticipating that we’re going to go into another Chiropractic post payment audit cycle it’s been a couple years since we’ve been through one.
OIG is doing CERT audits on chiropractic right now, and while many providers have gone cash, and I think the chiropractic billing volume is down somewhat, it’s still apparently significant enough for them to look at. Long story short, CERT audits and publish their results, They’re no doubt going to find that Medicare administrative contractors are paying chiropractic claims that shouldn’t be paid, no doubt due to documentation defects which suggests that it’s the documentation that makes the services covered, not the actual clinical facts.
And that’s a whole different lecture, but There’s going to be a relatively high error rate. I wouldn’t doubt it’s going to be still up in the 90s, 90%. Then, OIG publishes those reports, and then the various audit contractors are going to start doing audits. Now, if they do probe audits, which means they just select a non statistical sample of claims, maybe somewhere between 20 and 40 claims, the total value of those claims is not going to be significant.
However if you get an error rate back that says a 100 year response, Percent of your claims are denied. It is not medically necessary because you didn’t have objective measurable goals. You’re missing certain elements of documentation. You weren’t properly demonstrating subluxation or whatever they come up with or a combination of all of the above.
Not only, you can appeal that, of course, and we do, but if their audit result is accurate. Okay, let’s say you elect not to appeal and you just pay back the 1500 bucks or whatever it is. You’re supposed to then turn around and do an investigation of your own and your audit result letter will actually have this language in it.
And you’re supposed to go back six years and identify similar air quote error and then do a disclosure and refund. So when you look at six years worth of Medicare payments, it’s usually a pretty horrifying number. And if you have a relatively busy Medicare practice and even if you don’t it’s still going to be, a not very nice number.
Certainly a number you couldn’t afford to write a check for. In most cases. And therefore providers don’t do it. They’re scared to look. The problem with that is, and I have to tell you the, I can’t really calculate the risk of the government coming back and it would be the Department of Justice or the OIG, one or the other.
If it’s OIG, they would hit you with civil money penalties, Department of Justice, treble damages and whatnot. But if they were to come back, And say, hey, we noticed you did not do any disclosure and refund in the wake of this audit. They identify all similar error that would pull a statistical sample, come up with a number, and now you’re liable to three times that amount plus statutory penalties of, I think at the current, it changes every year, but it’s somewhere around 22, 500 per claim.
So you’re talking about a practice ending event. And in settlement, usually you can get the Department of Justice to settle for double damages. So that jaw dropping number at 22, 500, Just the amount of payment double that, and it becomes doubly jaw dropping. Massive liability here if you’re going to bill Medicare.
And if you are going to bill Medicare, you really, truly need to understand Their documentation requirements, even beyond what their actual rules say, and I’ll give you an example. In the initial visit treatment plan, they have a, and it’s not actually even a requirement. It says that a treatment plan should include, which is not mandatory, but they read it as such, and it asks for specific.
Treatment Goals, Objective Measures to Evaluate Treatment Effectiveness, which would be the exam findings that tell you, what’s going on with the patient, and Frequency and Duration. Now, specific Treatment Goals and Objective Measures, they combine those two things, and they, routinely look for objective, measurable goals.
And while there is a way to document that and meet that burden, it is very time consuming. And it eliminates probably 90 percent of your Medicare practice from qualification, in terms of medical necessity anyway. So the reality is if you’re billing Medicare, my guess is your documentation is not going to hold up.
I have probably in 30 years seen one chiropractic Medicare audit that wasn’t 100 percent denial. So just understand that’s what’s going to happen. And I know there are many of you out there that think that your documentation is really great. And trust me, it’s not. If you want to see what good documentation or what compliant documentation looks like, I can show you.
But the problem is there’s no EMR system that does, that will produce it, number one. And number two Even if you could produce it manually, it would be so time consuming that it makes your Medicare treatment not worth it. Those of you that listened to my presentations over the years know that I’m not a big fan.
of billing Medicare. I can show you how. It’s just you won’t be profitable doing Medicare. But if you elect to continue to do it because, they bake you cookies at Christmas time or whatever and you feel bad for your Medicare patients and you want to submit those claims, just understand what kind of liability you’re taking on.
Because you could be put into a situation where you’re going to have to refund all the money going back six years, and it becomes, when I get involved in these things, it’s one of those good news, bad news things. The bad news, Doc, is that we got to refund all this money going back six years.
The good news is that we only have to refund all the money going back six years if we comply with the voluntary disclosure and refund rule. If you run the risk, don’t do the disclosure. And Medicare Elects in their attempt to solve their financial issues which are looming I wouldn’t put it past the government to start more routinely, pushing False Claims Act cases against all providers for failing to meet their obligations under the Voluntary Refund and Disclosure Rule.
A little bit of the mechanics about how it works Let’s say, they raise an issue about your documentation being non compliant. Certainly, when that happens, we appeal that result. The likelihood of winning is very low. What it does is it buys us time because we’re not so much appealing the 1, 200 result, we’re appealing, trying to whittle down what we’re going to have to disclose and refund in the end.
Ultimately that becomes the purpose of the appeal. is how much of that six year look back we can carve away. The second part of it is that you have A period of time, and I will say it’s maximally 6 months for an incredibly complex analysis. These analyses are not that complex. So you’re going to probably have 2 months to pull records, pull a sample, which means we hire a statistician, we design a statistically valid random sample, we pull the files, we have them independently audited pursuant to Medicare standards And, anything that we can’t fix by addendum we’re going to have to disclose and refund.
Once we identify specific claims down to the claim number you have 60 days to disclose that. Now, if the amount is something that you can’t afford to pay, they have things like what are called extended repayment schedules. They do charge you interest. It’s somewhere up around 12 percent right now.
So it’s a ridiculous amount of money if you can borrow money commercially and pay back. Medicare, and then deal with your local bank even if it puts you in bankruptcy, you got a better shot at discharging a commercial loan obligation than you do an obligation to Medicare, because obviously in the law, they protect themselves.
I am not a bankruptcy lawyer. I am told that there are potential ways to discharge such an obligation in bankruptcy, but it’s not a lock. So just understand that. And in the ERS, they’ll give you up to five years. That’s as far as they usually go. They don’t have a compromise program. If you have tax liability, here are the ads on, TV or on a radio or whatever, if you have, you up unresolved tax liability call, so and and they’ll work you through doing a compromise.
The IRS has such a program, CMS does not. So there really isn’t a way. There is a settlement process that they opened up. Once you file for Administrative Law Judge Appeal it’s a little complicated. It’s not going to result in a very big reduction. The most I’ve heard of is 20%. So that’s not usually going to move the needle enough to make it worth the effort.
Once that 60 day clock starts running that’s how long you have to get your disclosure submitted. And then once it is submitted, then they’ll do the overpayment demand and because you’re disclosing the error, of course, you won’t have the right of appeal because it’s an admission against interest.
And you’ll just have to work out the repayment. For those of you still billing Medicare, just understand, what has changed in the law over the last 10 years, and it makes Medicare a very risky proposition. Even without that, it’s an enormous amount of work to comply with Medicare’s rules for the little bit of money that you get.
And then you also have to consider that most of your patients who are frequent flyers and they come for one or two visits and, those are not patients that you can build a treatment plan around. It has, the patient has to qualify, under the circumstances for coverage, a significant health problem, meaning.
Something’s seriously wrong they’re going to require three time a week care and don’t delude yourself into believing that you can just simply order three time a week care that they don’t show up for, like that’s going to work because it doesn’t they have to have a condition where they actually really need it.
You don’t have to convince them to come to the office. They’re hurting that bad. And you have to be able to show objective measurable improvements, which means you need to get out of the soap note model. Today I found, which tends to be a bit repetitive, and you have to focus on what changes are actually occurring with your treatment in an objective way.
So pain scales, that’s subjective. Outcome assessment is helpful, but it’s still subjective. So they need to see. Quantifiably numeric ratings of severity of problems, how that’s changing and I could show you how to do that, but it is very time consuming, and I’ll tell you this, your patients are going to be the one to screw up your treatment plan.
They’re not going to show up. They’re going to have, oh, my, hair stylist, had an opening and so I had to go there instead. Tells me they don’t need the care. They need to be dismissed and move to cash. And I truly believe. The OIG is right, but for the wrong reason, that, better than 90 percent of what most chiropractors bill to Medicare probably shouldn’t be billed, if you truly understand their medical necessity criteria.
Unfortunately, they use documentation content compliance as their basis for declaring care medically unnecessary, and while that’s wrong, there is a right answer, and when you get cases up in front of judges, administrative law judges, they tend to look at The character of the treatment and whatnot and, even though they might agree that the paper doesn’t necessarily make the services medically necessary and they don’t actually consider or believe that they should consider, that it was a real patient who had a real problem who got real treatment and got a real benefit.
Those aren’t facts that we really get to discuss in an administrative law judge hearing or during appeal that any contractor is going to look at. It’s all going to come down to content compliance, and if you comply, then the circumstances become relevant, and they’ll club you over the head with that.
So it is a very rare Medicare patient that truly presents with restoration potential, that has a significant health problem and you can anticipate. significant functional improvement with a relatively short period of care because on the flip side, Medicare believes that, based upon average billing data that, you should be doing five point something visits per patient per year.
So that is one very brief treatment plan per patient. Otherwise, your total visit numbers are going to put you in a crosshairs for an audit. It’s almost like on one hand, they don’t want you to do sufficient treatment to get somebody who’s actually really hurt. But on the other hand, if you do and you make a documentation state mistake, you’re going to get crushed.
Just understand, that’s why I’m not a big fan of billing Medicare, because it’s just, it’s not worth it. The juice is not worth the squeeze. But if you elect to do it, go in eyes wide open, understanding what the risks are and make sure that you’re doing everything possible. To completely comply with the documentation element requirements for the initial visit and subsequent visits, and you can find those in the Medicare Benefit Policy Manual, which is Internet Only Manual, Pub 100 2, Chapter 15, Section 240.
1. 2. 2 A and B. That’s all we have time for today. I hope that is helpful, and we’ll see you next time.