Compliance Issues on the Horizon: Closer Than You Think

Original story posted on: January 30, 2019

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E&M changes, opioid crisis among issues profiled in the following forecast

As the commentators who predicted that the Segway would revolutionize travel well know (you can read about that in Time), making predictions about how the world will change is challenging.

When I storm-chase, I think of myself as a better-than-average forecaster. I see a tornado on about 25 percent of chases, meaning I am wrong three out of four times, so I have learned not to be too confident in my predictions about the future. But there are a few major trends already underway that seem likely to continue.   

First, I haven’t worked on a new evaluation and management (E&M) coding appeal in years. A few cases linger on because of the administrative law judge (ALJ) backlog. But despite my love of these disputes, I am not working on any.

Perhaps other lawyers are doing the appeals, or physicians are simply paying the overpayments rather than appealing, but my belief is that E&M audits are simply far less common than they have been in the past. When you factor in the proposed changes from the 2019 Medicare physician fee schedule that will establish one reimbursement rate for codes 99212 through 99214, and another single rate for code 99201 though 99204, I think there will much less emphasis on the coding of physician office visits. External audits are likely to decline, and that may change the need to conduct internal reviews. Of course, it is yet to be seen whether private insurers will adopt Medicare’s approach. 

I have little doubt that opioid-related issues are going to receive the majority of government resources.   Whether examining over-prescription, poor storage, improper disposal, or weak accounting of narcotics, the Drug Enforcement Administration (DEA) will be busy. The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) will likely devote resources to the enforcement of the new Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act, which greatly broadens kickback penalties. The law is so broad that as written, it applies to all labs, including hospital and clinical labs that perform tests totally unrelated to drug treatment. That law prohibits a clinical or hospital lab from paying its employees commission or other compensation that is based on revenue generation.

Within the Centers for Medicare & Medicaid Services (CMS), there appears to be a definite move toward more reasonable regulation. But regarding the recent government shutdown, we expected new guidance about sharing space in hospital-based departments to have been issued by now. That guidance will presumably be delayed further, but there is a reason for cautious optimism that the trend toward more rational regulation will continue. 

I suspect the trend towards alternative payment systems will also continue, and that is likely to entail a host of unintended and currently unforeseen consequences. Many payment metrics change behavior. For example, when payment is based on smoking cessation, professionals have an incentive to disavow themselves from patients who smoke. It is quite likely that a factor in the opioid crisis was the fact that patient satisfaction surveys emphasized pain management.

As we move to value-based purchasing, we will create surprising new problems. It can be challenging to know every measure that is being used, but if you want to avoid unexpected penalties, it will be vital to mind the metrics. 

Finally, the desire to be compliant and the obligation to refund overpayments will continue to result in organizations needlessly refunding money for technical errors despite the fact that it is not legally required. If your organization would refund money because you shared outpatient space, had unsigned charts, had some unwritten or unsigned orders, or due to a host of other related issues, you may want to watch “How to Avoid Unnecessary Refunds,” on demand here, to ensure you can keep all of the reimbursement to which you are entitled. 


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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.


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