June 26, 2014

Uphill Battle Fighting Fraud: CMS Defends its Progress at Subcommittee Hearing

By


Shantanu Agrawal, MD

The Oversight and Investigations Subcommittee of the U.S. House of Representatives Committee on Energy and Commerce clearly does not believe that the Centers for Medicare & Medicaid Services (CMS) is doing as much as it can to reduce fraud and abuse in the Medicare program. Questions including the following launched yesterday’s congressional hearing, which focused on Medicare program integrity: Does CMS really have the ability to reduce fraud?

For the most part, Shantanu Agrawal, MD, deputy administrator and director of the CMS Center for Program Integrity, managed to answer questions such as these and others that required, as one subcommittee member noted, more “granular” answers.

However, Dr. Agrawal was not all alone in undergoing what can only be described as a grilling. The following also gave brief introductory testimony and answered questions that were out of Agrawal’s areas of expertise:

  • Gary Cantrell, deputy inspector general for investigations, Office of Inspector General (OIG) for the U.S. Department of Health and Human Services (HHS)
  • Gloria L. Jarmon, deputy inspector general for audit services, HHS OIG
  • Kathleen M. King, director, healthcare, U.S. Government Accountability Office (GAO)

Early on in the hearing, subcommittee chairman Timothy Murphy (R-Pa.) focused on the dollars and cents of Medicare fraud: How much is being recovered? How much will CMS spend this year on integrity efforts? How much did it spend in previous years? Has there been an increase or decrease in terms of efforts to fight fraud?

To this last question, Cantrell answered that funding had flattened out, and so the OIG has had to make adjustments in its efforts. More specifically, it is currently in a hiring freeze and has lost more than 200 people during the past two years. It also has closed more than 2,200 investigative complaints, and by the end of the 2014 fiscal year, it expects to reduce Medicare and Medicaid oversight by 20 percent.

Data challenges and resource constraints pose significant challenges for program integrity efforts,” Cantrell said. Asked by several subcommittee members what the OIG would do with additional funding, he said it would hire more investigators and invest in information technology to bring the agency up to speed.

How do “They” Get Away with It?

In his testimony, Cantrell reported that CMS mistakenly issued $190 million in healthcare payments from 2009 through 2011. The erroneous payments included:

  • $23 million to dead people
  • $92 million to “unlawfully present” persons
  • $34 million to service providers for beneficiaries who were in jail (even though prisons typically provide for the medical care of inmates)
  • $40 million for prescription drug subsidies for undeserving beneficiaries

On top of this, Cantrell said, “concerns continue to be raised about a permissive approach that allows providers with questionable backgrounds to keep billing taxpayers.” He provided examples of how physicians with such backgrounds were still getting rich off the Medicare program:

  • Seven doctors who had lost a medical license because of misconduct collected a total of $6.5 million from Medicare.
  • Physicians charged with Medicare fraud during the last 16 months were paid $17 million in taxpayer money.
  • In 2007, one physician pleaded guilty to a mail-fraud felony related to dealings with the Food & Drug Administration (FDA), being permanently debarred in 2009. However, he was not excluded from Medicare and received more than $86,000 in payments in 2012.
  • Four other doctors who entered guilty pleas between 2006 and 2008 were debarred by the FDA before or during 2012, but they received more than $900,000 in Medicare payments in 2012.

Several subcommittee members asked Agrawal and the others to explain how this could happen. The representatives were incredulous, to say the least, that CMS could allow these “bad actors” to continue to do business within the Medicare program and wanted to know what the agency was doing to weed them out.

Getting Rid of the Bad Eggs

For the last few years, CMS has been using the Fraud Prevention System (FPS), which the agency touts as a way of ending “pay-and-chase” activities. The FPS allows the agency to apply advanced analytics on all Medicare fee-for-service (FFS) claims. In its first year of implementation, Agrawal reported, the FPS stopped, prevented, or identified an estimated $115.4 million in improper payments.

CMS also is applying the authority given to it by the Patient Protection and Affordable Care Act (PPACA) to pause, at least temporarily, the enrollment of new Medicare, Medicaid, or Children’s Health Insurance Program (CHIP) providers and suppliers if it determines that certain geographic areas represent a high risk of fraud. In July 2013, CMS announced a temporary pause on the enrollment of new home health agencies (HHAs) and ambulance companies in several “fraud hot spots.” The agency took administrative actions such as suspending or revoking payments and worked with local law enforcement to investigate and prosecute those who found themselves in its crosshairs.

In addition, CMS has enhanced the provider enrollment-and-screening process, installing safeguards to ensure that only legitimate providers enroll in the Medicare program. This enhanced screening requires historically high-risk providers and suppliers to submit to greater scrutiny before Medicare enrollment or revalidation. Since its inception, CMS has revoked the billing privileges of more than 20,000 providers and suppliers.

Addressing Identity Theft

Currently, the Medicare card used by beneficiaries features names and social security numbers. One subcommittee member, U.S. Rep. Renee Ellmers (R-N.C.), asked why CMS had not adopted a previously made GAO recommendation that these be removed from the Medicare card.

CMS is not opposed to this idea, Agrawal said, but he explained that to make those changes, the agency would have to modify 70 of its systems – and changes also would need to be made to the Medicaid system and by private insurers. Agrawal noted that the agency does not have the funds in its budget to make these changes at this time.

GAO Gives Advice

Even though CMS has taken many actions to prevent fraud and abuse in the Medicare program, the GAO and the OIG reported that CMS has not fully implemented provisions authorized by the PPACA. Kathleen M. King, the GAO’s healthcare director, gave the following examples of unimplemented actions:

  • Surety Bonds: The PPACA authorized CMS to require a surety bond for certain types of at-risk providers and suppliers. The bonds also could serve as a source for recoupment of erroneous payments.
  • Disclosure of Offenders: CMS was supposed to issue a proposed rule indicating that it would begin disclosing prior actions taken against providers and suppliers who enrolled in, or were revalidating their enrollment in, Medicare. An example would be when a provider or supplier has been subject to a payment suspension from a federal healthcare program.
  • Compliance Program: CMS has not established the core elements of compliance programs for providers and suppliers.

To Be Continued

As evidenced by the energy-filled back-and-forth between subcommittee members and the witnesses, the fight against fraud will continue in earnest with or without additional funding. Ellmers, for instance, called for more efficient operations and urged CMS to simply “take action now.”

About the Author

Janis Oppelt, is the editorial director for MedLearn  Publishing,  a division of Panacea Healthcare Solutions.

Contact the Author

joppelt@panaceainc.com

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Janis Oppelt

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