Ad­dress­ing au­dit chal­lenges

Ex­perts of­fer ad­vice on deal­ing with au­dits and stay­ing in com­pli­ance

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Ed­i­tor’s note: Fol­low­ing is an edited ex­cerpt of the tran­script for Mod­ern Health­care’s Dec. 18 ed­i­to­rial we­b­cast, “Avoid­ing the RAC Trap.” The pan­elists were Au­drey An­drews, se­nior vice pres­i­dent and chief com­pli­ance of­fi­cer at Tenet Health­care Corp.; Dr. Harry Feli­ciano, se­nior med­i­cal di­rec­tor at Pal­metto GBA, a Medi­care ad­min­is­tra­tive con­trac­tor; and Lewis Mor­ris, former chief coun­sel of HHS’ in­spec­tor gen­eral’s of­fice and now se­nior coun­sel at Adel­man, Sheff & Smith. In a dis­cus­sion mod­er­ated by Mod­ern Health­care le­gal re­porter Joe Carl­son, the pan­elists dis­cussed strate­gies to help health­care providers deal with over­pay­ment chal­lenges from the fed­eral government. The full we­b­cast is avail­able at mod­ern health­care.com/we­b­casts. Joe Carl­son:

The re­form law in­cluded a rule that would ap­ply or po­ten­tially could ap­ply False Claims Act penal­ties to claims that are held on to by providers for more than 60 days af­ter the over­pay­ment is dis­cov­ered. Mr. Mor­ris, do you think that this rule is frankly work­able given shift­ing def­i­ni­tions of when providers could be said to be dis­cov­er­ing an over­pay­ment? Lewis Mor­ris:

I guess the an­swer right now is we’re not sure. Ev­ery­one is strug­gling with what it means to iden­tify an over­pay­ment, and like so much stuff it’s sort of in the eye of the be­holder. Clearly, I think any rea­son­able per­son in the government would say that a mere hot line com­plaint that a claim is bad doesn’t trig­ger the clock. At the other end of the spec­trum, when a com­pre­hen­sive au­dit has been per­formed and val­i­dated and an over­pay­ment has been iden­ti­fied, I think most rea­son­able peo­ple would say the clock has started. So some­where be­tween that range of in­for­ma­tion is where providers face the chal­lenge.

I’ve talked to government folks about this, pros­e­cu­tors and oth­ers, and I think the view they’re bring­ing to this is that no one is look­ing to write the prover­bial ticket be­cause you’re go­ing 61 in a 60-mph zone. Two days af­ter the 60-day pe­riod, I don’t think any rea­son­able government per­son is go­ing to say that you’re now in False Claims Act land. But if you’re run­ning the stop­lights, if you’re fla­grantly dis­re­gard­ing your in­ter­nal con­trols, if you’ve got in­ter­nal au­dits that iden­tify over­pay­ments and some­one says, “Well, we just don’t have the money right now to pay them back so we’re go­ing to sweep it un­der the car­pet,” I think those providers face ex­po­sure. Carl­son:

Ms. An­drews, I imag­ine as the chief com­pli­ance of­fi­cer for sev­eral dozen hos­pi­tals it must be in­ter­est­ing to find out that you might have False Claims li­a­bil­ity go­ing back 10 years for over­pay­ments that you may or may not know about to­day. Do you have to do some­thing dif­fer­ently to adapt to this new rule? Au­drey An­drews:

What we fo­cus on at Tenet is we ac­tu­ally talk about the over­pay­ment is­sue in the con­text of our ethics pro­gram. … What we try and do is we make it sim­ple. And what we talk about in our ethics train­ing is that if we iden­tify a po­ten­tial over­pay­ment, it’s not our money, and we have an obli­ga­tion work­ing as a leader and a par­tic­i­pant in an honor sys­tem to re­turn those funds … The ap­proach we take is just to ask, if an out­sider were look­ing at how we were fol­low­ing up on this con­cern, would they feel like we were act­ing dili­gently, that we were act­ing quickly and that we had not only our own in­ter­est but the in­ter­est of the par­tic­i­pant in the Medi­care pro­gram at heart and that we ul­ti­mately took the right ac­tion? Carl­son:

Dr. Feli­ciano, I won­der as a Medi­care ad­min­is­tra­tive con­trac­tor, does this rule put you in an in­ter­est­ing spot? As a Medi­care ad­min­is­tra­tive con­trac­tor, your role would be to es­sen­tially process the claim, is that right, sort of take back the over­pay­ment? Dr. Harry Feli­ciano:

That’s cor­rect. And what we do is es­sen­tially work with the busi­ness re­quire­ments that CMS would put out to us in a change re­quest. I do want to add though that in or­der to mit­i­gate the risk, when­ever you have a time­line in­volved, I would sug­gest that or­ga­ni­za­tions use Gantt charts; and specif­i­cally, once the process has been de­scribed suf­fi­ciently, use process flow map­ping to en­sure that your or­ga­ni­za­tion has both ef­fec­tive and ef­fi­cient pro­cesses for meet­ing the stan­dards. I mean those stan­dards could be clin­i­cal, could be fi­nan­cial, could be op­er­a­tional. And just to be clear, process flow di­a­grams de­scribe steps in the process when­ever process is be­ing stud­ied. Process flow maps, how­ever, add the re­spon­si­ble unit or de­part­ment to the process flow di­a­gram in­for­ma­tion. And what that al­lows you to do is to iden­tify po­ten­tial in­ef­fec­tive or in­ef­fi­cient ex­changes. So, if you are both iden­ti­fy­ing and ef­fi­ciently im­ple­ment­ing the in­struc­tions that CMS has put out, as Au­drey pointed out, you’ll be fine. Carl­son:

Why do short acute-care stays at­tract so much at­ten­tion? Mor­ris:

I think there are prob­a­bly a cou­ple of an­swers. One, be­cause when au­di­tors went in and looked, they found a lack of doc­u­men­ta­tion and a lack of med­i­cal ne­ces­sity to jus­tify it, so they start dig­ging deeper, and the er­ror rates are very high. I sus­pect it may also be in part— and, Harry, please re­spond to this—if a re­cov­ery au­dit con­trac­tor or re­cov­ery au­di­tor does a re­view of a short stay … and de­ter­mines that the ser­vice is not ad­e­quately doc­u­mented or lacks med­i­cal jus­ti­fi­ca­tion, the en­tire stay is de­nied, which means that since the re­cov­ery au­di­tors op­er­ate on a con­tin­gency fee, they get a per­cent­age of that en­tire ser­vice back to them as part of their con­tin­gency. So there’s both an eco­nomic in­cen­tive and then I think the ev­i­dence sup­ports this be­ing a hot spot. Carl­son:

Ms. An­drews, in terms of this fo­cus on one-day stays, I won­der what’s your per­spec­tive on this, and what can be done by a health­care provider since a one-day hospi­tal stay is go­ing to

be scru­ti­nized. If you have a case where this is go­ing to be nec­es­sary, how do you keep your­self out of trou­ble? An­drews:

I think there are a lot of things that providers can do in that re­gard. Ob­vi­ously … you have got to have an or­der, and so we’ve got a clear pol­icy at Tenet on what level of speci­ficity needs to be laid out in the or­ders that we act on. And then, one of the things that many providers are do­ing, not just Tenet, but tak­ing that or­der and run­ning it through some ev­i­dence-based set of cri­te­ria to make sure that ob­jec­tive ev­i­dence-based stan­dards are in­cluded in the physi­cian’s de­ci­sion­mak­ing process. And the fact of run­ning it through those stan­dards does not in and of it­self give you an an­swer, but it does help you im­prove your doc­u­men­ta­tion.

It helps make sure … that if a physi­cian is think­ing through a se­ries of rea­sons why a pa­tient might need to be ad­mit­ted as an in­pa­tient, that those rea­sons are laid out clearly in the med­i­cal record. And if you look at the ad­mis­sion stan­dards in the Medi­care pro­gram man­u­als, the ba­sic stan­dard is that it’s ex­pected that the pa­tient is go­ing to stay overnight, and there’s a lit­tle more de­tail that goes into it than that; but it tends to be an area where physi­cians in the past would just say the word ad­mit and that would be enough and the claims would be paid. Carl­son:

What can providers do to­day to make sure that elec­tronic health records are not caus­ing er­rors? How can you make sure that your EHRs are not caus­ing er­ro­neous pay­ments? An­drews:

This is a real chal­lenge for me per­son­ally be­cause go­ing through school my exit mantra was, “Don’t go into clin­i­cal sys­tems.” This is not my skill set. … What com­pli­ance of­fi­cers are now faced with is that you’ve got to get into th­ese sys­tems and really look and see how they work. And so, whereas 10 years ago I wouldn’t spend hardly any time on an is­sue like that, I prob­a­bly spend a sig­nif­i­cant por­tion of my time to­day with our clin­i­cal IT team look­ing at sys­tems, work­ing with ven­dors, un­der­stand­ing the ar­chi­tec­ture be­hind the front screens, what our care­givers see on the front screens, how those screens help drive ev­i­dence-based care but not overuti­liza­tion. You’ve got to strike a bal­ance be­tween those two things. And our view is that clin­i­cal IT can be an in­cred­i­bly pow­er­ful tool to im­prove pa­tient care and out­comes if it’s used in the right way, and you’ve got to be able to strike that bal­ance. Carl­son:

But how can a com­puter sys­tem drive overuse? An­drews:

The the­ory be­hind the core mea­sures is that you want to see cer­tain things be­ing done for pa­tients ev­ery time. You want to see that con­sis­tency. And if the things that are be­ing done ev­ery time are the right things and they are sup­ported by med­i­cal lit­er­a­ture, that im­proves care, and that’s really in our view the im­per­a­tive be­hind clin­i­cal IT sys­tems. They can cre­ate bet­ter out­comes for pa­tients.

But if some­thing works its way into that sys­tem that is not sup­ported by med­i­cal ev­i­dence, peer-re­viewed lit­er­a­ture, that might ... con­sist of fraud, waste and abuse or cause overuti­liza­tion ... lab tests that might not be needed for ev­ery pa­tient ev­ery time, then those have the abil­ity to cre­ate com­pli­ance prob­lems and qual­ity prob­lems for your pa­tients in your hospi­tal.

Mor­ris

Feli­ciano

An­drews

Carl­son

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