What the OIG is looking for in EMS documentation
Expect more oversight of EMS billing through post-payment audits and increased investigations, prosecution
By Kevin Fairlie
Health care providers of all shapes and sizes have seen an increase in Medicare and Medicaid payment audits after the implementation of the Affordable Care Act and its many provisions for safeguarding Medicare and Medicaid. The Office of the Inspector General at the U.S. Department of Health and Human Services says the Centers for Medicare & Medicaid Services should increase monitoring of ambulance billing. Here is what increased monitoring will look like and how it will impact EMS agencies.
Increased audits of EMS agencies
EMS agencies should expect audits to increase in frequency and complexity. A September 2015 study released by the OIG found that roughly 1 in 5 ambulance providers had questionable billing practices.
The study recommended that CMS increase its monitoring of ambulance billing. This will come in the form of billing audits in which EMS agencies will be required to justify, through appropriate documentation, that their claims are legitimate. If agencies cannot, they will face potentially large paybacks — returning Medicare and Medicaid payments. This should be expected from both Medicare at the federal level and Medicaid at the state level.
CMS — and increasingly Medicaid audit and compliance divisions — has invested heavily in IT infrastructure that allows them to do a much better job of data mining to identify trends and unusual patterns in claims. It’s also clear by the specificity of many of these post-payment audits that Medicare and Medicaid are better able to zero in on certain areas of concern.
Expect audits to continue to focus on regularly scheduled non-emergency transports, such as dialysis transports. The OIG, CMS and state Medicaid units have all become more advanced at identifying potential issues with dialysis transports and, beyond simple paybacks, there continue to be regular civil and criminal prosecution in this area.
With that said, the OIG made it clear that this is not its only area of concern. In the published 2016 Work Plan, they OIG specifically states that Medicare has made inappropriate payments for ALS emergency transports in the past and that ALS emergency transports will be an area of focus for 2016.
Increased information sharing between CMS, states and managed care
Another recent trend is a significant increase in sharing of audit findings and similar information between government and even managed care organizations. This means that you may receive and respond to one audit that prompts additional audits.
For example, I recently met with the State Medicaid Audit Unit director to settle an investigation and was informed that CMS had directed the Medicaid unit to provide any audit findings to the Medicaid managed care plans in the state. This obviously creates the possibility that managed care plans will then come auditing and looking for reimbursement.
Increased criminal prosecution
The potential for criminal prosecution is certainly scary, but EMS leaders should come to terms with the fact that the Department of Justice has made it exceedingly clear that it will increase its focus on criminal prosecution under the False Claims Act — which encompasses submission of ambulance claims under Medicare. As an example, the Criminal Division at the Department of Justice has announced that it is now automatically reviewing all civil qui tam false claims cases for potential parallel criminal proceedings.
Additionally, the joint task force between the DOJ and the Department of Health and Human Services, referred to as HEAT, continues to arrest and indict individuals through its Medicare Fraud Task Force. In March 2015 the Task Force announced a conviction rate of 95 percent, with the average length of incarceration more than four years.
EMS leaders should not only be concerned about potentially large paybacks due to oversight of Medicare ambulance claims, they should also remain aware of the fact that they can face individual criminal liability for these claims as well.
Have a clear procedure for responding to billing audits
Because of increased monitoring, EMS agencies need to plan now for responding to billing audits. It sounds simple, but how you respond to billing audits can have wide-ranging implications.
For example, every audit, whether Medicare or Medicaid, will be time-sensitive. It’s not unusual to receive a 10-day deadline in which to respond to audit requests. If you don’t respond in time, or at least make contact requesting an extension, the law will typically hold that you are responsible for the entire payback regardless of whether you ultimately have documentation disputing the audit.
Make sure expectations are clear if using a third-party billing service
If you are handling billing and claims internally, you need to make sure you have a procedure in place for responding to billing audits and assign a person with clear responsibility for ensuring that your procedure is followed. Also, if you use a third-party billing service, don’t assume that the billing service will handle all audits on your behalf.
It is absolutely critical to keep in mind that both the federal and state investigators will hold the agency responsible in these situations. You are the provider, and it is you with whom the government has a contractual relationship. Saying that you rely on a third-party billing service provides little defense.
That said, third-party billing companies can be very helpful in handling billing audits on your behalf, but all third-party billing relationships are contractual in nature. You must have a discussion with these companies and have a very clear understanding of what, if any, obligation they have to assist your agency in responding to these types of audits.
Know what you are sending before responding to an audit
As part of your audit response plan, it is essential that you have some sort of review process to identify potential problem areas before you turn over requested documents. This can be done internally if you have a good team, or it can certainly be done by qualified third-party billing services or consultants.
Too many companies treat an audit request for billing documents as any other document request and simply hand over documents without analysis. Once you hand over documents, you are vulnerable and somewhat at the mercy of the auditors.
If there is a potential billing issue, you can almost always identify the issue prior to answering. And, if there is an issue, now is the time to get in front of it.
Government investigators and auditors, from the state level to the federal level, will always view a proactive disclosure of potential issues much more favorably than handing over documents and letting them figure it out on their own. How you shape your response at this point is absolutely critical to mitigating issues moving forward.
In summary, you should expect more oversight of your agency's billing and claims practices. This will happen primarily in the form of post-payment billing audits, but we will continue to see increased investigations into improper ambulance billing — both through civil and, in more serious situations, criminal prosecution. You need to have a clear plan now for timely and thorough responses to these audits.
Finally, it’s worth noting that this article doesn’t address the importance of accurate and thorough documentation to support the claims you submit for reimbursement. Without excellent documentation, the complexity of responding to billing audits increases exponentially.
About the author
Kevin Fairlie is a healthcare attorney who specializes in representing EMS corporations and agencies. Fairlie is the former general counsel for a large multi-state EMS agency and has held numerous EMS leadership positions including serving as CEO. He is the founding member of Fairlie Law, LLC, which is a national healthcare and EMS law firm.