Retrospective chart reviews: Christ expects this 2019 hot topic to heat up even more this year. The fact that the OIG recently released guidance expressing significant concern regarding codes derived from retrospective chart review. This suggests both OIG and CMS will take a closer look at how organizations conduct these medical record reviews after treatment is provided and whether the codes are linked to actual encounters, he says.
Retrospective review is also a “significant enforcement target” for the DOJ and the qui tam bar and has manifest in several cases, including the United State ex rel. Poehling v. UnitedHealth Group. Inc., and United States ex rel. Swoben v. Secure Horizons, et al., which have challenged the completeness of retrospective review, the accuracy of retrospective view, and the notion of two-way coding. Indeed, both cases alleged that the insurers conducted one-sided retrospective reviews of medical records, focusing on underpayments while ignoring codes that might not be supported.
In-home assessments: Christ notes that several investigations litigation may begin to address key legal concepts relevant to in-home assessments. Early cases focused on whether assessments were completed with allegations that the provider did not show up or conducted an unrealistic high number during the day. Later cases challenged the reasonableness of the diagnoses in the home setting and whether the provider had the appropriate equipment and training to make the diagnosis and whether additional tests are needed.
“It gets us to an interesting area where enforcement agencies and the qui tam bar, through cases and enforcement are testing an area in which CMS has provided little guidance, i.e., what is a reasonable setting and how much does a clinician need to do to diagnose a given condition? CMS has produced some RADV guidance but ultimately refers back to ICD standards, which themselves are often ill defined for risk adjustment purposes. I think that will be a fascinating area for the legal community and risk adjustment community to figure out,” he says.
Compliance activities: Another potential risk area is the government turning providers and plans’ own compliance activities against them. The Social Security Act requires that entities return overpayments that are identified within 60 days. Whistleblowers and the DOJ have brought cases using the entity’s own audit practices against them if, for example, the entity did not initiate appropriate remediation through deletes, didn’t submit deletes in time, or didn’t go far enough in their investigation, according to Christ.
“I think one of the things the industry is going to continue to struggle with and needs a significant amount of guidance on is, how much should I self-police? How should I self-police? How much documentation do I need for good faith efforts? What do I do if I find an issue and how far do I keep going? None of that is defined very well in the regulations or case law. It’s possible 2020 is going to give us more insight into at least what the government’s theories are in that regard,” he says.
OIG audits: For the last two years the OIG has been conducting its own targeted audits of health plans. These are very different from CMS Risk Adjustment Data Validation (RADV) audits. The OIG is targeting some of the largest plans in each of its regions, going onsite and spending nearly a week with the health plan reviewing their entire risk adjustment process, including coding, policies and procedures and sample RAPS data.
“There is a real question on what the OIG is looking for these audits to accomplish,” Christ says. “The requests tend to be open ended with regard to company materials. Individuals are interviewed and the OIG is focusing on high risk codes almost exclusively…We suspect that the design of the audit was intended to result in high error rates for those audited. So, the one question the industry is left with is, ultimately what’s the OIG’s position on how to remediate the results? Will the OIG provide the industry with a means to refund the money? Will there be a demand letter? Will there be appeals? Or will it just be a letter to CMS and the plan asking both of them to work it out together?”
Overpayment rule appeal: Christ is also keeping a watchful eye for a decision on CMS’ appeal of a legal decision that struck down a rule that required Medicare Advantage insurers to report and return overpayments to the federal government. “We are unsure where that’s going to land but that appeal decision will be significant,” he says. “A lot of people think the CMS interpretation of the overpayment rule was not industry-friendly.”
The language and preamble of the rule requires organizations to identify, report and return any overpayment “after reconciliation” within 60 days after the date on which the overpayment was identified. The issue, Christ says, is that it’s difficult to identify the root cause of a problem, solve it, and issue a delete file within 60 days.
“It’s a very onerous rule,” he says. “We’ll see whether the appeal is successful or not. If it’s not successful and the rule remains struck down, we’ll see whether CMS pushes out a new overpayment rule that will be more equitable to risk adjustment and timing. It’s an interesting development to watch.”
CMS-RADV audits: Payers are also waiting for CMS to issue a final rule regarding audits of Medicare Advantage (MA) plans. CMS has proposed it will extrapolate data generated from RADV audits dating back to 2011 without the use of a fee-for-service adjuster to offset the error rate. CMS said it would audit up to 201 enrollees in any given plan and then extrapolate the audit results across the plan’s entire MA population. Additionally, CMS has modified its RADV audits to now focus on smaller, more targeted cohort populations that tend to be very sick patients.
“A lot of plans are concerned, especially those who tend to focus on more high-risk populations,” Christ says. “CMS has not provided much guidance on how it intends to extrapolate and what it’s going to do with the results. I think there will be a long series of appeals...This will have a major impact on the industry, and RADV appeals will certainly divert a significant amount of the internal and third-party resources during the first round of appeals.”
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