May 14, 2018

Compliance and risk management have always been of particular importance in anesthesia and pain management.  These areas are, arguably, even more crucial now, given the continuing focus on anesthesia issues in the Office of Inspector General’s (OIG’s) Work Plan, the heightened scrutiny of opioid prescribing practices by OIG and the Department of Justice, and the permanent implementation of the Medicare Recovery Audit Contractor (RAC) program, among other things.

This is why anesthesia professionals should have a good overall understanding of risk areas and trends in anesthesia and pain management on a national level, and why they should stay abreast of developments and priorities in their states and cities as well, Detroit-based attorney Vicki Myckowiak, Esq., said in a presentation at the recent Advanced Institute for Anesthesia Practice Management in Las Vegas.

The priorities of U.S. Attorneys General can vary widely, which means that healthcare fraud and abuse can be a focus of intense activity in some jurisdictions and relatively much less so in others, she said.  Awareness of these local priorities and activity can bolster efforts by anesthesia and pain groups to minimize or eliminate risk and protect their practices. 

Ms. Myckowiak presented several recent cases to highlight key risk areas for anesthesia and pain practices.  We share two of these cases and lessons for anesthesia and pain groups here, and will explore other cases in future eAlerts.

Anesthesia modifiers:  An Iowa anesthesia group and billing company settled with the state and federal governments for $200,000 in 2015 for billing Iowa Medicaid with the AA modifier.  The claims were paid correctly but did not accurately reflect the level of service the anesthesiologists provided.  The state and federal government initially demanded almost $2 million, despite the fact that the payments the anesthesiologists received were not incorrect.  Although the group and billing company were trying to bill correctly, the U.S. Attorney’s office said that the claims immediately became false when the group billed using the wrong modifier.

Takeaways:  Knowing what anesthesia modifiers to use is not always straightforward and clear cut, but investigators are really zeroing in on the correct use of the AA (anesthesia services performed personally by anesthesiologist) and QZ (CRNA service: without medical direction by a physician) modifiers.  “You want to confirm that you’re billing appropriately if the rules are unclear,” Ms. Myckowiak said, acknowledging that “the quest to make sure you’re doing it right has become difficult.”  Be sure you are using the correct anesthesia modifier, but if you aren’t certain, document conversations with contractors and maintain any communication with payers in a central place where the information can easily be retrieved.  If, in a year or two, your group receives notice of a post-payment audit, “if you can’t find the documentation, it’s as if the communication never happened,” she said.

Pre-signing anesthesia records:  In 2013, the University of California-Irvine settled for $1.2 million on allegations that anesthesiologists filled in anesthesia records in advance indicating that they were present during cases.  The lawsuit was brought by a former professor of anesthesiology at the UC Irvine Medical School, who received $120,000 of the settlement.  State inspectors reviewed anesthesia records on site and found numerous instances in which anesthesiologists had signed the record before the case had started, including an instance in which an anesthesia record showed the patient left the operating room at 10:30 am, but inspectors reviewed the record at 9:30 am, when the patient was still in surgery.  The physicians stated they were completing the anesthesia records in advance to “save time” and “facilitate patient flow.”

Takeaways:  Anesthesia providers cannot pre-sign anesthesia records.  Groups should monitor providers’ records to ensure that pre-signing is not taking place, and take corrective action if it happens.  One red flag that a record has been pre-signed is when the name of one anesthesia provider is crossed out and another is put in its place.

“From a whistleblower perspective, this is really something you want to keep on top of,” said Ms. Myckowiak.  It might be tempting to assume pre-signing records is not a major issue because you know the patient is being taken care of, she said, “but the problem is it’s not accurate.  When you do it in advance, you don’t really know that the patient will be taken care of, or which physician will be providing the care.  You’re filling in the record as if you have a crystal ball, and the government sees that as problematic."

Resources

Ms. Myckowiak suggested the following resources for more information on cases and focus areas:

Office of Inspector General:  provides information on criminal, civil and state enforcement actions; advisory opinions; fraud alerts; OIG semi-annual reports; and OIG Work Plan current priorities.

https://oig.hhs.gov/fraud/enforcementactions.asp

U.S. Department of Justice:  provides resources and case highlights.

https://www.justice.gov/

Branch Offices for the U.S. Department of Justice:

http://www.justice.gov/usao/offices/index.html

With best wishes,

Tony Mira
President and CEO