November 2, 2009

The Department of Health and Human Services’ Office of the Inspector General (OIG) Work Plan for fiscal year 2010 contains one item of specific interest to anesthesiologists and pain physicians who perform transforaminal epidural injections. The OIG intends to review Medicare claims for these procedures to determine the “appropriateness” of payments made. This means that documentation, including the medical record, must demonstrate that the injection was “reasonable and necessary.”

The Work Plan goes on to state, “We will also determine whether there are policies and safeguards to prevent inappropriate payments for transforaminal epidural injections.” The OIG, in other words, will be checking the Medicare Administrative Contractors’ electronic edits and local coverage determinations (LCDs). The Pain Management LCD adopted by National Government Services, Inc. (NGS), although only applicable in NGS states, provides useful guidance on the documentation required for transforaminal epidurals. It recognizes that the block can be performed for diagnostic, therapeutic, or both purposes, and lists the “appropriate” ones:

Transforaminal epidural injections are appropriate for the following diagnostic purposes:

• To differentiate the level of radicular nerve root pain;
• To differentiate radicular from non-radicular pain;
• To evaluate a discrepancy between imaging studies and clinical findings;
• To identify the source of pain in the presence of multi-level nerve root compression; and/or
• To identify the level of pathology at a previous operative site.

It might be necessary to perform injections at two (2) different nerve root levels on the same date of service, whether injected unilaterally or bilaterally, if multi-level nerve root compression or stenosis is present on imaging studies and documented in the medical record, and suspected to be responsible for the patient's symptoms and findings.

Transforaminal injections are appropriate for the following therapeutic purposes:

• Radicular pain resistant to other therapeutic means or when surgery is contraindicated;
• Post-decompressive radiculitis or post-surgical scarring;
• Monoradicular pain, confirmed by diagnostic blockade, in which a surgically correctable lesion cannot be identified; and/or
• Treatment of acute herpes zoster or post-herpetic neuralgia.

Still on the topic of pain medicine and the OIG’s focus, we note that facet joint injections and ultrasound guidance for peripheral nerve blocks are not in the 2010 Work Plan. Both types of procedure were among the high-volume areas included in the 2008 and 2009 Work Plans; facet joints were the subject of a special OIG report in September 2008.

Other sections of the 2010 OIG Work Plan are relevant to physicians without regard to specialty. Those to which anesthesiologists should pay attention include (1) reassignment of claims, (2) place of service and (3) evaluation and management (E&M) services during the global surgical period.

• (1) Reassignment of claims: Medicare law prohibits physicians, in general, from reassigning their right to receive Medicare payments to other parties, subject to a number of exceptions including employment. Although there have been issues in the past relating to agents and factoring, that required anesthesia practices to direct payments through lockboxes, for example, the concern now appears to be true fraud. The OIG notes on p. 18 of the Work Plan: “Investigations in South Florida have revealed schemes in which fraudulent providers obtain identifying information about legitimate physicians and request reassignments on their behalf. We will examine the extent to which physicians are aware of their reassignments.”
• (2) Place of service: Medicare pays a greater amount for services performed in private offices than in ambulatory surgical centers and hospital outpatient departments. The OIG will review claims to determine whether physicians are coding the place of service correctly. Most anesthesiologists who perform H&Ps or pain medicine services do so in the hospital or surgery center rather than in their own offices (for which they pay rent). They should make sure to use the appropriate place of service modifier on their claims.
• (3) E&M services during the global surgery period: According to the Work Plan, “Under the global surgery fee concept, physicians bill a single fee for all of their services usually associated with a surgical procedure and related E&M services provided during the global surgery period. We will determine whether industry practices related to the number of E&M services provided during the global surgery period have changed since the global surgery fee concept was developed in 1992.” This review may affect certain anesthesiologists who bill for E&M services in the global period following post-operative pain procedures.

The OIG’s annual Work Plan identifies general focus areas for the OIG’s investigative, enforcement, and compliance activities and describes specific audits and evaluations to be initiated in the next fiscal year or already underway. As an example, the OIG is going to be reviewing CMS’ oversight of the Recovery Audit Contractors (RACs) to determine whether the RACs are successfully referring potential fraud cases to CMS, not just Medicare overpayments and underpayments. In turn, we can expect the RACs to mine the OIG’s Work Plan for targets for their reviews.

The federal government’s concern with Medicare and Medicaid fraud is well founded. Recent studies place the cost of fraud anywhere from about $60 billion to $175 billion in annual healthcare spending, manifesting itself in everything from fraudulent Medicare claims to kickbacks for referrals for unnecessary services.

One common variety of fraud is submitting claims for services allegedly provided to dead beneficiaries – something that the OIG specifically plans to review in 2010. According to CBS News, Medicare fraud “has become one of, if not the most profitable, crimes in America.” Most commonly, the fraud involves durable medical equipment such as power wheelchairs. A senior FBI agent in South Florida, where Medicare fraud has become more profitable than the illegal drug industry, told 60 Minutes, “all you have to do to get into this business is rent a cheap storefront office, find or create a front man to get an occupational license, bribe a doctor or forge a prescription pad, and obtain the names and ID numbers of legitimate Medicare patients you can bill the phony charges to. There's a whole industry of people out there that do nothing but provide patients."

In Los Angeles, the City of Angels Medical Center recruited homeless people to fill empty beds, cash and meals and billed Medicare tens of millions of dollars for their stays, the October 25th article on Medicare Fraud on the 60 minutes website stated.

The problem is so large that the Obama administration is considering holding a summit of patients, physicians, insurers and law enforcement officials to combat Medicare and Medicaid fraud, a deputy HHS Secretary testified before the Senate Judiciary Committee last week.

The billing errors that anesthesia practices may commit pale in comparison. Nevertheless, it is prudent to note relevant targets in the annual OIG Work Plan and to make sure that one’s documentation methods are sound. ABC’s Compliance Department will be pleased to help clients with questions.

With best wishes,

Tony Mira
President and CEO