Compliance Imperatives For 2023: Priorities For Anesthesia And Pain Practices

"Plan the work, and work the plan," as the old saying goes. Where would any of us be without taking the time to plot a strategy for success as it pertains to education, career, relationships or even the annual summer excursion. Everything worth attaining requires at least some measure of forethought.

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) agrees with the above sentiment. As HHS's watchdog agency, the OIG seeks to ferret out fraud, waste and abuse within federal healthcare programs, such as Medicare. To that end, the OIG's website contains an official "Work Plan," which outlines the areas the agency intends to focus on over a specified period of time. According to the OIG, adjustments are made throughout the year to the Work Plan in order to "meet priorities and to anticipate and respond to emerging issues with the resources available."

As we are already at the beginning of a new year, we thought this might be an appropriate time to take a deeper look at the implication of the OIG's Work Plan for medical groups, generally, and then to review some of the current priorities listed therein.

Plan Implications

The OIG Work Plan sets forth various projects, including agency audits and evaluations, that are either in the planning stages or already underway. Projects listed in the Work Plan pertain to the full spectrum of HHS agencies, including the Centers for Medicare & Medicaid Services (CMS), the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), as well as others. The OIG also plans work related to issues that cut across departmental programs, including state and local governments' use of federal funds, in addition to projects that are statutorily required.

The implication of all this is that this particular government agency is tasked with scrutinizing the medical claims and record documentation and business arrangements of doctors and non-physician practitioners (NPPs) to determine if they've gone askew of federal laws and regulations. While the OIG's mandate is broader than this, the audit and investigation component is what keeps group compliance officers on their toes. With that in mind, let us take a look at some of the items presently found on the OIG's Work Plan that may have implications for anesthesia or chronic pain providers.

Telehealth Risk Factors

In a document released this month, the OIG identified seven "data points" that may raise questions of fraud and abuse as it concerns the utilization and submission of telehealth services. Those data points include the following billing patterns:

1. Billing both a telehealth service and a facility fee for more than 75 percent of their telehealth visits.
2. Billing telehealth services at the highest, most expensive code for every visit. The OIG further noted that many of the providers that billed exclusively at the highest code for each visit also billed for additional time spent during the visit.
3. Billing telehealth services for more than 300 days a year, averaging to more than 25 days per month for each provider (the median for all providers who billed telehealth services was 26 days of the year).
4. Billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for more than 20 percent of telehealth services.
5. Billing an average of more than two hours of telehealth services per visit (the median visit lasted 21 minutes).
6. Billing telehealth services for more than 2,000 beneficiaries in a year. Yes, that number is correct. According to the OIG, the median was 21 beneficiaries for all providers who billed telehealth services. It turns out that 76 providers each billed for telehealth services for at least 2,000 beneficiaries in a year—a practice that may indicate the billing of unprovided services or low quality of care.
7. Billing for a telehealth service and ordering medical equipment for at least 50 percent of their beneficiaries (the median was three percent of beneficiaries).

The OIG counsels that the above factors "can be incorporated into a provider's yearly risk assessment and audit plan." They further note the agency used "very high benchmarks to identify suspected fraud and abuse" and that medical group compliance programs may want to use lower thresholds when reviewing their own data for claims that warrant further review.

Opioid Treatment Review

Some of our readers may be involved in services meant to alleviate opioid dependency. Among the items in the OIG's current Work Plan is a review of the opioid use disorder (OUD) treatment services that were reimbursed under the bundled payments provided to people enrolled in Medicare. The agency will determine the types, delivery methods (i.e., in person or via telehealth), and frequency of OUD treatment services provided to Medicare enrollees by opioid treatment programs (OTPs) that received bundled payments. Bundled payments for OUD treatment services will be compared with the reimbursement amount of the actual OUD treatment services if the services were not part of the bundled payment. The OIG will also determine whether these services complied with certain Medicare requirements.

Significant Enforcement Trends

According to a January report from the National Law Journal, enforcement trends coming from the U.S. Department of Justice (DOJ) also provide important insight that should be evaluated by each provider group's compliance personnel. These include issues implicating the Anti-Kickback Statute (AKS) and services billed to federal healthcare programs that were not medically necessary. Here are a couple of examples:

1. Management services organizations (MSOs) have been targeted in three DOJ enforcement actions. MSOs are now common tools to permit individuals or entities, including investment organizations that are not licensed healthcare providers, to manage clinical operations of licensed healthcare providers. Provider groups engaging with such organizations will want to ensure their healthcare attorney is consulted on the details of any proposed arrangement to ensure compliance with federal law.
2. The DOJ continues its focus on opioid addiction and is turning up the heat on physicians who prescribe opioids in violation of the Controlled Substances Act (CSA). In some cases, the DOJ has sought temporary restraining orders against physicians pursuant to the CSA to prevent them from prescribing opioids and other controlled substances.

While there were no items on the OIG Work Plan or DOJ hit list that directly targeted anesthesia practices, all providers—regardless of specialty—should be on notice that the government is serious about compliance enforcement. It has funded the OIG to the tune of $453 million, which means the agency is well able to devote significant resources to scrutinizing a provider's claims, business model and patterns of inappropriate behavior where it exits. The best response to such scrutiny is to ensure your corporate compliance plan is current, relevant and being scrupulously followed by all group members. If you have any questions, please contact your account executive or reach out to us at info@anesthesiallc.com.