OIG Workplan 2008: Interventional Pain Procedures Included

Abby Pendleton, Esq. and Jessica L. Gustafson, Esq.
Wachler & Associates, P.C.

As part of our desire to keep both clients and readers up to date, the Communiqué has been printing compliance information since its inception. In the Compliance Corner, we will now formally keep you abreast of the various compliance issues and/or pick out a topic that would be of interest to most of our readers.

On October 1, 2007, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued its 2008 annual Work Plan, which outlined the key focus areas and projects the OIG intends to pursue during the 2008 fiscal year (FY 2008). The OIG Work Plan is available in its entirety from the OIG website.¹

Approximately 80 percent of the OIG’s resources are devoted to projects within the Medicare and Medicaid programs. These projects include audits, evaluations, investigations, and legal activities. Although the 2008 Work Plan outlines the OIG’s intended areas of activity for the fiscal year ahead, the OIG also has noted that work planning is a dynamic process that continues after the publication of its annual Work Plan. Thus, after analyzing current events and emerging issues as they arise, the OIG may add new activities or cancel or delay planned activities, as it deems appropriate.

Of particular importance to the pain management community, the OIG announced that one of its planned focus areas for 2008 would be “Medicare Payments for Interventional Pain Management Procedures”. The OIG also included “Medicare “Incident to” Services” as a planned focus area. Given this information, pain management physicians should be prepared to face increased scrutiny with regard to billing and documentation practices.

Specifically with respect to pain management, the OIG has stated its intentions to dothe following in FY 2008:

We will review Medicare payments for interventional pain management procedures. Section 1862(a)(1)(A) of the Social Security Act provides that Medicare will pay for services only if they are medically necessary. Interventional pain management procedures consist of minimally invasive procedures, such as needle placement of drugs in targeted areas, ablation of targeted nerves, and some surgical techniques. Many clinicians believe that these procedures are useful in diagnosing and treating chronic, localized pain that does not respond well to other treatments. Interventional pain management is a relatively new and growing medical specialty. In 2005, Medicare paid nearly $2 billion for these procedures. We will determine the appropriateness of Medicare payments for interventional pain management procedures and assess the oversight of these procedures.

The OIG also stated its intention to review the medical necessity, documentation, and quality of care for “incident to” services. In general, the Medicare “incident to” rules allow claims by nonphysicians to be submitted under the physician’s provider number if certain specified requirements are met. Notably, the claim will be paid at 100 percent of the Medicare physician fee schedule even though the services were in fact furnished by auxiliary personnel. In general, in order to bill such services, they have to meet particular requirements. For example, services may be covered as “incident to” services if they are: (1) furnished in a non-institutional setting (e.g., a physician’s office) to non-institutional patients; (2) an integral, though incidental, part of the service of a physician in the course of diagnosis or treatment of an injury or illness; (3) commonly furnished without charge or included in the bill of a physician; (4) of a type that are commonly furnished in the office or clinic of a physician; (5) furnished under the direct supervision of the physician (i.e., in the office suite); and (6) furnished by personnel who are employed or contracted by the physician (i.e., the physician/group must pay the cost of the individual). Physical therapy services also have additional requirements/limitations relative to the types of individuals who may perform the physical therapy services.

Given the OIG’s pronouncement regarding its intention to review interventional pain procedures and “incident to services” (which are common in some pain practices), pain physicians are well advised to continue and pursue proactive compliance measures. There are a number of action steps that a physician can undertake to become more informed and to reduce compliance exposure in these areas including, but not limited to:

1. Obtain, review, and follow, if applicable, the local Medicare Carrier’s policy or policies on pain procedures. These policies often contain critical information regarding documentation and medical necessity requirements. Physicians are responsible under the law for knowing the information in these policies.
2. Obtain, review, and follow policies issued by third party payors addressing these services. Physicians must remember that compliance is not specific to Medicare and Medicaid (i.e., failure to follow the rules of other payors can also lead to exposure under various state and federal laws).
3. Obtain and review the Medicare incident to requirements to ensure compliance. For example, physicians must be aware and comply with the on-site supervision requirement. Some physicians mistakenly believe that complying with less stringent public health code supervision requirements is sufficient for billing purposes. This simple mistake can create false claims exposure for a physician.
4. Establish internal documentation criteria for all members of the group to follow with regard to services and procedures.
5. Educate all members of the group as to the importance of documentation and other requirements including medical necessity.

Abby Pendleton, Esq. is a partner and Jessica Gustafson is an associate with the healthcare law firm of Wachler & Associates, P.C. The firm represents healthcare entities and providers with their healthcare legal needs. Ms. Pendleton and Ms. Gustafson specialize in a number of areas, including but not limited to: Medicare and other third party payor audit defense and appeals; compliance; transactional and corporate matters; fraud and abuse analysis; reimbursement and contracting matters; licensure, staff privilege and third party payor de-participation matters; healthcare fraud defense; and HIPAA privacy and security compliance.

¹ OIG Work Plan, Fiscal Year 2008, available at http://www.oig.hhs.gov/publications/docs/ workplan/2008/Work_Plan_FY_2008.pdf (last accessed February 24, 2008.