Anesthesia and Chronic Pain Compliance Risk Areas: Compliance Advice from Benjamin Franklin and Francis Bacon

Vicki Mykowiac, Esq.
Principal, Myckowiak Associates, P.C., Detroit, MI
From the Spring 2013 issue of The Communiqué

Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.” It is certain that Mr. Franklin was not speaking about the value of preemptive compliance work, yet the old adage aptly applies to the work done by physician groups to prevent allegations of fraud or abuse.

The Office of Inspector General for the Department of Health and Human Services (“OIG”) recently reported that the government expected to set a record of $6.9 billion in recoveries from its investigations and enforcement actions for its fiscal year 2012.¹ As the chart in Figure 1 shows², this $6.9 billion is part of a trend of continuously increasing recoveries.

For this reason, many physician groups have implemented compliance programs designed to minimize the chances that the group will commit what the government perceives to be fraud or abuse. One key to effective compliance is an understanding of those issues of particular importance to the government.

There are many ways that the government signals areas of interest for particular specialties. This article will focus on the areas identified for review that are relevant to anesthesia and chronic pain practices in the OIG Work Plan and the Recovery Audit Contractor Program.

The OIG Work Plan

Each year the OIG publishes a Work Plan that is the culmination of work done throughout the previous year to: (1) assess relative risks in the programs for which the OIG has oversight authority; (2) identify the areas most in need of attention; and (3) set priorities for the sequence and proportion of resources to be allocated in the upcoming year(s).³ Compliance-savvy groups view the Work Plan as a roadmap to ongoing OIG focus areas for fraud and abuse.

Anesthesia Focus Area

Traditionally anesthesia has not been prominently included in the Work Plan. However, the 2013 Work Plan includes OIG plans to review anesthesia modifiers reported for the level of service provided:

We will review Medicare Part B claims for personally performed anesthesia services to determine whether they were supported in accordance with Medicare requirements. We will also determine whether Medicare payments for anesthesiologist services reported on a claim with the “AA” service code modifier met Medicare requirements. Physicians report the appropriate anesthesia modifier to denote whether the service waspersonally performed or medically directed. The service code “AA” modifier is used for anesthesia services personally performed by an anesthesiologist, and the “QK” modifier is used for medical direction of two, three, or four concurrent anesthesia procedures by an anesthesiologist. The QK modifier limits payment at 50 percent of the Medicare-allowed amount for personally performed services claimed with the AA modifier. Payments to any service providerare precluded unless the provider has furnished the information necessary to determine the amounts due.⁴

Chronic Pain Practice Focus Areas

Unlike anesthesia, issues relating to chronic pain practices have been included almost yearly in the Work Plan. For example, in the 2008 Work Plan the OIG directly targeted pain practices:

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.⁵

Likewise, in 2010 the OIG Work Plan specifically singled out payment for transforaminal epidural injections:

Based on these statistics, the OIG indicated it would review Medicare claims to determine the appropriateness of Medicare Part B payments for transforaminal epidural injections and determine whether there were policies and safeguards to prevent inappropriate payments for transforaminal epidural injections.⁶

While issues raised in the 2013 Work Plan are not specific to pain alone, there are a number of issues that will impact pain practices including:

• Questionable Billing for Electrodiagnostic Testing: The OIG will determine the extent to which Medicare utilization rates differ by provider specialty, diagnosis, and geographic area for needle electromyogram and nerve conduction testing.
• Place-of-Service Coding Errors: The OIG will review physician coding for services performed in ambulatory surgical centers and hospital outpatient departments to determine whether they properly coded the place of service. Medicare pays a physician a higher amount when a service is performed in a nonfacility setting, such as a physician’s office, than it does when the service is performed in a hospital outpatient department or, with certain exceptions, in an ambulatory surgical center.
• Evaluation and Management Services/EHR issues: The OIG will review multiple E/M services for the same providers and beneficiaries to identify electronic health records (EHR) documentation practices associated with potentially improper payments. Medicare contractors have noted an increased frequency of medical records with identical documentation across services. Medicare requires providers to select the code for the service on the basis of the content of the service and have documentation to support the level of service reported.
• Evaluation and Management Services—Use of Modifiers During the Global Surgery Period: The OIG will review the appropriateness of the use of certain claims modifier codes during the global surgery period and determine whether Medicare payments for claims with modifiers used during such a period were in accordance with Medicare requirements. Prior OIG work found that improper use of modifiers during the global surgery period resulted in inappropriate payments. The global surgery payment HHS includes a surgical service and related preoperative and postoperative E/M services provided during the global surgery period.⁷

Practical Advice

Compliance Officers for anesthesia and pain practices should carefully review the OIG Work Plan for 2013 to determine if their practices are providing services included in the OIG focus areas. For practices that are providing services in an OIG focus area, the chance of being the subject of a Medicare audit or other administrative review is increased. Therefore, Compliance Officers should conduct audits of services provided within the OIG focus areas to ensure that the medical record documentation is complete and accurate, the medical record documentation supports the billed claim, and the services were provided in a manner consistent with Medicare policy.

Recovery Audit Program (RAC) Audits

The RAC program’s mission is to identify and reduce improper Medicare payments through detection and collection of overpayments coupled with the implementation of actions to prevent future improper payments.⁸ The program is carried by four (4) private companies under contract with the government to conduct post-payment audits. The companies are:

• Region A: Performant Recovery(CT, DE, DC, ME, MD, MA, NH, NJ, NY, PA, RI and VT)⁹
• Region B: CGI Federal Inc. (IL, IN, KY, MI, MN, OH and WI)¹⁰
• Region C: Connolly, Inc. (AL, AR, CO, FL, GA, LA, MS, NM, NC, OK, SC, TN, TX, VA, WV, Puerto Rico and U.S. Virgin Islands)¹¹
• Region D: HealthDataInsights,Inc. (AK, AZ, CA, HI, ID, IA, KS, MO, MT, ND, NE, NV, OR, SD, UT, WA, WY, Guam, American Samoa and Northern Marianas)¹²

These RAC audit contractors must submit issues to the government for approval and must then identify issues that will be subject to audit on their websites.

Anesthesia Focus Areas

Connolly, Performant and Health-DataInsights have published the following anesthesia issues for audit:

• Anesthesia–CRNA or anesthesiologist overpaid: “Anesthesia provided by a CRNA (Certified Registered Nurse Anesthetist) and Anesthesiologist (physician) without a 50% cutback as per Medicare guidelines involving CRNA’s supervised by anesthesiologists.” (Connolly)
• Anesthesia care package E&M Services: “Under the NCCI Edit rules, the anesthesia care package consists of preoperative evaluation, standard preparation and monitoring services, administration of anesthesia, and post-anesthesia care. Anesthesia CPT codes 00100 to 01999 include Evaluation and Management (E&M) services rendered on the same day of the anesthesia procedure. If the only service provided in management of epidural/subarachnoid drug administration, then an E&M service should not be reported in addition to CPT code 01996.” (HealthDataInsights and Performant)

Pain Focus Areas

The RAC auditors have published numerous issues relevant to chronic pain practices:

• Inappropriate payments for transforaminal epidural injections: “Local Coverage Determination policy has indicated specific conditions or diagnoses that are covered for Transformational Epidural Injections. Carrier claims have been identified where the first-listed and/or other diagnosis codes do not match to the covered diagnosis codes in the LCD policies.” (Connolly)
• Trigger point injections – excessive units: “Only one Trigger Point Injection CPT Code can be billed per date of service.” (CGI Federal)
• Excessive units of facet joint blocks: “CPT Codes 64492 and 64495 should only be billed once per date of service.” (CGI Federal)
• Facet joints denervation billed without guidance: “In accordance with [local coverage determinations], Facet Joint Denervation requires placement of a needle in the facet joint under fluoroscopic or CT guidance.” (CGI Federal)
• Transforaminal epidural injection billed with guidance: “Per CPT Manual 2011, CPT Codes 77001 – 77003 and 77012, are not to be reported with CPT Codes 64479, 64480, 64483 and 64484.” (CGI Federal)
• Place of service errors for physician claims for services performed in an ASC or outpatient hospital: “We will review physician coding the place of service on claims for services performed in ambulatory surgical centers (ASC) and hospital outpatient departments. Federal regulations …provide for different levels of payments to physicians depending on where the services are performed. Medicare pays a physician a higher amount when a service is performed in a non-facility setting, such as a physician’s office (POS 11) than it does when the service is performed in a hospital outpatient department (POS 22) or, with certain exceptions, in an ASC (POS 24).” (Connolly, CGI Federal, and HealthDataInsights)
• Evaluation and management services during the global surgery periods: “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. The global surgery fee includes payment for E&M services provided during the global surgery period.” (Connolly, CGI Federal, and HealthDataInsights)
• New patient visits: “Identification of overpayments relating to the same provider group and specialty billing more than one new patient Evaluation and Management service within a 3 year period of time.” (Performant, Connolly, CGI Federal, and HealthDataInsights)

Practical Advice

Compliance Officers for anesthesia and pain practices should carefully review the website for their RAC auditing company to determine if their practices are providing services in identified audit areas. For practices that are providing services under review, the chance of being the subject of a RAC or other Medicare audit is increased. Therefore, Compliance Officers should conduct focused audits of services provided within the RAC audit areas to ensure that the medical record documentation is complete and accurate, the medical record documentation supports the billed claim, and the services were provided in a manner consistent with Medicare policy. Moreover, Compliance Officers should check the website for their RAC contractor on a regular basis to identify additional relevant review areas that may arise.

Conclusion

Francis Bacon first stated that “knowledge is power.” While it is certain that Bacon was not speaking about the value of knowing about government fraud and abuse focus areas, the statement aptly applies to the preemptive compliance work that can be done by physician groups that understand government concerns. Compliance Officers for anesthesia and pain groups would do well to live by the advice of Mr. Franklin and Bacon: know which areas the government is interested in and take practical steps to ensure that the group prevents negative government audit results and inquiries through proper documentation and billing for services.

¹ Office of Inspector General Semi Annual Report to Congress, April 1, 2012 - September 30, 2012 at https://oig.hhs.gov/reports-and-publications/semiannual/index.asp.
² Office of Inspector General Semi Annual Report to Congress, April 1, 2012 - September 30, 2012, page 38 at https://oig.hhs.gov/reports-and publications/semiannual/index.asp.
³ Office of Inspector General Work Plan for FY 2013, page iii https://oig.hhs.gov/reports-and-publications/archives/workplan/2013/WP00-Intro+Contents.pdf
⁴ Office of Inspector General Work Plan for FY 2013, page 21
⁵ Office of Inspector General Work Plan for FY 2008, page 12 at http://oig.hhs.gov/publications/docs/workplan/2008/Work_Plan_FY_2008.pdf
⁶ Office of Inspector General Work Plan for FY 2010, page 19 at http://oig.hhs.gov/publications/docs/workplan/2010/Work_Plan_FY_2010.pdf
⁷ Office of Inspector General Work Plan for FY 2013, pages 23 -25 at https://oig.hhs.gov/reports-and-publications/archives/workplan/2013/WP01-Mcare_A+B.pdf
⁸ http://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/recovery-audit-program/index.html?redirect=/rac/
⁹ https://www.dcsrac.com/providerportal.aspx
¹⁰ https://racb.cgi.com/default.aspx
¹¹ http://www.connolly.com/healthcare/Pages/CMSRACProgram.aspx
¹² ps://racinfo.healthdatainsights.com/home.aspx?ReturnUrl=%2f

Vicki Myckowiak, Esq., is a principal of Myckowiak Associates, P.C., Detroit, MI. Ms. Myckowiak has been practicing healthcare law for over 25 years and focuses her practice on representing anesthesia and chronic pain practices on issues including compliance programs, reimbursement, third party payor coverage issues, Medicare audits, commercial payor audits, fraud and abuse defense, contracting, chronic pain informed consent, and HIPAA. Ms. Myckowiak has helped implement and maintain compliance programs for dozens of anesthesia and chronic pain practices across the country. She also works extensively with third party billing companies. A graduate of Franklin and Marshall College and The National Law Center at George Washington University, Myckowiak is a member of the American Bar Association, the American Health Lawyers Association, the Health Care Compliance Association, and the Michigan Society of Healthcare Attorneys. Ms. Myckowiak frequently writes and speaks nationally on trends in health care law including contracting, fraud and abuse, government enforcement efforts and regulatory initiatives, and compliance programs. She can be reached at vicki.mycklaw@gmail.com.