Staying on the Right Side of the (Medicare) Law

A well-crafted compliance plan will help you put auditors and investigators in their place — and keep them out of yours.

By Rene Luthe, Senior Associate Editor

At the risk of stating the obvious, Medicare compliance is tricky. There's no doubt you need a plan. Knowing that you need one, however, and actually obtaining one that you are certain covers all the bases, are two different things.

In 1999, when Susanne Standing, practice administrator for Country Hills Eye Center in Ogden, Utah, adopted her practice's Medicare compliance plan, she says she didn't know any other local practices with one. However, as further Medicare cuts loom, it is more crucial than ever that your compliance plan enables your practice to optimize reimbursements and keep you on the right side of the law.

“If you're not taking advantage of every penny you can get, you're going to be out of business, because there are so many cuts,” says Sue Loen, practice administrator at Bucks-Mont Eye Associates Sellersville, Pa., and member of the American Academy of Ophthalmic Executives (AAOE), the practice management partner of the AAO.

Meanwhile, penalties are becoming more formidable. Now, explains attorney Alice Gosfield, of Philadelphia, anti-kickback violations turn into false claims if they are not repaid and the claim resubmitted. And under healthcare reform legislation, a practice has 60 days from the identification of a problem to repay the money to CMS.

The good news, however, is that you can obtain model compliance shells from both the federal government and medical societies at no cost. These plans are both detailed and do-able. Just be sure to customize them for your practice. Keep in mind that having a plan on paper is only the beginning. This article offers advice that will keep your practice in Medicare's good graces.

To Get You Started

Before Medicare offered detailed guidelines, many practices simply were not clear on what the content of a compliance plan should consist of, Ms. Standing says. But the “shell” available on the CMS Web site, in the form of a 13-page pdf, is detailed. “They can plug in their own pertinent information,” she explains. “That's an excellent start. It has the nuts and bolts of everything you would need.” The Web site of the Office of the Inspector General (OIG) also offers guidance tailored to individual and small-group physician practices.

Ms. Gosfield reports the OIG has MedLearn programs “for all kinds of things,” as well as podcasts. And while the CMS Web sites are “incredibly unwieldy,” she says they do contain valuable information. The medical specialty societies, such as the AAO and ASCRS, also offer guidance. For practices with a practice administrator, the Medical Group Management Association (MGMA) offers a lot of material, she says.

Kevin Corcoran, president of Corcoran Consulting Group, believes the information available from these sources is comprehensive; a lawyer is required only for situations or issues not otherwise covered. “Save your money; a lot of material is standard and broadly applicable,” he says. “There are a great many resources available through these wonderful associations, so check with them first.”

Not a Dust Collector

However, as Mr. Corcoran points out, many practices believe that merely having the document indemnifies them. It doesn't. Ms. Loen agrees. She sees a widespread confusion about what Medicare compliance means. A plan, she says, is something practices need to have in place to make sure they are compliant with coding on claims. Many practices lack such a plan. “Knowledge is wealth, in this case, and people just don't know what it involves,” she says.

It's really two rules. The first thing is, do it right. The second is, if you make a mistake, clean it up.
— Alice Gosfield

Effectively, a good compliance plan is simple, but not easy. “It's really two rules,” Ms. Gosfield says, “The first thing is, do it right. The second is, if you make a mistake, clean it up.” She explains obeying these two rules involves having a plan that answers these three questions:

• What makes us think we are doing this correctly?
• If it's not right, what will it take to fix it?
• Once we fix it, how will we know it stays fixed?

In Ms. Gosfield's experience, it isn't uncommon for the answer to the first question to be “Because the last employee taught us to do it that way,” and for the latter two questions not to have answers.

Ms. Standing offers a more detailed description of what a compliance plan should cover, including establishing lines of communication and a response to special agents' visits for the purposes of investigating allegations of fraud and abuse. (What the Compliance Plan Needs to Cover, page 46.)

Tips for Writing the Plan

Ms. Gosfield advises practices begin by writing the compliance plan in the active voice. Instead of “Records will be reviewed,” write, “X will review records on this schedule.”

The practice should designate one employee to sign off on claims before they are submitted, Ms. Loen says. But who should that person be? There's some disagreement on that. Ms. Gosfield reports that OIG's model compliance guidelines state that compliance should be the responsibility of the practice shareholders. “And there should be a compliance officer who is one of the physicians. This is the life and death of the group,” she says. The compliance officer should be someone who has some “skin in the game.”

Ms. Loen, on the other hand, feels the compliance office should not be managed by one of the physicians, because the job is simply too detailed and time-consuming on top of their medical duties. She says the job may be too much for the practice administrator, as well.

That Special Someone

Whomever you choose to serve as compliance officer, Ms. Standing advises selecting a trustworthy employee whom you expect to stay with the practice long term. The candidate should also be knowledgeable about coding. She advises requiring a coding examination that the AAOE and the Joint Commission on Allied Health Personnel in Ophthalmology administer. “It ensures they know what they are doing,” she says.

Ms. Loen, who started out in a billing capacity, agrees such knowledge is valuable in a compliance officer. After all, if a practice can't obtain optimal reimbursement for the services it provides, it won't stay afloat, she notes. The trouble is coding and billing are “kind of a gray area that take years to really learn,” Ms. Loen says.

A good compliance officer needs an additional quality, Ms. Loen says. “I think people who really enjoy billing — there's a little something off in their brains. You have to be a certain kind of person to enjoy that aspect of the practice, because it's really intricate, and you have to be a little bit anal retentive to do it, and you have to be willing to learn that nothing is black and white; there's a lot of gray.”

This person must be able to use her or his coding expertise to interpret codes and have the confidence to stand by that interpretation. And while Ms. Loen notes there is “always room for individual discernment,” that's also the reason why one person must have the final decision on coding.

Assemble a Team

Still, the compliance officer cannot and should not shoulder the entire burden of compliance. It takes teamwork to achieve good compliance, Mr. Corcoran says. A committee that represents all practice segments can achieve this. Technicians or medical assistants contribute their perspective. Billing and administrative staff have a complementary view, as does IT, particularly for a practice using EMR, he points out. “They all have a point of view that is a little bit different,” Mr. Corcoran says.

Ms. Standing agrees. Her own compliance committee includes a physician, the director of quality and customer service, a clerical supervisor, clinical coordinator, an optical manager and surgical services coordinator, among others. “Hopefully this ensures that communication flows well and that all issues at all times are addressed on an ongoing basis,” she says.

It is important that the committee includes one person who has the power to confront — and, if necessary, terminate — an employee whose compliance misdeeds could land the practice in legal hot water, Mr. Corcoran says.

“There comes the day you have a serious situation: Doctors A, B, C, and D are all good guys. Dr. E, however, is not. Who is going to tell him?” Mr. Corcoran asks. “The head of billing? Probably not. Your IT guy? Probably not. Your administrator? Maybe. But if the administrator is very young and inexperienced, a confrontation with a forceful physician might not be effective. So who's going to tell him?” Clearly, a physician peer with a position of authority on the compliance committee would have the power and confidence to cope with this situation.

Once your committee members are identified, they need to meet to develop, maintain and monitor compliance. While no one wants another meeting, the functions involved certainly require getting together more than once a year. How often is sufficient? The consensus seems to be monthly to quarterly, depending on the size of the practice. “It can also depend on whether they have an optical shop and a contact lens department, etc.,” Ms. Standing says.

The Education Mission

Outside of committee meetings, the compliance officer will be busy implementing and monitoring compliance on the ground. For starters, someone has to review the charts, Mr. Corcoran says. While having an EMR eliminates legibility challenges, it raises new issues that must be addressed, so chart review is a good way to identify them.

“Legible, but incoherent,” is Mr. Corcoran's take on it. Compliance “is not just an analysis process; it's a fix-it process,” he says. The fix-it part begins with chart review. The compliance officer will soon find that even legible words don't necessarily make sense. Besides not having medical degrees, some ancillary staff may not be at all familiar with ophthalmic terminology, Mr. Corcoran points out.

“I think of medical vocabulary as a potential showstopper; confusion about terminology will stop things.” He suggests requiring staff to achieve specific relevant credentials, such as COA or OCS, as a condition for promotion and/or pay raises. “Set some goals for people,” he says. “After all, compliance is a goal.”

When the compliance officer asks the relevant employees to fix their charts, the realization will soon come that some training of technicians, scribes and front-office staff is in order. Think of this as a teaching opportunity, Ms. Loen says.

Instruct and Repeat

Understand, however, that a training session or two or a certification process will not automatically make your charts perfect or your practice compliant. Expect to review and remind often. “Habits are hard to break, especially if you've had them for 20 years,” Mr. Corcoran says.

After the physicians and staff gets instruction on how to document properly and accurately code a claim for reimbursement, the compliance officer can expect to find everyone says they understand the instructions and answer affirmatively when asked if they did as instructed, Mr. Corcoran says. Yet, when the compliance officer checks the charts, she will find that the task has not been done correctly. Very likely the excuse will be “I forgot,” or “We were so busy and I didn't have time.” But when you check the next day, still no improvement.

So get used to the idea that the compliance officer is going to have to repeat lessons. “It's only human nature,” Mr. Corcoran explains.

There comes the day you have a serious situation: Doctors A, B, C, and D are all good guys. Dr. E, however, is not. Who is going to tell him? The head of billing? Probably not.
— Kevin Corcoran

Nonstop Learning and Training

The compliance officer should train herself as well. Ms. Loen says having a consultant come in and instruct the compliance officer in how to audit charts is wise investment for a small practice. “That's a very useful tool that you will never, ever lose money on, because auditing is a hard thing to learn,” she says.

Once you know how to audit, devise a review plan. “You pull so many charts, every so often, for each doctor of a variance of codes,” Ms. Loen says. “For example, I'm going to pull 10 E&M codes for the last quarter, and do it every quarter. I'm going to pull 10 eye codes — if anyone is doing consultations anymore, pull 10 of them and look at them.” Audit those charts to get an idea of that doctor's accuracy, then go on the next, she advises.

Investing in a consultant enables staff to get better training in how to code a chief complaint or check a patient history. Once a compliance officer is confident that a doctor knows what he or she is doing, she can review that individual less frequently. “I think if you review a specific physician's charts quarterly, you are probably good,” Ms. Loen adds.

Another source of training is association meetings. Ms. Loen feels that if she comes out of an AAOE meeting with one new idea, it was worth her time. By taking advantage of these resources, you will be able to find the compliance balance so essential to the modern medical practice: “Getting as much as you can out of it, while still being on the right side of the law,” as Ms. Loen puts it. OM