The Office of Inspector General (OIG) recently disseminated hundreds of recoupment letters to providers in New York who had percentage-based contracts with billing agents. OIG is seeking recoupment for services spanning a five-year period, plus 9% interest. See example redacted letter from OIG.
42 CFR 447.10 prohibits the re-assignment of provider claims and applies only to Medicaid. It is recommended that you pay your billing agent a flat fee or on a time basis.
North Carolina Medical Society also discourages fee splitting. On the NCMS website, the Society warns that “Except in instances permitted by law (N.C. Gen. Stat. § 55B-14(c)), it is the position of the Board that a licensee cannot share revenue on a percentage basis with a non-licensee. To do so is fee splitting and is grounds for disciplinary action.”
Not all States prohibit fee splitting, and if Medicare or Medicaid is not involved, then we look to state law. But if Medicare or Medicaid is involved, then federal law matters. Some States prohibit fee splitting for doctors, chiropractors, and hospitals, while other states do not prohibit fee splitting for massage therapists. So it is important to know your State’s laws.
Lawyers also have fee-splitting prohibitions. To split fees with a nonlawyer constitutes the practice of law without a license (and probably multiple other ethical concerns).
Physicians, group practices and management services organizations should continue to carefully examine their current and proposed arrangements to ensure compliance with the fee-splitting prohibition applicable to your State. If you are unsure, consult an attorney.
OIG may have started these audits in New York, but, as New York State says “Excelsior” – ever upward – we can be sure that OIG will continue across the country.
OIG Finds Questionable Billing! California Medicaid Dentists: Expect Withholdings or Other Penalties!
Currently, dentists who accept Medicaid are ripe for pickings as targets for regulatory audits from both the federal and state governments. Actually, this is true for any provider that accepts Medicaid. It just happens that, recently, I have noticed an uptick in dental audits both in North Carolina and nationwide. Some dentists, who accept pregnancy Medicaid, may even bear the burden of determining pregnancy prior to a teeth cleaning…however, that is a topic for another day. Although, I tell you what, if my dentist asked whether I were pregnant prior to cleaning my teeth, he may have an abnormally red cheek the remainder of the day and I may join Crossfit.
Generally, dentists tend to not accept Medicaid. The reimbursement rates barely cover overhead. Add high regulatory compliance requirements, the likelihood of undergoing audits, and the government’s robust and zealous desire to tackle fraud, waste, and abuse (FWA), and it is no wonder why most dentists opt to not accept Medicaid. See blog. And blog.
Those dentists (and other providers) that do make the decision to accept Medicaid, these brave and noble souls, are subject to onerous audits; the result of a recent California audit is probably sending shock waves through the California dental community.
335 dental providers in California have been targeted by OIG as having questionable billing issues. Sadly, this is only the beginning for these 335 providers. Now the state will audit the providers, and these 335 providers may very well become the subject of a payment withhold in the near future.
What will happen next?
I will look into my crystal ball, otherwise known as experience, and let you know.
First, the Office of Inspector General (OIG) recently published a report called: “QUESTIONABLE BILLING FOR MEDICAID PEDIATRIC DENTAL SERVICES IN CALIFORNIA.”
One can only imagine by the title that OIG found alleged questionable billing. Otherwise the title may have been, “A Study into Medicaid Billing for Medicaid Pediatric Dental Services,” instead of “Questionable Billing.” With such a leading title, a reader knows the contents before reading one word.
What is questionable billing?
Importantly, before addressing what IS questionable billing, what is NOT questionable billing? Questionable billing is not abhorrent billing practices. Questionable billing is not wasteful billing or abusive billing. And questionable billing is certainly not fraudulent billing. That is not to say that some of these questionable billing will be investigated and, perhaps, fall into one the aforementioned categories. But not yet. Again, these dentists have a long journey ahead of them.
In this context, questionable billing seems to mean that the OIG report identifies dentists who perform a higher number of services per day. OIG analyzed rendering dental providers’ NPI numbers to determine how many services each rendering provider was providing per day. Then OIG compared the average Medicaid payment per kid, number of services per day, and number of services provided per child per visit. OIG determined a “threshold” number for each category and cited questionable billing practices for those dentists that fell egregiously outside the thresholds. Now, obviously, this is a simplistic explanation for a more esoteric procedure, but the explanation is illustrative.
This study of California Medicaid dentists is not first dental study OIG has undertaken. Recently, OIG studied Medicaid dentists in New York, Louisiana, and Indiana. What stands out in the California Medicaid dental study is the volume of dentists involved in the study. In Indiana, OIG reviewed claims for 787 dentists; in New York it reviewed claims for 719 dentists, and in Louisiana, OIG studied 512 dentists’ claims, all of whom rendered services to over 50 Medicaid children.
In California, OIG studied 3,921 dentists.
Why such a difference?
Apparently, California has more dentists than the other three states and more dentists who accept Medicaid. So, if you are Medicaid dentists, apparently, there is more competition in California.
Juxtapose that, in California, in 2012, only 3 periodontists, 3 prosthodontists, 2 endodontists, and 1 oral pathologist provided services to 50 or more children with Medicaid in California.
Going back to the audit findings…
OIG considered dentists who exceeded its identified threshold for one or more of the seven measures to have questionable billing.
OIG identified 329 general dentists and 6 orthodontists out of 3,921 providers as having with questionable billing. But these findings are only the beginning of what will, most likely, become a long and tedious legal battle for these 335 providers. Lumping together so many dentists and claiming questionable billing practices will inevitably include many dentists who have done nothing irregular. Many other dentists, will have engaged in unintentional billing errors and may owe recoupments. But I foresee a very small number of these dentists to actually have committed fraudulent billing.
Here is an example found in the OIG’s report, OIG identified that 108 dentists provided stainless steel crowns to 18% of the children served by these dentists, compared to an average of only 5% of children receiving stainless steel crowns by those served by all general dentists (non-Medicaid).
Another example is that 98 dentists provided pulpotomies to 18% of the children, while the statewide percentage is 5% to undergo pulpotomies.
Do these examples show that 108 dentists providing stainless steel crowns and that 98 dentists providing pulpotomies are improperly billing?
Of course not.
It is only logical that dentists who accept Medicaid would have a significantly higher number of pulpotomies compared to dentists who service the privately insured. Usually, although not always, a Medicaid recipient will have more issues with their teeth than those privately insureds. In order to qualify for Medicaid, the family must live in poverty (some more than others with the expansion of Medicaid in some states). Some of kids in this population will have parents who do not harp on the importance of dental hygiene, thus allowing many kids in this population to have decay in their teeth. Obviously, this is a generalization; however, I am confident that many studies exist to back up this generalization.
Therefore, if you accept my generalization, it makes sense that Medicaid dentists perform more pulpotomies than private insurance dentists.
And stainless steel crowns go hand in hand with pulpotomies. Unless you extract the tooth after the removal of the decay, you will need to provide a stainless steel crown to protect the tooth from future damage.
What will happen next?
OIG admits in its report that “our findings do not prove that providers either billed fraudulently or provided medically unnecessary services, providers with extreme billing patterns warrant further scrutiny.”
Which is precisely what will happen next…”further scrutiny”…
The OIG report recommends to California that it:
• Increase its monitoring of dental providers to identify patterns of questionable billing
• Closely monitor billing by providers in dental chains
• Review its payment processes for orthodontic services
• Take appropriate action against dental providers with questionable billing
It is that last recommendation, taking appropriate action, which will determine the future course for these 335 Medicaid providers. Because, as many of you know if you have followed my blog, the California Department of Health Care Services (DHCS) has a large toolbox with a considerable amount of tools for which it may yield its power against these providers…right or wrong. The same goes for all state Medicaid agencies. When it comes to a Medicaid provider and a Medicaid state agency, there is no balance of powers, in fact, there is only one power. Instead the scales of justice have one arm on the ground and the other raised in the air. There is an imbalance of power, unless you arm yourself with the right allies.
Possible future actions by DHCS:
• Payment suspensions
• Withholds of all reimbursements
• Post payment review
• Prepayment review
And combinations thereof.
DCHS stated that “it will review the dental providers referred by OIG and will determine by December 2015 what appropriate action may be warranted. Should there exist any provider cases not previously evaluated by existing program monitoring efforts, DHCS will take appropriate action through the available channels.”
First, December 2015 is a short timeframe for DCHS to audit 335 providers’ records and determine the proper course of action. So, expect a vendor for DCHS to be hired for this task. Also, expect that an audit of 335 providers in 7 months will have flaws.
These California dentists and orthodontists need to arm themselves with defense tools. And, quickly. Because it is amazing how fast 7 months will fly by!!
The report also states that OIG will be undertaking a study in the future to determine access to dental care issues. I will be interested in the result of that study.
These possible penalties that I already enumerated above are not without defenses.
These 335 CA Medicaid dental providers have administrative remedies to prevent these possible penalties. In other words, these 335 CA Medicaid dental providers do not have to take this lying down. Even though it appears that an imbalance of power exists between the state agency and the providers, these providers have appeal rights.
The second that any of these providers receive correspondence from DCHS, it is imperative that the provider contact its attorney.
Remember, some appeals have very short windows for which to appeal. Do not miss an appeal deadline!!
Remember the NCTracks lawsuit? NCTracks Derailed: Class Action Lawsuit Filed!! Computer Sciences Corporation (CSC) is one of the Defendants in that action here in NC.
Well, Monday CSC was hit with another enormous lawsuit. This one is filed in New York, and the Plaintiff is the U.S. Federal Government.
The feds are accusing CSC of a multi-million dollar Medicaid fraud scheme through its Medicaid billing software CSC implemented in NY.
Here is the press release.
From the complaint: “[T]hese fraud schemes were far from isolated events; instead, they were part and parcel of a general practice at CSC and the City to blatantly disregard their obligations to comply with Medicaid billing requirements.” (Compl. par. 8.)
The feds are seeking treble damages, which permits a court to triple the amount of the actual/compensatory damages to be awarded to a prevailing plaintiff.
According to the lawsuit, CSC has received millions of taxpayer dollars (budgeted for Medicaid) unlawfully and in direct violation of federal billing requirements.
If I were a taxpayer in NY, I would be incensed!!!! If I were a Medicaid recipient of parent of a child receiving Medicaid services, I would be furious!!
Now, take a step back…who is administering our Medicaid billing system here in NC?
This will almost certainly cause the federal government to peer a bit closer at all CSC’s billing software systems in other states…
You know you know someone like this! No matter how horrible the circumstance, they just say positive things. You know, like a Disney character…oblvious to reality. Think about Snow White…her step-mother wants to kill her, she is run into the deep forest by a huntsman who was supposed to kill her, she is told to NEVER return home, she finds 7, extremely, short men with whom she has to live (smelly) and become their maid (dirty), yet she whistles while she works!
So to was Ricky Diaz, the communications director for the North Carolina Department of Health and Human Services (DHHS). In the face of NCTracks’ catastrophic roll out, Diaz says, “While we’re pleased with the success of the new system…”
“Although NC Tracks has processed more claims than it has denied…”
NC Tracks has now processed more than 15 million claims that paid health care providers more than $1.1 billion, according to Diaz.
Diaz said he does not feel as though the state rushed into this transition. “We processed more than 15 million claims and paid health care providers more than $750 million during July,” he emphasized.
And (my personal favorite, in a DHHS News Release after the go-live date)
“NCTracks is on track.”
“Whistle while you work…” Well this cheery, optimistic communications director resigned. His resignation came on the heels of providing reporters false information about the Medicaid debacle. See my blog: “DHHS Blunder Could Cost Millions! “Oops I Did It Again.””
Ricky Diaz announced his resignation today (Wednesday, January 8, 2014) on Twitter, saying he is proud to be joining a small public affairs and media relations firm in Washington, D.C.
“Proud to be joining…” That’s our Ricky…upbeat and positive…”Whistle while you work…”
But now who will provide us with the positive soundbites for the media?
It has now been 10 days with NCTracks. I have gotten almost all complaints. But I have received a couple positive remarks.
Examples of complaints from NC Medicaid providers:
“..I stayed on the phone 57 mins this morning to only be told the complete error description for my denied claim”
“However when I submitted the info it came back with the wrong first names and the wrong email addresses!!!”
“There is no instructions to where to go to submit the claims file. FRUSTRATED!!!”
“We are on day 3 and I have yet put in one claim!”
“Horrible. I’ve tried unsuccessfully to enter claims for days.”
Examples of Compliments from NC Medicaid providers:
“So far, so good. Payments are going through and we’re getting remittance immediately!”
Well, remember on Day 2, I drafted a poll for providers to vote on whether NCTracks was working? I have the results (thus far):
As you can see, 52.17% voted: “I cannot even log on!”
30.43% voted: “No claims have gone through.”
10.87% voted: “Here and there. A few claims have gone through.”
6.52% voted: “Yes, seemlessly.” (Which, BTW, someone pointed out to me that “seemlessly” is misspelled. It should have read “seamlessly.” “Seemlessly” actually means unseemly. So, I apologize.)
Regardless, 3 voters voted that NCTracks is working “seamlessly.” How is NCTracks working so well for some and caused so much frustration and loss of received-revenue for others?
I suggest another poll. In this poll, you can add your own answers.