Once You STOP Accepting Medicaid/Care, How Much Time Has to Pass to Know You Will Not Be Audited? (For Past Nitpicking Documentation Errors)
I had a client, a dentist, ask me today how long does he have to wait until he need not worry about government, regulatory audits after he decides to not accept Medicare or Medicaid any more. It made me sad. It made me remember the blog that I wrote back in 2013 about the shortage of dentists that accept Medicaid. But who can blame him? With all the regulatory, red tape, low reimbursement rates, and constant headache of audits, who would want to accept Medicare or Medicaid, unless you are Mother Teresa…who – fun fact – vowed to live in poverty, but raised more money than any Catholic in the history of the recorded world.
What use is a Medicaid card if no one accepts Medicaid? It’s as useful as our appendix, which I lost in 1990 and have never missed it since, except for the scar when I wear a bikini. A Medicaid card may be as useful as me with a power drill. Or exercising lately since my leg has been broken…
The answer to the question of how long has to pass before breathing easily once you make the decision to refuse Medicaid or Medicare? – It depends. Isn’t that the answer whenever it comes to the law?
By Whom and Why You Are Being Investigated Matters
If you are being investigated for fraud, then 6 years.
If you are being investigated by a RAC audit, 3 years.
If you are being investigated by some “non-RAC entity,” then it however many years they want unless you have a lawyer.
If being investigated under the False Claims Act, you have 6 – 10 years, depending on the circumstances.
If investigated by MICs, generally, there is a 5-year, look-back period.
ZPICS have no particular look-back period, but with a good attorney, reasonableness can be argued. How can you be audited once you are no longer liable to maintain the records?
The CERT program is limited by the same fiscal year.
The Alternative: Self-Disclosure (Hint – This Is In Your Favor)
If you realized that you made an oops on your own, you have 60-days. The 60-day repayment rule was implemented by the Centers for Medicare and Medicaid Services (“CMS”), effective March 14, 2016, to clarify health care providers’ obligations to investigate, report, and refund identified overpayments under the Affordable Care Act (“ACA”).
Notably, CMS specifically stated in the final rule that it only applies to traditional Medicare overpayments for Medicare Part A and B services, and does not apply to Medicaid overpayments. However, most States have since legislated similar statutes to mimic Medicare rules (but there are arguments to be made in courts of law to distinguish between Medicare and Medicaid).
Have you ever watched athletes compete in the high jump? Each time an athlete is successful in pole vaulting over the bar, the bar gets raised…again…and again…until the athlete can no longer vault over the bar. Similarly, the Center for Medicare and Medicaid Services (CMS) continue to raise the bar on health care providers who accept Medicare and Medicaid.
In February, CMS finalized the rule requiring providers to proactively investigate themselves and report any overpayments to CMS for Medicare Part A and B. (The Rule for Medicare Parts C and D were finalized in 2014, and the Rule for Medicaid has not yet been promulgated). The Rule makes it very clear that CMS expects providers and suppliers to enact robust self auditing policies.
We all know that the Affordable Care Act (ACA) was intended to be self-funding. Who is funding it? Doctors, psychiatrists, home care agencies, hospitals, long term care facilities, dentists…anyone who accepts Medicare and Medicaid. The self-funding portion of the ACA is strict; it is infallible, and its fraud, waste, and abuse (FWA) detection tools…oh, how wide that net is cast!
Subsection 1128J(d) was added to Section 6402 of the ACA, which requires that providers report overpayments to CMS “by the later of – (A) the date which is 60 days after the date on which the overpayment was identified; or (B) the date any corresponding cost report is due, if applicable.”
Identification of an overpayment is when the person has, or reasonably should have through the exercise of reasonable diligence, determined that the person received an overpayment. Overpayment includes referrals or those referrals that violate the Anti-Kickback statute.
CMS allows providers to extrapolate their findings, but what provider in their right mind would do so?
There is a six-year look back period, so you don’t have to report overpayments for claims older than six years.
You can get an extension of the 60-day deadline if:
• Office of Inspector General (OIG) acknowledges receipt of a submission to the OIG Self-Disclosure Protocol
• OIG acknowledges receipt of a submission to the OIG Voluntary Self-Referral Protocol
• Provider requests an extension under 42 CFR §401.603
My recommendation? Strap on your pole vaulting shoes and get to jumping!
One of the best proactive measures to protect yourself from a Medicaid audit (all this goes for all types of providers… hospitals, psychiatrists, dentists…) is to conduct a self-audit. Without question. That way you can identify potential issues and fix them; thereby, in the long run, limiting your liability to a recoupment. But…TAKE HEED!
If you are going to self-audit, then fix any errors found. Do not find errors and do nothing. If you neglect to fix the errors found in a self-audit, then the penalty for not fixing a known error COULD be harsher than never knowing the errors.
Remember the fable, “The Hawk, the Kite, and the Pigeons?”
THE PIGEONS, terrified by the appearance of a Kite, called upon the Hawk to defend them. He at once consented. When they had admitted him into the cote, they found that he made more havoc and slew a larger number of them in a single day, than the Kite could possibly pounce upon in a whole year.
Avoid a remedy that is worse than the disease.
I am definitely not comparing the Division of Medical Assistance (DMA) to a kite. Maybe Aesop should have used two, equally, scary animals, but, in Aesop’s defense, I’m sure that the pigeons were terrified of the kite.
As for the pigeons…A Wisconsin-based medical clinic conducted an internal audit of 25 claims per physician. Good job! Be proactive!
However, the clinic discovered that 2 physicians were up-coding over 10% of their claims. As required, the clinic returned overpayments for those specific, up-coded claims. So, obviously, whoever conducted this self-audit on the Wisconsin clinic informed the 2 physicians that their abhorrent billing practices were discovered and that they should immediate cease all up-coding, right? Or, at the very least, continued to monitor these 2 physicians’ billings, right?
The clinic conducted no more self-audits on those 2 physicians. In fact, the clinic stopped conducting self-audits all together. Furthermore, the clinic allowed those 2 physicians to continue billing without supervision. Ugh!
As expected, a former employee filed a whistleblower lawsuit against the clinic. The lawsuit is pending, so we have no way of knowing the extent of whatever penalty this clinic may suffer. But, the warning is out! If a practice is billing Medicaid incorrectly, discovers the errors, and fails to take corrective action it COULD be considered fraud.
If you want to read the whole article click here.
The moral of the story? Avoid a remedy that is worse than the disease.