Urology practices no stranger to legal risk

Urology practices are among the health care entities accused of violating the False Claims Act in recent years. And they’ve paid the price.

In February 2019, the U.S. Department of Justice (DOJ) announced Skyline Urology would pay $1.85 million to settle Medicare overbilling allegations. The government alleged that Skyline, with offices in Southern California, submitted improper claims to the Medicare program for evaluation and management (E/M) services, using modifier −25 to improperly unbundle routine E/M services that were not separately billable from other procedures performed on the same day, according to the DOJ.

Skyline Urology declined to comment when contacted by Urology Times.

Last year, FWC Urogynecology, LLC in Orlando, FL, agreed to pay the government $1.7 million to settle a False Claims Act liability for knowingly misusing Medicare billing codes with modifier −25 to receive additional payment, according to a DOJ July 2, 2018 press release.

Earlier in 2018, the DOJ announced that two California urologists agreed to pay in excess of $1 million to settle allegations that they submitted and caused the submission of false claims to Medicare for image-guided radiation therapy that was referred and billed in violation of the Stark Law and the Anti-Kickback Statute, according to a DOJ release.

Often it’s not criminal behavior but ignorance or lack of oversight that causes practices to bill improperly, according to Jonathan Rubenstein, MD, compliance officer and medical director of coding and reimbursement at Chesapeake Urology Associates, an 87-physician urology group in Maryland. Dr. Rubenstein also chairs the AUA’s Coding and Reimbursement Committee.

“A lot of people are just unaware of proper coding rules,” Dr. Rubenstein said.

Next:Some basicsSome basics

There is a distinction between fraud and a False Claims Act violation, according to David J. Zetter, a certified healthcare business consultant and founder and lead consultant with Zetter Healthcare, Mechanicsburg, PA.

A false claim is a service that is billed incorrectly, and practitioners in most cases are not aware that they’ve billed incorrectly. Urologists and others who commit fraud know what’s right and intend to bill incorrectly to get paid, Zetter said.

Urologists can prevent False Claims Act violations but often don’t take the proactive steps to do so. That’s the case even though taking these steps is law and documented in the Federal Register, according to Zetter.

“Most medical practices that are seeing Medicare or Medicaid patients-even if they’re seeing managed care Medicaid or Medicare Advantage plan patients-are required by law to have a compliance plan in place. Most practices either aren’t aware of this requirement, ignore this requirement, or just feel it is an expense that the practice cannot afford. Either way, it is non-compliant behavior,” Zetter said.

Improper billing

The Centers for Medicare & Medicaid Services cites five major categories of improper billing: no documentation, insufficient documentation, lack of medical necessity, incorrect coding, and other, according to a Dec. 12, 2018 article in Medical Economics.

Mark Painter, CEO of PRS, LLC, in Denver, said documentation and coding problems are not uncommon at urology practices. Bad billing patterns can become systemic and compounded errors add up.

“The rules are complex enough so that you can probably find mistakes in just about every practice,” Painter said.

It’s not just over-coding but under-documenting that’s a problem, Painter said.

Under-documenting can lead to overbilling in payers’ eyes and under-earning for the practice, according to Zetter. There is always money to be found in a chart review.

“When you bill a level 4 office visit and only document for a level 3, that is overbilling. Your documentation does not support the level of service which was billed,” Zetter said.

A physician might do work and neglect to put it in the record. There are plenty of elements that a practitioner receives credit for completing, but many do not know what these elements are, according to Zetter.

“Here’s an example: A doctor sees a patient for the first time and the patient brings in prior records from either their old practitioner or another physician, and the doctor reviews those old records. Doctors get credit for doing that, but a lot of times doctors won’t note they reviewed previous imaging or a previous record,” Zetter said.

Next: Pitfalls of modifier −25Pitfalls of modifier −25

Practices have long struggled to correctly use modifier −25.

The Department of Health and Human Services Office of Inspector General’s (OIG’s) report “Use of Modifier 25,” released in November 2005, found that more than one in three claims using modifier −25 that Medicare allowed in 2002 did not meet program requirements. The result: $538 million in improper payments, according to the report.

Modifier −25 can be difficult to interpret, according to Dr. Rubenstein.

The bottom line is, a zero-day global procedure payment includes everything related to the procedure-preoperatively, intraoperatively, and postoperatively.

“The only time in which an evaluation and management service can be billed on the same day of a procedure with a 0-, 10-, or 90-day global period is if the service is unrelated to the procedure itself, which typically but not always would require a separate diagnosis code. It would have to be truly separate and identifiable. I believe that is where some of the confusion arises,” Dr. Rubenstein said.

Among the more common zero-day global procedures in urology that are impacted by modifier −25: instillation of cancer therapy, such as bacillus Calmette-Guerin or mitomycin into the bladder; urodynamics; posterior tibial nerve stimulation; injection of hormone therapy; injection of antineoplastic therapy; and intramuscular intravenous injections, according to Dr. Rubenstein.

Next: Remember these false claims truthsRemember these false claims truths

Former OIG lawyer Brian Bewley, who today is a health care fraud and abuse attorney and partner at Bass, Berry and Sims in Nashville, TN, said physicians must ensure that the services they’re providing are medically necessary and properly billed and coded according to the reimbursement regulations.

Urologists and their staffs should become familiar with the OIG’s Work Plan, according to Bewley. The Work Plan is available online (see bit.ly/OIGWorkPlan) and is regularly updated, he said.

“The general position of the government, particularly the OIG, is that you need to be proactive and be aware of high-risk areas for your particular organization or practice,” Bewley said.

This includes paying attention when the Department of Justice, including the various U.S. Attorneys’ offices, announce settlements or cases. Notable settlements are published annually in the annual Bass, Berry and Sims Healthcare Fraud & Abuse Review (www.fraudinhealthcare.com).

“Being aware of current enforcement areas, and the corresponding risks, is not sufficient. You need to be proactive and make sure that your employees and other providers and practitioners in the practice are also aware of them. Make sure everyone knows the rules and regulations surrounding what’s appropriate and what isn’t,” Bewley said.

“Then pressure-test that. Take a look and make sure you’re billing properly and are only providing services when necessary and are properly documenting these services. If you identify mistakes or errors, then implement corrective action, including making appropriate refunds of overpayments and training and education for those who made the mistakes or errors. And re-educate and train.”

The worst thing that you can do as a health care provider is put your head in the sand, according to Bewley.

It’s risky business to intentionally try to beat the system and overbill because Medicare and other payers look for patterns and eventually many of the outliers who try to take advantage of the system stand out, get audited, and find themselves making DOJ headlines, according to Painter.

Dr. Rubenstein thinks about his level of coding before he closes each chart. He said he asks himself: If the chart he is about to close ever gets audited, has he documented appropriately to support the level of the code?

“If I can say to myself, yes, if this chart got audited, it’s water-tight and is appropriate coding, I close out the chart and submit the billing,” Dr. Rubenstein said.

Practices like FWC Urogynecology that settle False Claims Act liabilities often pay the price and move on.

“The billing instance being referenced happened a number of years prior to the settlement, and the company cooperated in all respects,” wrote FWC spokesperson Chris Cooney in an email to Urology Times.

“The company takes its compliance responsibilities very seriously, and has the systems, processes and controls in place to accurately document and bill for services rendered on behalf of patients,” Cooney added.

Changes could be on the horizon. Late last year, CMS announced its final 2019 Physician Fee Schedule and the Quality Payment Program rule, which addresses consolidating E/M coding requirements for physician services but delayed implementation of E/M coding reforms until 2021 to allow for continued stakeholder engagement. (For more, visit “Final Policy, Payment, and Quality Provisions Changes to the Medicare Physician Fee Schedule for Calendar Year 2019” at bit.ly/CMS2019Schedule.)

E/M coding reform might result in fewer codes, less documentation, and less confusion, but that remains to be seen, Zetter said.