ethical practices and compliance in cdi: staying on the ... · • [health system] will pay $18m to...

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Ethical Practices and Compliance in CDI:Staying on the Right Side of the Healthcare False Claims Act

Jon Elion, MD, FACCFounder and Chief Innovation OfficerChartWise Medical Systems, Inc.Wakefield, RI

Jerry Williamson, MD, FAAP, MJ, CHC, LHRMConsultant and Adjunct Professor of Law, Loyola University Chicago, Law SchoolFort Myers, FL

2019 Copyright, HCPro, a division of Simplify Compliance LLC, and/or session presenter(s). All rights reserved. These materials may not be copied without written permission.

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Learning Objectives

• At the completion of this educational activity, the learner will be able to:– Describe the major components of the ACDIS Code of Ethics– Formulate recommendations to physicians and healthcare organizations to ensure compliance and avoid costly fines

– Recognize areas of potential conflict between CDI and compliance– Identify potential vulnerabilities for CDI programs with respect to the False Claims Act

– Describe the government’s single most important tool: the federal False Claims Act and its qui tam provisions


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Disclaimer

This presentation is designed to provide general information on pertinent legal topics. The

statements made as part of the presentation are provided for educational purposes only.

They do not constitute legal advice.

If you have specific questions as to the application of law to your activities, you should

seek the advice of legal counsel.


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Goal: High‐Quality Documentation

Criteria Example/Description

Legibility Required under all government and regulatory agencies

Reliability Treatment provided without documentation of condition being treated

Precision No specific diagnosis documented, more specific diagnosis appears to be supported

Completeness Abnormal test results without documentation for clinicalsignificance (Joint Commission requirement)

Consistency Disagreement between two or more treating physicians withoutobvious resolution of the conflicting documentation upon discharge

Clarity Vague or ambiguous documentation

Timeliness Not completed within the guidelines set by the facility, CMS, state, Joint Commission, or other regulatory agencies


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Don’t Fall Into This Trap!


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Ethical Standards for CDI


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Two Relevant Ethical Standards for CDI

• Code of Ethics of the Association of Clinical Documentation Improvement Specialists (ACDIS):https://acdis.org/membership/ethics

• Ethical Standards for Clinical Documentation Improvement (CDI) Professionals:http://library.ahima.org/doc?oid=301868#.W4RUULgpCUk

“The ACDIS Code of Ethics … strives to promote and maintain the highest level of professional service and conduct among ACDIS members. Adherence to these standards ensures public confidence in the integrity and service of

the association.”


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CDI Professional Values

CDI professional values are:• Honesty and integrity• Acting in a manner that brings honor to self, peers, and profession• Committing to continuing education and lifelong learning


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Ethical Principles (Excerpts)

• Advocate, uphold, and defend the individual’s right to privacy and … confidentiality in the use and disclosure of information.

• Use only legal and ethical means in all professional dealings, and refuse to cooperate with, or condone by silence, the actions of those who engage in fraudulent, deceptive, or illegal acts:– Unethical practices or procedures– Dishonesty, fraud and abuse, or deception– Directing physicians to document only specific diagnoses and/or to always avoid specific diagnoses, based solely on financial impact


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Ethical Principles (Excerpts, cont.)

• Support the report of all healthcare data elements …– Adhere to the official coding guidelines …– Comply with AHIMA’s standards … including health record documentation and clinical

query standards– [Develop] query policies that … comply with the … “Guidelines for Achieving a Compliant

Query Practice*”– Use queries … to improve the quality of health record documentation, not to

inappropriately increase reimbursement …– Ensure adequate clinical evidence and/or supportive documentation is … presented within

the associated query– Follow organizational guidelines and/or current industry and clinical practice guidelines to

identify clinical criteria for support of queries

*ACDIS and AHIMA Guidelines for Achieving a Compliant Query Practice: http://www.hcpro.com/content/289883.pdf


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Balancing CDI and Compliance


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CMS Supports the Idea of CDI

“We do not believe there is anything inappropriate, unethical or otherwise wrong with hospitals taking full advantage of coding opportunities to maximize Medicare payment that is supported by documentation in the medical record. We encourage hospitals to engage in complete and accurate coding.”

Source: Federal Register, Vol. 72, No. 162, Wed. Aug. 22, 2007, Rules and Regulations, pp. 47180–47181.


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CMS Provides Some Further Clarification

“We highly encourage physicians and hospitals to work together to use the most specific codes that describe their patients’ conditions. Such an effort will not only result in more accurate payment by Medicare but will provide better information on the incidence of this disease in the Medicare patient population.”

Source: Federal Register, Vol. 72, No. 162, Wed. Aug. 22, 2007, Rules and Regulations, pp. 47180–47181.


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Providers & Coders Must Work Together

A joint effort between the health care provider and the coding professional is essential to achieve complete and accurate documentation, code assignment, and reporting of diagnoses and procedures ... The importance of consistent, complete documentation in the medical record cannot be overemphasized. Without such documentation accurate coding cannot be achieved.

Source: ICD‐10‐CM Official Guidelines for Coding and Reporting, FY 2019 https://www.cdc.gov/nchs/icd/data/10cmguidelines‐FY2019‐final.pdf


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CMS Incentive to Improve Records

“The [IPPS] documentation and coding adjustment was developed based on the recognition that the MS‐DRGs, by better accounting for severity of illness … would encourage hospitals to ensure they had fully and accurately documented and coded all patient diagnoses and procedures consistent with the medical record in order to garner the maximum IPPS payment available under the MS‐DRG system.”

Source: CMS 2009 IPPS 73 Fed. Reg. 48448, Aug. 19, 2008.


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Clinical Documentation Misuse Can Be Front‐Page News

• DOJ Recovers $2.5B in Healthcare Fraud, False Claims– January 3, 2019: “The Department of Justice (DOJ) has announced that $2.5 billion of the total $2.8

billion recovered under the False Claims Act can be attributed to fraud and improper claims from healthcare providers during the fiscal year.”

• Medicare Advantage Provider to Pay $270 Million to Settle False Claims Act Liabilities– October 1, 2018: “We will pursue those who undermine the integrity of the Medicare program and the

data it relies upon … This also illustrates that the Department encourages and incentivizes health care organizations to make voluntary disclosures to the government when they identify false claims.”

• Hospital Chain Will Pay Over $260 Million to Resolve False Billing– September 25, 2018: “By manipulating patient status, [the hospital system] increased Medicare costs and

pocketed taxpayer funds to which it was not entitled.”

• [Health System] Will Pay $18M to Settle False Claims Allegations– April 13, 2018: “The allegations against [the health system] were originally brought under the qui tam, or

whistle‐blower, provisions of the False Claims Act by a former employee.”


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So, Can We Achieve the Balance?

Getdeserved

reimbursement

Getdeserved

reimbursement

Avoid fraudulent

billing

Avoid fraudulent

billing


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Implement written policies, procedures, and standards of conduct

Designate a compliance officer and committee

Conduct effective training and education

Develop effective lines of communication

Enforce standards through well‐publicized disciplinary guidelines

Conduct internal monitoring and auditing

Respond promptly to offenses; develop corrective action

7 Elements of Effective Compliance


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Elements of Compliance

PreventPrevent

DetectDetectCorrectCorrect


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Some Quick Case Studies


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The Kwashiorkor Story

• Results from inadequate protein intake.• Early symptoms:

– Fatigue– Irritability– Lethargy

• Late symptoms:– Growth failure– Loss of muscle mass– Generalized edema– Decreased immunity– Large, protuberant belly


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One Hospital’s Kwashiorkor

• Around 250 beds in a small town, median home price $250,000, average income $60,000

• 1,030 cases reported in Medicare patients (18.6%); $11,463 per patient• Next highest incidence in the state: 172 patients (3.8%)• Some patients had no notation in the chart about edema or swelling, and had no

nutrition consult• NOTE: There can be legitimate isolated severe protein malnutrition in alcoholism (for

example)


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Encephalopathy

• Rapid involuntary eye movement

• Inability to swallow or speak

• Muscle twitching, atrophy, weakness, and tremor

• Memory loss, loss of cognitive ability

• Personality changes

• Inability to concentrate

• Loss of consciousness

• Dementia, seizures, lethargy


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One Hospital’s Encephalopathy

• 36% incidence in elderly Medicare patients at one hospitals

• Other hospitals in the state reported encephalopathy in 3.6% of that population

• A hospital could earn an additional $7,500+ per case for treating the condition as a complication


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Famous Medical Center in Trouble

MEDICAL CENTER SETTLESFALSE CLAIMS ACT CASE

Baltimore, Maryland – [A] Medical Center has agreed to pay the United States $2.75 million to settle claims that it submitted false claims to federal health benefits programs over a twenty month period between July 1, 2005 and February 28, 2007


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…according to the complaint … employees were assigned to work in the coding department … during the relevant time period to assist in clinical documentation.

Those employees reviewed charts relating to inpatient hospital stays to determine if there was any way for the hospital to increase reimbursement by increasing the severity of the secondary diagnoses recorded for certain patients.


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… the employees allegedly focused on lab test results which might indicate the presence of a complicating secondary diagnosis such as malnutrition or respiratory failure, and advised treating doctors to include such a diagnosis in the medical record, even if the condition was not actually diagnosed or treated during the hospital stay


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More Background

• The case was initiated by two employees who worked in the coding department

• The settlement agreement provided for those two to receive 20% of the total settlement ($550,000)

• A strong compliance program can:

– Detect and correct these situations early

– Can encourage employees to report so that management can take lawful corrective action

– Encourage employee to come to management rather than the authorities


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Stay Out of the Headlines!


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Queries Must Be AHIMA‐Conformant


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You May Be Headed for the Front Page …

• If you have a high incidence of malnutrition, encephalopathy, sepsis, or acute respiratory failure

• If your CDI consultant’s compensation is contingent on increases in Medicare revenue

• If the first hour of your first day of training is about encephalopathy

• If you are told to:

– Find an MCC then move on

– Just query for reimbursement


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1. Read the newspaper

2. Create and review a report that lists patients with:

Sepsis

Encephalopathy

Malnutrition

Respiratory Failure

How Can CDI Assist Compliance?


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CDI Program Support of Compliance

Timely (concurrent) reports to central reviewers (compliance) for “problem” diagnoses (encephalopathy, malnutrition, etc.)

Implement “best practices” in CDI queries (for example, a library of queries that have been fully vetted)

Create a process to disseminate tips and alerts from headquarters to the workers “on the line”

Create a process of scheduled reports to be distributed to support internal auditing and review staff

Track and report on key billed diagnoses and DRGs


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Healthcare False Claims Act


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Government’s Viewpoint

Fraud enforcement is profitable:• Profitability is now a driving force behind the continued increase in investigations and

prosecutions• Health Care Fraud and Abuse Control (HCFAC) not only pays for itself, but it produces

an unequaled return on investments (ROI) for a government program• The average ROI 2015–2017 is $4.20 returned for every $1.00 spent


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The Federal False Claims Act 31 USC § 3279

• Is a federal statute that covers fraud involving any federally funded contract or program (including Medicare and Medicaid)

• Commonly known as the “Lincoln Law” because it was first enacted to counter fraudulent activities involving military procurement during the Civil War

• Establishes liability for any person who knowingly presents or causes to be presented a false or fraudulent claim to the U.S. government for payment


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The Federal False Claims Act 31 USC § 3279The term “knowingly” is defined to mean that a person, with respect to information:

• Has actual knowledge of falsity of information in the claim

• Acts in deliberate ignorance of the truth or falsity of the information in a claim

• Acts in reckless disregard of the truth or falsity of the information in a claim


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The act does not require proof of specific intent to defraud the government. Health care providers can be prosecuted for a wide variety of conduct that leads to the submission of fraudulent claims to the government, such as knowingly making false statements, double‐billing for items or services, billing for services never performed, falsifying records, or otherwise causing a false claim to be submitted.


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• For purposes of the False Claims Act, a “claim” includes any request or demand for money that is submitted to the U.S. government or its contractors

• Health care providers and suppliers who violate the False Claims Act can be subject to civil monetary penalties ranging from a minimum of $10,781 to a maximum of $21,563 for each false claim submitted

• Providers and suppliers can also be required to pay 3 times the amount of damages sustained by the government

• If a provider or supplier is convicted of a False Claims Act violation, the OIG may seek to exclude him/her/it from participation in federal health care programs


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Qui Tam “Whistleblower” Provisions

• Designed to encourage individuals to report misconduct involving False Claims Act

• Allows any person with actual knowledge of allegedly false claims to the government to file a lawsuit on behalf of the government


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Qui Tam Process

• The whistleblower must file his/her lawsuit on behalf of the government in a federal district court, and kept “under seal” during governmental review and investigation of the allegations.

• If the government determines that the lawsuit has merit and decides to intervene, the prosecution of the lawsuit will be directed by the Department of Justice. If the government decides not to intervene, the whistleblower may continue with the lawsuit on his or her own.

• If the lawsuit is successful, and certain legal requirements are met, the whistleblower may receive an award ranging from 15% to 30% of the amount recovered, and may be entitled to reasonable expenses for bringing the lawsuit.


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Florida Whistleblower Law: The Florida False Claims Act

• The Florida whistleblower law, the Florida False Claims Act, allows whistleblowers to file “qui tam” lawsuits if they know of violations of that state law.

• A defendant may be ordered to pay up to three times the actual harm to the state, plus a fine of between $5,500 and $11,000 for each violation of the Act.

• A whistleblower filing a False Claims Act case may receive between 15% and 25% of any recovery in matters joined by the Florida Attorney General, and between 25% and 30% of the recovery if the whistleblower proceeds on his own. The court may reduce the amount of the award if the whistleblower’s allegations are based on publicly disclosed information, or if the whistleblower planned and initiated the fraud.


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Florida Whistleblower Law: The Florida False Claims Act

• The Florida False Claims Act also protects whistleblowers from retaliation by their employers.

• The law was strengthened through amendments in June of 2013, which give the attorney general new power to investigate claims. The law became effective as of July 1, 2013.


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Yates Memorandum

• The Yates Memorandum, issued September 9, 2015 by former Deputy Attorney General Sally Q. Yates, has played a significant role in the increase of individual prosecutions

• Specifically instructed DOJ attorneys to direct their FCA enforcement efforts to individual prosecutions and to seek accountability directly from the individuals who perpetrated the wrongs within the corporations

• DOJ prosecutors and civil attorneys were directed to follow six key steps in conducting, evaluating, and settling FCA investigations


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Reverse False Claim Provision of the FCA:31 U.S.C. § 3729(a)(1)(G)

• On February 11, 2016, the Centers for Medicare & Medicaid Services (CMS) published a final rule on the reporting and return of overpayments within 60 days, an obligation commonly known as the “60‐day rule”

• Liability can exist when a provider or supplier “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government”

• An “obligation” includes the retention of any overpayment


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Examples of Healthcare Fraud

• Billing for services not rendered or goods not provided

• Falsifying certificates of medical necessity and billing for services not medically necessary

• Billing separately for services that should be a single service (unbundling)

• Falsifying treatment plans or medical records to maximize payments

• Failing to report overpayments or credit balances

• Duplicate billing

• Unlawfully giving health care providers inducements in exchange for referrals


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Documentation‐Related Fraud


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Documentation‐Coding‐Billing

99215

100%

75%

50%

25%

0%99211 99212 99213 99214

Under CodingAppropriate Coding

Over Coding


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Documentation‐Coding‐Billing

ICD‐10


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Solutions to Mitigate the Risk of Upcoding and Other Documentation and Billing Abuses

• Develop a compliance plan: Compliance plans should include regular internal audits. Often the plan itself is established, but organizations fail to follow through with training, education, and enforcement of disciplinary standards.

• Discuss fraud issues with EHR vendors: Often EHR vendors explain that their system is audit proof and contains methods to deter upcoding. Providers and counsel should ensure that they have addressed concerns of upcoding, copy‐and‐paste features, and templates with the vendor.

• Review EMR vendor agreements: These agreements limit the liability of the vendor and the provider may be at risk for overpayments or false claims, even if the auto‐coding features installed by the EHR vendor are the primary cause of billing issues.


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Solutions to Mitigate the Risk of Upcoding and Other Documentation and Billing Abuses

• Audit notes and voice‐transcribed notes: Auditing how notes are entered into the system from start to finish.

• If substandard care and upcoding is found in some cases, expand the audit: If an organization knows of upcoding or EHR abuses, there may be an affirmative duty to act upon that knowledge.

• Educate physicians regarding EHR risks: Physicians should be educated regarding fraud risks, including inappropriate use of templates and cloning.


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Effective Compliance Program Elements

The Federal Sentencing Guidelines and various agency issuances provide guidelines as to the elements for an effective corporate compliance program. These elements include:• Standards and procedures;• Descriptions regarding the roles and reporting relationships of personnel;• Procedures for background checks of employees;• Training programs and schedules;• Procedures for monitoring, auditing, and evaluating the compliance program;• Reporting structures and systems;• Disciplinary and corrective action procedures; and• Documentation requirements

https://www.justice.gov/criminal‐fraud/page/file/937501/download


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Healthcare Today


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“Let’s Be Careful Out There”


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Thank you. Questions?

Jon Elion: [email protected] Williamson: [email protected]

In order to receive your continuing education certificate(s) for this program, you must complete the online evaluation. The link can be found in the continuing education section of the program guide.


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