Document, Document, Document:

1
Document, Document, Document If it isnt
written it wasnt done and other Medicare Myths

• Presented by
• David M. Glaser, Esq. Gregory J. Warner
• Fredrikson Byron, P.A. Compliance Officer
• [phone] Mayo Foundation
• dglaser_at_fredlaw.com [phone]
• gwarner_at_mayo.edu

2
Our Agenda Dispelling These Myths

• If it isnt written, it wasnt done.
• The carrier has total authority to determine
  medical necessity.
• Reassignment violations are fraud.
• NPs and PAs cant bill high level visits.
• Incident to services must be billed by the
  supervising physician.
• All physician notes must be signed.

3
We will also discuss common misperceptions
related to

• Consultations.
• Preventive medicine.
• Teaching physician rules.
• Determining the date to refund overpayments.

4
Separating Fact From Fiction

• McCarthyism is alive and well, and living in the
  health care industry.
• Carriers, consultants, clients and counselors are
  often guilty of mistakenly believing some policy
  or conventional wisdom is based in law.
• Sometimes, theyll use interesting techniques to
  change behavior.

5
Question Authority

• Is it a requirement or a guideline?
• Medicare -- ask if it is in the statute,
  regulations, Medicare Carriers Manual, or carrier
  policy.
• Get a copy of the rule in writing.
• Ask your lawyer/consultant to explain all
  arguments supporting and refuting their position.
• Determine if the rule was properly promulgated.
• Just because they sound smart doesnt mean
  theyre right.

6
Scenario 1

• A physician saw 1700 patients, you have charts
  for 1200. The physician has some seat of the
  pants notes for some of the remaining patients
  scribbled on the backs of scratch paper.
• You compare your charts against the documentation
  guidelines and discover the following

7
Audit Results
Under-coded 13 50 15 0 33
Over-coded 11 20 35 81 33
Correctly-coded 76 30 50 19 33
Dr. A Dr. B Dr. C Dr. D Dr. E
8
If it isnt written, it wasnt done.

• Good advice, but not the law.
• Medicare payment is determined by the content of
  the service, not the content of the medical
  record.
• The documentation guidelines are just that
  guidelines (although the carrier wont believe
  that).

9
If it isnt written, it wasnt done.

• Carriers typically point to Social Security Act
  Section 1833(e), which they often cite
  incorrectly as 1833(d)(1)(e) as support for their
  position.

10
Role of Documentation The Law

• No payment shall be made to any provider of
  services or other person under this part unless
  there has been furnished such information as may
  be necessary in order to determine the amounts
  due such provider or other person under this part
  for the period with respect to which the amounts
  are being paid or for any prior period.
• Social Security Act 1833(e)

11
Role of Documentation The Cases

• Carriers also often cite Anesthesiologists
  Affiliated v. Sullivan, 941 F.2d 678 (8th Cir.
  1991).
• In that case, the court rejected the defendants
  argument that even if the clinic made billing
  errors they were merely a matter of unartful
  description of the services it provided.

12
Role of Documentation The Cases

• This situation is distinguishable from EM cases
  because the anesthesiologists defense was even
  if they did not provide services as claimed, they
  provided other reimbursable services.
• In short, that is a case where the bill does not
  accurately describe the work done.
• In most EM cases, the bill describes the work
  done, there is simply a lack of documentation.

13
Role of Documentation The Cases

• A much better analysis is United States v.
  Krizek, 859 F. Supp. 5 (D.D.C 1994), 909 F.Supp.
  32 (D.D.C. 1995, revd in part and affd in part
  111 F.3d 934(D.C. Cir. 1997)
• The documentation in this case was seriously
  deficient.
• The court presumed certain work was done, despite
  a lack of documentation.
• But See U.S. ex rel Semtner v. Medical
  Consultants, Inc., 170 F.R.D. 490 (1997).

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Role of Documentation Interpretation

• Common Sense
• Fire
• Scenario 2
• Regardless of any case law, the regulatory
  framework is quite clear.
• The Code of Federal Regulations contains no
  general documentation requirements. 42 C.F.R.
  4245 requires physicians to furnish sufficent
  information. (There are specfic requirements
  for teaching services.)

15
Role of DocumentationGuidance from HCFA

• The CPT Assistant explains it is important to
  note that these are Guidelines, not a law or
  rule. Physicians need not modify their record
  keeping practices at all.
• CPT Assistant Vol. 5, Issue 1, Winter 1995
• HCFA has publicly stated that physicians are not
  required to use the Documentation Guidelines.

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Role of DocumentationGuidance from HCFA
Documentation Guidelines for Evaluation and
Management Services Questions and Answers These
questions and answers have been jointly developed
by the Health Care Financing Administration
(HCFA) and the American Medical Association (AMA)
March 1995.
1. Are these guidelines required? No.
Physicians are not required to use these
guidelines in documenting their services.
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Role of Documentation
However, it is important to note that all
physicians are potentially subject to post
payment review. In the event of a review,
Medicare carriers will be using these guidelines
in helping them to determine/verify that the
reported services were actually rendered.
Physicians may find the format of the new
guidelines convenient to follow and consistent
with their current medical record keeping. Their
usage will help facilitate communication with the
carrier about the services provided, if that
becomes necessary. Varying formats of
documentation (e.g. SOAP notes) will be accepted
by the Medicare carrier, as long as the basic
information is discernible.
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6. How will the guidelines be utilized if I
am reviewed by the carrier?If an evaluation and
management review is indicated, Carriers will
request medical records for specific patients and
encounters. The documentation guidelines will be
used as a template for that review. If the
documentation is not sufficient to support the
level of service provided, the Carrier will
contact the physician for additional information.
Role of Documentation
19
Role of DocumentationGuidance from HCFA

• Documentation is relevant only if there is doubt
  that the services were truly rendered
• 7. What are my chances of being reviewed?
• Review of evaluation and management services will
  only occur if evidence of significant aberrant
  reporting patterns is detected (i.e., based on
  national, carrier or specialty profiles). Our
  reviews are conducted on a focused basis--there
  is no random review.

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Role of DocumentationGuidance from HCFA

• The MCM confirms that documentation is relevant
  only when there is doubt services were really
  provided. MCM 7103.1(I) says an overpayment
  exists if the Physician Does Not Submit
  Documentation to Substantiate That He Performed
  Services Billed to Program Where There is
  Question as to Whether They Were Actually
  Performed . . . (bold added).
• The MCM does not articulate any documentation
  obligation, with the exception of the TPR.

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Role of DocumentationInterpretation

• MCM Section 15501.B requires carriers to
  instruct physicians to select the code for the
  service based upon the content of the service.
• Instructions from many carriers specify that
  physicians, not their office staff, are to select
  the code. For example, a Travelers Medicare
  Bulletin read

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Role of DocumentationTravelers Medicare Bulletin

• Physician involvement in code selection--EM
  Codes were designed to encourage physicians to
  become more closely involved in coding. Since
  office staff are not normally able to assess the
  differences in the amount or intensity of work
  associated with each encounter and since the
  physician is responsible (financially and
  legally) for submitted claims, it is essential
  that the physician actually code for the services
  provided. (Underlining in original.)

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Role of DocumentationOIG Interpretation

• The OIG agrees accurate coding is achieved
  when physicians select codes which consistently
  fit the services physicians actually provided.
• OIG Report Number OEI-04-92-01060, Physician Use
  of New Visit Codes, May 1995.

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Role of DocumentationInterpretation

• HCFA has taken a similar position Although good
  documentation can establish the medical necessity
  and good quality of care for a procedure, it is
  not necessarily true that poor documentation
  proves that the medical necessity for a procedure
  was not present or that poor quality of care was
  rendered.
• OIG Report Number OEI-07-91-00680, Physician
  Office Surgery, June 1993, Medicare and Medicaid
  Guide (CCH) 41, 497, page 36063.

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Choosing a Code

• Time is irrelevant unless 50 of the time is
  counseling or coordination of care and that is
  documented coordination of care.
• History, exam, decision making.
• Documentation for risk management and billing are
  related, not identical.

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Role of Documentation The Bottom Line

• Good advice, but not the law.
• Poor documentation increases the difficulty of
  prevailing in an audit.
• As of now, the carriers are instructed to use
  both the 1995 and the 1997 Guidelines, choosing
  the result most favorable to the physician.
• If it isnt a rule, it isnt an overpayment.

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Audit Review Results - What Do They Mean?
DocumentationExceeded Code Under
coded13 50 15 0 33
DocumentationDoes NotSupport Code Over
coded 11 20 35 81 33
DocumentationSupports Code Correctly
coded 76 30 50 19 33
Dr. A Dr. B Dr. C Dr. D Dr. E
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Common Dilemma Should We Quantify Exposure

• The government may use it against you.
• It is an effective method of convincing skeptics.

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Common Dilemma Should We Quantify Exposure

• If you do it, include a disclaimer like our
  chart reviews are not audits designed to
  determine whether we have been overpaid or
  underpaid. First, they are not a statistically
  valid sample. Moreover, they only review the
  documentation, without attempting to determine
  the amount of work you actually performed.
  Therefore, these figures are far from scientific.
  

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Common Dilemma Should We Quantify Exposure

• However, since a Medicare review would base the
  initial overpayment determination solely on the
  documentation, these figures give you some idea
  of how your charts would fare in the first phase
  of a Medicare review.

31
Common Dilemma Retrospective vs. Concurrent
Reviews

• Consultants/Lawyers argue duty to refund mandates
  concurrent reviews.
• This logic seems flawed.
• Anecdotal evidence suggests concurrent reviews
  are more effective.

32
Scenario 2

• The president of your group is very productive.
  One day, a patient calls and complains she was
  billed for a complete physical, but she never
  removed any clothes. A review of that
  physicians appointment book reveals that the
  physician worked from 9-3, took lunch, and saw 67
  patients, 6 of which were billed as comprehensive
  physicals. The documentation supports all but 5
  of the visits. (There is a comprehensive
  physical documented for the woman who called.)

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Scenario 3

• One of your physicians likes to perform thorough
  exams of patients. The carrier medical director
  feels that the exams could have been more
  cursory, and denies the exams as being not
  medically necessary.

34
The Carrier Has Total Authority to Determine
Medical Necessity.

• While carriers like to believe this, many courts
  have adopted the treating physician rule.
• The theory is that the patients physician is
  objective. Therefore, the physicians opinion
  receives deference.
• Medicares legislative history supports this
  argument.

35
The Carrier Has Total Authority to Determine
Medical Necessity.

• It is a well-settled rule in Social Security
  Disability cases that the expert medical opinion
  of a patients treating physician is to be
  accorded deference by the secretary and is
  binding unless contradicted by substantial
  evidence This rule may well apply with even
  greater force in the context of Medicare
  reimbursement. The legislative history of the
  Medicare Statute makes clear the essential role
  of the attending physician in the statutory
  scheme the physician is to be the key figure in
  determining utilization of health services.
  Gartmann v. Security of the U.S. Department of
  HHS, 633 F.Supp. 671, 680-681(E.D. N.Y. 1986).

36
The Carrier Has Total Authority to Determine
Medical Necessity.

• A carrier is expected to place significant
  reliance on the informed opinion of the treating
  physician and to give extra weight to the
  treating physicians opinion. Baxter v. Sullivan,
  923 F.2d 1391, 1396 (9th Cir. 1991).

37
The Carrier Has Total Authority to Determine
Medical Necessity.

• MCM 7300.5.B forbids carriers from recouping
  an overpayment on the basis of a lack of medical
  necessity if a situation is ambiguous enough that
  the carrier requests its own physician consultant
  to review whether the services are covered.
• This should place the burden of proof on a
  carrier during an appeal.
• It provides a firm ground for challenging the
  carriers arguments that office visits can be
  denied as not medically necessary.

38
Scenario 4

• You have a new doctor join the staff. The
  billing staff, recognizing that it takes 6 months
  to get a provider number, simply use a recently
  departed physicians number while waiting for the
  new number to arrive.

39
It Is Fraud to Violate the Reassignment.

• Half myth, half truth.
• Reassignment in a nutshell Only the person
  performing a service can bill for it.
• The reassignment rules create exceptions allowing
  other organizations to bill for a physicians
  service. Technically, these exceptions apply
  only to physicians and suppliers of services.

40
Reassignment Violations Dont Create an
Overpayment

• At least one false claim complaint (U.S. ex. rel
  Semtner v. Medical Consultants, Inc.) has
  included counts based on reassignment violations.
  However, that complaint ignores a key fact.
• MCM 3060.D says a violation of the reassignment
  rules does not create an overpayment.

41
MCM 3060.D

• An otherwise correct Medicare payment made to an
  ineligible recipient under a reassignment or
  other authorization by the physician or other
  supplier does not constitute a program
  overpayment. It does allow revocation of
  assignment.

42
MCM 3060.D (cont.)

• Sanctions may be invoked under 3060.13 against a
  physician or other supplier to prevent him from
  executing or continuing in effect such an
  authorization in the future, but neither the
  physician or other supplier nor the ineligible
  recipient is required to repay the Medicare
  payment.

43
Reassignment Violations Dont Create an
Overpayment

• The question is whether a claim can be false even
  when it does not result in an overpayment.
  Courts have differed on that question.
• U.S. ex rel. Schumer v. Hughes Aircraft Company,
  63 F.3d 1512, 1525 (9th Cir. 1995) and U.S. v.
  Kensington Hospital, 760 F. Supp. 1120, 1127
  (E.D. Pa. 1991) allow the government to penalize
  claims even without proof of damages.

44
Reassignment Violations Dont Create an
Overpayment

• By contrast, Stinson v. Provident Life Accident
  Ins. Co., 721 F. Supp. 1247, 1258-59 (S.D. Fla.
  1989) and Young-Montenay, Inc. v. U.S., 15 F.3d
  1040 (Fed. Cir. 1994) hold that absent damages,
  false claims penalties are inappropriate.
• Even most courts that dont require specific
  proof of damages require some impact on the
  Federal Treasury.

45
Scenario 5

• An oncologist documents a consult as Ms. Patient
  was referred to me by Dr. Smith to manage her
  colon cancer. At the initial visit, the
  oncologist begins a course of chemotherapy. The
  oncologist mails a copy of his chart notes back
  to Dr. Smith with a brief cover letter thanking
  Dr. Smith for the referral.

46
Its not a consult if you assume care of the
problem.

• Key test is there a transfer of care. A
  transfer is the shift in responsibility for the
  patients complete care to the receiving
  physician at the time of the referral, where the
  receiving physician documents approval of care in
  advance.
• Consultants may initiate diagnostic and
  therapeutic services after the initial or a
  subsequent visit.

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If the chart says referral, it cant be a
consult.

• The use of the word referral should be
  discouraged, because it is misleading, but its
  presence does not change the reality of the
  visit.
• Determine whether a physician is seeking an
  opinion or advice regarding a specific problem.

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Is it a Consult or Visit?

• A request for a consultation . . . and the need
  for consultation must be documented in the
  patients medical record. MCM 15506.D.
• A written report must be provided to the
  referring physician. This can be a letter or
  communication via the chart. (What about a
  carbon copy?)

49
Is it a Consult or Visit?

• Any subsequent visit (i.e., not something to
  complete the initial consultation) is an
  established patient or SH visit.
• Can have a consultation within a group if the
  consultant is in a separate specialty.
• Dont forget -- Need all three key components
  history, exam and medical decision-making.

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Is it a Consult or Visit?

• Consultation for pre-operative clearance
  Medicare pays the appropriate consultation code
  for a pre-operative consultation for a new or
  established patient performed by any physician at
  the request of a surgeon, as long as all of the
  requirements for billing the consultation codes
  are met.
• These rules only apply to Medicare. For all
  other payors, rely on the CPT definition.

51
Scenario 6

• You have a OB/GYN NP who sees patients referred
  in from Internal Medicine physicians. She has
  been billing the visits as consultations.

52
NPs and PAs Can Not Billfor a Consultation.

• HCFA spokespeople, and most carriers say that
  nurse practitioners and physician assistants can
  not bill for a consultation.
• This disregards the language in MCM 15501.G that
  suggests that PAs, NPs, CNSs and midwives can
  perform any service in CPT codes 99201-99499 when
  performed incident to a physicians services.

53
MCM 15501.G

• Services Furnished Incident To Physicians
  Service By Nonphysician Practitioners--Advise
  physicians when evaluation and management
  services are furnished incident to a physicians
  service by a nonphysician practitioner who meets
  the criteria in 2154, 2156, 2158 or 2160, the
  physician may bill the CPT code that describes
  the evaluation that service furnished.

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MCM 15501.G (cont.)

• When evaluation and management services are
  furnished incident to a physicians service by a
  nonphysician employee of the physician, not as
  part of a physician service, and the employee
  does not meet the criteria in 2154, 2156, 2158
  or 2160, the physician bills code 99211 for the
  service.

55
NPs and PAs Cant Billa Level 4 or a Level 5.

• HCFA spokespeople and carriers have often said
  that NPs and PAs can not perform complex medical
  decision making, and therefore can not bill any
  high level visit.
• No authority is cited for that proposition.
• Even if they can not perform high level decision
  making, NPs and PAs can do comprehensive H Ps,
  allowing high level established patient visits.

56
NPs and PAs must bill exclusively independently
or incident to.

• As long as you meet the requirements for billing
  incident to you can bill incident to and get
  paid 15 more, even if you have an independent
  number.
• Know the incident to requirements, including
• W-2 or leased employee relationship.
• Initial and ongoing contact with a clinic MD.
• MD supervision in the office suite.
• The service can not be in a hospital/SNF

57
A good lesson

• Sometimes professional and other associations
  have an agenda, and may inadvertently
  mischaracterize a legal situation. Beware.

58
Incident to Services must be billed under the
Supervising Physician

• There is no national guidance stating whose UPIN
  should be on the claim. I prefer billing under
  the attending physicians number, but either
  approach seems defensible.

59
MCM 2050.3

• In highly organized clients, particularly those
  that are departmentalized, direct, personal
  physician supervision may be the responsibility
  of several physicians as opposed to an individual
  attending physician. In this situation, medical
  management of all services provided in a clinic
  is assured. A physician ordering a particular
  service need not be the physician who is
  supervising the service. Therefore, services
  performed by therapists and other aides are
  covered even though they are performed in another
  department of the clinic.

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Scenario 7

• You have been providing routine screening exams
  to patients, and billing them to Medicare with a
  proper V diagnostic code to get a denial. You
  discover Medicare has been paying the claims.
  You also discover that you have not received an
  ABN from the patient.

61
Senario 8

• My grandmother, who has high blood pressure,
  diabetes, and a host of other conditions she
  loves to mention, calls and schedules an annual
  physical.

62
Preventive Medicine

• This is one of the most confusing coding issues.
• Split billing is the answer.
• The covered visit is provided in lieu of part of
  the preventive medicines service of equal value
  to the visit. The physician may charge the
  beneficiary the difference between the
  physicians current established charge for the
  preventive medicine service and the established
  charge for the covered visit. MCM 15501.E

63
Screening

• There could be covered and non-covered procedures
  performed during an encounter. Consider each
  test individually. Procedures which are for
  screening for asymptomatic conditions are
  non-covered those ordered to diagnose or monitor
  a system, medical condition or treatment are
  evaluated for medical necessity and, if covered,
  are paid.Modifier 32.

64
You Cant Bill Without a Waiver.

• Legally, a physician is not required to give a
  beneficiary advanced written notice that the
  preventive visit is uncovered. However, the
  physician is responsible for notifying the
  patient in advance of his/her liability for
  charges for services that are not medically
  necessary to treat the illness or injury.

65
You Cant Bill Without a Waiver.

• Technically, it is better to refer to them as an
  advanced beneficiary notice.
• ABNs are only required when an otherwise covered
  service is considered not medically necessary.
• If the law excludes a service, no waiver is
  required.
• That said, waivers are an excellent patient
  relations tool.

66
All charts must be signed.

• Carriers/consultants often claim that signatures
  are required.
• There is no rule requiring signatures for clinic
  services.
• Conditions of participation for hospitals/other
  facilities may require signatures in the chart
  COPs are different from reimbursement rules.

67
Scenario 9

• A teaching physician is involved in three
  different procedures at the same time. The key
  portions of the three procedures do not overlap.

68
The Conflict Regs vs. Manual

• MCM 15016 says
• In order to bill for two overlapping surgeries,
  the teaching surgeon must be present during the
  key portions of both operations. In the case of
  three concurrent surgical procedures, the role of
  the teaching surgeon (but not anesthesiologist)
  in each of the cases is classified as a
  supervisory service to a hospital rather than a
  physician service to an individual beneficiary
  and is not payable under the Medicare fee
  schedule.

69
The Conflict Regs vs. Manual

• The rules have no comparable limitation. 42 CFR
  415.172 says In the case of surgical, high
  risk, or other complex procedures, the teaching
  physician must be present during all critical
  portions of the procedure and immediately
  available to furnish services during the entire
  service or procedure.

70
Teaching Physician Rules Only Apply in Academic
Centers.

• Determine if independent billing is possible
• Is the individual in an approved residential
  program?
• Does the time count toward their graduation
  requirements?
• Is the service in a hospital or a clinic?
• Be particularly careful with fellows.

71
Teaching Physician Rules Only Apply in Academic
Centers.

• Understand the teaching physician rules. For E
  M services the attending physician must either
• Be present while the resident performs the
  service or
• Personally perform the key components of the
  service.
• The documentation must reflect the teaching
  physicians role.

72
All Billing Errors Are Fraud, So They Should be
Reported to The OIG Using the Self-Disclosure
Protocols.

• Take the government at its word distinguish
  between fraudulent (intentionally or reckless
  false) and innocent erroneous claims. The
  Draft Compliance Program Guidance repeats Janet
  Renos quote that we are not seeking to punish
  someone for honest billing mistakes.
• If someone wasnt trying to take advantage of the
  system, I wouldnt label the conduct as
  fraudulent.

73
Scenario 10

• Your cardiologists has rounded on a patient
  following cardiac surgery. The cardiac surgeon
  has been following the patient throughout the
  stay. The cardiologist has billed subsequent
  hospital visits.

74
Only one physician can provide hospital care.

• Carriers are told if the services of a physician
  other than the surgeon are required during a post
  operative period for an underlying condition or
  medical complication, the other physician reports
  the appropriate evaluation and management code.
  No modifiers are necessary on the claim. An
  example is a cardiologist who manages underlying
  cardiovascular conditions of a patient.
• MCM 4822.

75
Calculating Voluntary Refunds

• One of the most common questions when refunding
  money is how far back should I go.
• First, determine when the relevant rule was
  promulgated. Dont refund before you were
  reasonably on notice.

76
How Far Back Do You Go?

• The False Claims Act
• Six years.
• Three years from the date when facts material to
  the right of action are known or reasonably
  should have been known by the United States, but
  no more than ten years after the violation.
• Waiver of overpayments when without fault and
  recovery violates equity and good conscience.

77
The Law 42 U.S.C. 1395gg(c)

• There shall be no adjustment as provided in
  subsection (b) (nor shall there be recovery) in
  any case where the incorrect payment has been
  made (including payments under section 1814(e))
  with respect to an individual who is without
  fault or where the adjustment (or recovery) would
  be made by decreasing payments to which another
  person who is without fault is entitled as
  provided in subsection (b)(4), if such adjustment
  (or recovery) would defeat the purposes of Title
  II or Title XVIII or would be against equity and
  good conscience. Adjustment or recovery of an
  incorrect payment (or only such part of an
  incorrect payment as the Secretary determines to
  be inconsistent with the

78
The Law 42 U.S.C. 1395gg(c) (Cont.)

• purposes of this Title) against an individual
  who is without fault shall be deemed to be
  against equity and good conscience if (A) the
  incorrect payment was made for expenses incurred
  for items or services for which payment may not
  be made under this Title by reason of the
  provisions of paragraph (1) or (9) of section
  1862(a) and (B) if the Secretarys determination
  that such payment was incorrect was made
  subsequent to the third year following the year
  in which notice of such payment was sent to such
  individual except that the Secretary may reduce
  such three-year period to not less than one year
  if he finds such reduction is consistent with the
  objectives of this Title. (citations omitted)

79
Carriers/Intermediaries Always Believe You are at
Fault

• The law prescribes special rules when an
  overpayment is discovered (i.e., it is determined
  that a payment was incorrect) subsequent to the
  third calendar year after the year in which it
  was made. Under these rules, deem an overpaid
  physician without fault without further
  development in the absence of evidence to the
  contrary, i.e., if there is no indication that
  the physician was at fault. Where the
  beneficiary was liable, HCFA waives recovery from
  the beneficiary if he was without fault.

80
Carriers/Intermediaries Always Believe You are at
Fault (Cont.)

• (This provision provides limited relief to
  physicians since, in most cases, the facts which
  bring to light the overpayment are sufficient
  basis for determining whether the physician was
  at fault.) Do not deem a physician without fault
  under this provision with respect to overpayments
  for noncovered services which are part of a
  pattern of billing for similar services. In such
  cases, initiate necessary development to
  establish whether the physician was without
  fault. Medicare Carriers Manual Section 7106.

81
Limitation on Reopening Claims

• Both the Medicare Intermediary Manual and the
  Carriers Manual indicate that claims may only be
  reopened after 48 months when there is evidence
  of fraud or similar fault.
• Fraud or similar fault requires some
  intentional wrongdoing.

82
Fraud or Similar Fault

• Deception by a person who knows that the
  deception may result in authorized benefits to
  someone
• An act which approximates fraud, i.e., the
  furnishing of information which the individual
  knows is incorrect or incomplete, or the
  deliberate concealment of information, with or
  without a judicial finding of fraud
• A pattern of program abuse by physicians or
  suppliers resulting from practices that are
  inconsistent with accepted sound fiscal,
  business, or medical practice, such as

83
Fraud or Similar Fault (Cont.)

• The furnishing of services that are in excess of
  the individuals needs, or of a quality that does
  not meet professionally recognized standards of
  health care or
• The submittal of incorrect, incomplete or
  misleading information that results in payment
  for services
• That were not furnished
• More expensive than those furnished or
• That were not furnished under the conditions
  indicated on the bill.

84
Fraud or Similar Fault (Cont.)

• The submittal of, or causing the submittal of,
  bills or requests for payment containing charges
  for Medicare patients that are substantially in
  excess of the amounts the physician or supplier
  customarily charges
• An act or pattern of program abuse involving
  collusion between the supplier and the recipient
  that results in higher costs or charges to the
  Medicare program or
• Any act that constitutes fraud under Federal or
  State law.

85
Fraud or Similar Fault (Cont.)

• A Determination that Fraud or Similar Fault is
  present depends on the facts. For example, a
  claim may be reopened more than 4 years after
  payment was approved, if the evidence establishes
  a pattern of billing by a physician for weekly
  routine visits to patients in a nursing home for
  whom, under established standards of good medical
  practice, not more than one visit a month is
  medically reasonable and necessary.