September 16, 2022 | By Sean Weiss, CHC, CEMA, CMCO, CPMA, CPC-P, CMPE, CPC
Audits are nothing new but the requirements tied to them are in a lot of cases. For years I have talked about and encouraged clients to create Corrective Action Plans (CAPS) when they uncover something that requires adjustments and possibly refunds to The Centers for Medicare and Medicaid Services (CMS) and or commercial payors. CAPs, demonstrate during an investigation an organization’s “Good Faith” in complying with Acts, Statutes, Regulations, Sub Regulatory Guidance, and Laws. However, creating one is not something that should be done without guidance from your health care attorney to ensure the work product is protected to the extent the law allows.
Within any organization if one looks long and hard enough, they can always find something questionable… just like if a police officer gets behind you on a highway and they follow you long enough they can find a reason to pull you over. Within healthcare, things are often subjective and shaded in grey. This is what causes compliance officers to awaken in a cold sweat from great REM sleep.
Some attorneys tell clients not to create CAPs because you never want something in writing. Of course, you want to be measured with what you put in writing, but at the same time, the whole reason for a CAP is to demonstrate compliance with Auditing and Monitoring (one of the Seven Steps of an Effective Compliance Plan) to ensure a prior issue doesn’t resurface. The fact insurance companies require them as part of a voluntary refund and/or settlement agreement or impose them as part of an Integrity Agreement (IA) is enough to demonstrate a CAP is a critical aspect of your compliance.
Recently I was able to negotiate a significant demand for an overpayment refund down to $125.00. Even though we disagreed with the audit findings and their own expert’s admission she was unfamiliar with the type of surgeries in question, and put aside the fact the payor did not have an actual policy for this type of service, they still demanded a CAP. The reasons for wanting it were bizarre to say the least but they felt the provider unbundled services, appended modifiers incorrectly, and billed for levels of E/M Service that were not supported by Medical Necessity… Keep in mind the payor agreed to a settlement of $125. They absolutely refused to accept the settlement payment without the CAP and on two (2) occasions made it clear that without a CAP they will disregard the settlement and initiate a demand for a refund in the full amount.
Those of you that follow The Compliance Guy Podcast (www.thecomplianceguy.com) know that I speak about Incident-to and Split/Shared Services and the significant risk(s) it creates for practices and hospitals/health systems. Take a look at the sample CAP below. This could be used to assist you with any potential issues you may have uncovered through internal audits. Keep in mind that this is a CAP and needs to be specific to your organization.
CORRECTIVE ACTION PLAN
Incident to and Split/Shared Service
Outside reviews of incident to and split/shared services were conducted for ________________ by DoctorsManagement Partner and Vice President of Compliance Sean M. Weiss on August 31, 2022.
The purpose of this review was to identify areas of risk for non-compliance with Medicare policies for incident to and split/shared services, and to recommend education or a shift in how the services were being performed and billed.
______ has inconsistently applied application of incident to and split/shared policies. A bona fide investigation has been conducted for those services identified as potentially overpaid, and voluntary refunds have been issued in compliance with the Affordable Care Act (ACA) 60-Day Rule.
Sean M. Weiss, Partner and Vice President of Compliance developed a model policy for _____ that will give the organization a roadmap that includes CMS policy, as well as compliance best practices to address vague wording in CMS and Medicare Administrative Contractor regulations.
Incident to Services:
“Incident to a physician’s professional services means that the services or supplies are furnished as an integral, although incidental, part of the physician’s personal professional services in the course of diagnosis or treatment of an injury or illness.” (Medicare IOM Publication 100-02, Chapter 15, Section 60.1).
These services consist of those rendered by ancillary providers, such as injections or routine wound care services, as well as those services rendered by midlevel providers.
The following criteria must be met to remain compliant with incident to rules under CMS guidelines:
- A physician must initially see the patient and establish a plan of care.
- The services rendered by the NPP are typically offered in the office and are part of a documented treatment plan.
- A physician within the same tax identification number (TIN) is on-site, continuously – not necessarily in the same room, but in the same office suite. This physician must offer direct supervision.
- The supervising physician cannot be at the hospital or another location even if it is connected by a bridge or walkway, etc. He or she must be readily available to provide assistance if necessary.
- The physician must continue to be actively involved in the patient’s plan of care and demonstrate it. There is no set parameter but it is universally believed that every 3rd or 5th visit the physician should engage with the patient to ensure the Plan of Care (POC) is still appropriate.
Auxiliary personnel, such as medical assistants, must be employees of the physician or leased employees of the physician. Personnel may work part-time or full-time. Personnel must work under the direct supervision of a physician. Auxiliary personnel can bill only the lowest level of E/M service, code 99211. They do not have individual provider numbers and can’t bill separately for their services like an NPP. Medicare will pay the claim at 100 percent of the physician fee schedule
A split/shared visit is a medically necessary encounter with a patient, where the physician and a qualified NPP each personally perform a substantive portion of an E&M visit face-to-face with the same patient on the same date of service.
Additionally, IOM Publication 100-04, Chapter 12, Section 30.6.13 (H) states that “A split/shared E/M visit is defined by Medicare Part B payment policy as a medically necessary encounter with a patient where the physician and a qualified NPP each personally perform a substantive portion of an E/M visit face-to-face with the same patient on the same date of service. A substantive portion of an E/M visit involves all or some portion of the history, exam, or medical decision-making key components of an E/M service.”
Both the physician and the NPP must each personally perform part of the visit, and both the physician and the NPP must document the part(s) that he or she personally performed. When the supporting documentation does not demonstrate that the physician “performed a substantive portion of the E/M visit face-to-face with the same patient on the same date of service” as the portion of service performed by the NPP, a service billed under the physician’s Provider Transaction Access Number (PTAN) will be denied.
It is of particular importance to remember that notes documented by the NPP for E/M services performed independently within a facility, and later reviewed and co-signed by the physician, depict neither a scribe situation nor an appropriate split/shared visit. Additionally, “incident to” guidelines do not apply to services in an inpatient setting. In this situation, the service should be billed under the NPP’s provider number and would be reimbursed at the established rate for that provider.
With the IOM requirements in mind, the following are examples of medical record documentation by the physician which would not be considered adequate to support a split/shared visit:
- “I have personally seen and examined the patient independently, reviewed the PA’s Hx, exam, and MDM, and agree with the assessment and plan as written” signed by the physician
- “Patient seen” signed by the physician
- “Seen and examined” signed by the physician
- “Seen and examined and agree with above (or agree with plan)” signed by the physician
- “As above” signed by the physician
- Documentation by the NPP stating “The patient was seen and examined by myself and Dr. X., who agrees with the plan” with a co-sign of the note by Dr. X
- No comment at all by the physician, or only a physician signature at the end of the note
*The Split/Shared Rules will be adjusting in January 2023. All providers will be educated on those changes prior to January 1, 2023.
Based on the review of ___________________ by DoctorsManagement Partner and Vice President of Compliance, Sean M. Weiss _________________ was determined to have heightened risk of non-compliance with either Incident to, Split/Shared or state billing rules for midlevel providers.
It is recommended that all future billing for Medicare services be billed under the rendering provider. Given the variance between payment for NPPs or MD/DO it is best to eliminate any potential risks.
IMPROVEMENT BENCHMARK(S) AND TIMEFRAME
This Corrective Action Plan is effective 8/31/2022 through 12/31/2022.
The undersigned have read this Corrective Action Plan and agree to its terms.
Disclaimer: The Sample CAP provided is not legal advice or a substitute for legal counsel. The document provided is guidance on how to structure and to guide you through the various steps in creating a CAP. Failure to seek legal counsel or cutting and pasting the information below and using as your internal CAP is not the responsibility of Sean M. Weiss, The Compliance Guy Blog, DoctorsMangement, or any of its affiliates in the event of an adverse Audit or Investigation resulting in a negative outcome. User assumes full liability and responsibility.