August 21, 2020 | By Jesse Overbay, JD
On March 13, 2020, the President of the United States issued an emergency declaration under the Stafford Act to declare a national health emergency, setting in motion a chain of events for the Centers for Medicare and Medicaid Services (“CMS”) and our entire healthcare system that is unprecedented in modern history. The Secretary of the Department of Health and Human Services, shortly after the President’s declaration, authorized the waiver of certain CMS program requirements. Many of these waivers have been extremely beneficial and, in some cases, truly lifesaving to patients in need. Providers, suppliers, administrators, and staff from the smallest practice to the largest health system have been given greater latitude to quickly and effectively treat patients and maneuver their way through the largest sudden-onset health crisis of the past one-hundred years.
One of the waivers implemented on March 30 was the suspension by CMS of “most” Medicare Fee-For-Service medical review because of the COVID-19 pandemic. According to the CMS Provider Burden Relief Frequently Asked Questions (FAQs), this suspension included “pre-payment medical reviews conducted by Medicare Administrator Contractors (MACs) under the Targeted Probe and Educate program, and post-payment reviews conducted by the MACs, Supplemental Medical Review Contractor (SMRC) reviews and Recovery Audit Contractor (RAC).” This is significant because the Office of Inspector General for the Department of Health and Human Services (“OIG HHS”) reported $605.2 million in expected recoveries during its most recent semiannual reporting period (October 1, 2019 through March 31, 2020). Whatever your personal opinion about the effectiveness of the audit programs, the primary strategic goals of OIG HHS are to (1) fight fraud, waste, and abuse; (2) to promote quality, safety, and value in HHS programs and for HHS beneficiaries; and (3) to advance excellence and innovation. One of the primary means of accomplishing these goals is through pre- and post-payment reviews and audits.
Since the beginning of the pandemic and with the waivers implemented by CMS, it stands to reason that it’s in the best interest of OIG HHS to resume audits as quickly as possible. The vast majority of providers and suppliers are doing the best they can and exist primarily to care for patients, but no one can deny that there are, and have always been, bad actors attempting to cheat the system for financial gain. To that end, CMS recently announced that it “expects to discontinue exercising enforcement discretion beginning on August 3, 2020, regardless of the status of the public health emergency.” If a provider is selected for an audit or review, they are encouraged to discuss any hardships in complying with the request related to COVID-19 with the contractor, especially if submitting or complying in a timely fashion could be problematic.
The OIG HHS has already indicated that it will be reviewing and indentifying new CMS risks as a result of the public health emergency and waivers. For example, the OIG HHS on its website has already stated that it will review the “extent to which telehealth services are being used by Medicare beneficiaries, how the use of these services compares to the use of the same services delivered face-to-face, and the different types of providers and beneficiaries using telehealth services. The second review will identify program risks with Medicare telehealth services….” Additionally, OIG HHS will be reviewing CMS’ controls over its Accelerated and Advance Payment Program (“AAP”) payments to providers and payment recovery. Specifically, OIG HHS has stated that it will “evaluate a select group of providers to determine whether they were eligible for AAP payments, and their efforts to repay CMS In compliance with the CARES Act and other Federal Requirements.” This appears to be just the tip of the iceberg for OIG HHS and CMS as there is already an investigation into nursing home companies that received more than $300 million in COVID-19 relief payments after being sued for fraud in recent years.
While there isn’t clear guidance on exactly how the rollout of the audit programs will take place, it’s clear that CMS and the OIG HHS are intent on trying to eliminate fraud, waste, and abuse and will be taking a close look at the waivers, programs, grants, and AAP payments generated during the public health emergency. Owners, providers, billers, coders, and auditors all need to be prepared and pay attention to what the government expects to look into.