Stop Giving Back Your Hard-earned Money

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Good afternoon, everybody. My name is Michael Miscoe, with Miscoe Health Law. And we have a couple of issues to present today in this week’s ChiroSecure Facebook Live presentation. In our mixed bag of issues, I wanted to talk about something we talked about a few weeks ago, relative to the CARES Act payments to providers. This magic money that will show up in your bank account if you bill Medicare. And interestingly enough, I’ve even had clients who have retired, they’re no longer providing care to patients, but because they did see some patients in 2019, they got these CARES Act payments. And I predicted, and I hate being right about this stuff, but I expressed some concern several weeks ago in a prior show relative to the documentation and qualification requirements for this money.

So this money goes out. Congress approved $50 billion … that’s billion with a B … in these payments. And they shipped them out to providers to provide relief to healthcare providers whose practices are suffering because of this COVID public health emergency in the impact on patient volume to try to stabilize some physician practices. And you may not have gotten a lot of money, but it is federal money. And any time you receive money from the government, you can anticipate that it is subject to certain rules. Looking into the statutory requirements for retention of these funds, it suggests that most chiropractic officers would not qualify because, obviously, treatment of the actual disease, or patients with that disease, is probably going to be restricted, obviously outside of the scope of practice, relative to direct treatment of the disease.

And even assuming you get through some of those threshold requirements, the concern is, especially given the fact that HHS announced that they pretty much assume everybody is a potential COVID patient, then there’s significant documentation requirements relative to how you spent the money relative to the COVID issue. Which raised some concerns about providers’ ability to legitimately attest that they met those requirements, therefore keeping the money. And the attestation. Very simple. Sign on the dotted line. And that checks that box as far as the government is concerned. However, I anticipated that the government would in fact go back and audit. And in fact, the Department of Health and Human Services Office of Inspector General announced in their May 2020 update to their Fraud and Abuse Work Plan that they are going to audit CARES Act provider relief fund payments.

Their focus will be looking at data from the program officials to make sure that they understand how those provider relief fund payments were made, how the mounts were calculated. But they will also be looking deeper into whether the providers that received them were actually entitled to receive them. In which case, similar to the Comprehensive Error Rate Testing Program, you may be selected if you received those payments to demonstrate that you met the documentation reporting requirements, or the documentation and spending requirements. And those results, which could impact you, you may have to refund that money, is then used to calculate whether the program was administered correctly, which is the OIG’s primary function.

So be cautious if you got that money. Just understand that it’s not necessarily free. It is for a very specific purpose. If you have any questions about whether you qualify, the documentation that you’re required to maintain relative to how it was spent, be sure to look into that. Otherwise, to the extent that you got that money and you probably shouldn’t have, then there’s a process where you can disclose and voluntarily refund that money so as to avoid any civil False Claims Act liability.

Another thing that has come up in a completely different vein, and because these issues don’t in and of themselves justify an entire 10 to 15 minute presentation, I thought I’d hit you with two different issues today. Another issue that comes up commonly is that providers contact ChiroSecure because they’re being asked to refund money. Usually the circumstances that I’m talking about are individual payments. And what happens is the payer realizes at some point after they’ve paid for services that they shouldn’t have. Usually because a patient that, at the time, they believed had coverage, but later they didn’t because maybe they didn’t pay their premiums, or whatever happened. But they’ve made a mistake in payment. And then the question becomes, the doc, “Here’s my verifications. And they said the patient had coverage. Now they’re taking the money back, and it’s a couple hundred, a couple thousand, whatever it is. And do I have to pay it?”

And the answer to that question boils down to your participating status. And obviously, if it’s Medicare, the answer is absolutely yes. Medicare Part B, that’s a definite yes. Part C and other commercial payers, it’s a maybe. And it boils down to, if you have signed a participating provider agreement with that payer, chances are there’s a provision in that agreement that obligates you to refund mistaken payments. And the mistake doesn’t have to be your fault. It can be their fault. And that’s just part of playing in a commercial insurance company sandbox by being a participating provider, is that if they’ve mistakenly made payment to you for any reason, they can recover that money back. Now understand, mistaken payments extends into payments for services that you billed on the basis that the services were medically necessary, and they later determined that they weren’t, or misuse of modifiers and all those normal post-payment issues. Those are subject to appeal and whatnot.

But these, when they actually made an incorrect coverage determination, and they paid for something that they later determined they should not have, and they attempt to retract the money, if you’re a participating provider, there’s pretty much no defense. The fact that you billed it in good faith, principles of equity in the law, you did the service, the answer is you have to refund the money and then you balance bill the patient. And for those that are concerned about whether you can balance bill the patient, think of it this way. If the service isn’t covered under the plan, then you absolutely can balance bill, especially if you’re a participating provider, because all of those participating provider contracts also give you the ability to bill patients for services that they don’t cover. If they weren’t covered for reasons of medical necessity, they often have some advanced beneficiary notice requirement, that’s not the issue here.

The issue here is they made the payment believing a service was covered. It wasn’t covered for whatever reason. Maybe the patient’s coverage lapsed, and they’re attempting to retract the money. Well, if they didn’t have coverage at all, your participating agreement provisions don’t apply because the patient essentially wasn’t insured, and you balance bill the patient. And that can create some problems with your patients, but they of all people should have known that they weren’t covered. And maybe they didn’t know, but at the end of the day, if there’s some coverage hiccup, the patient is the best person to resolve it because it’s their coverage.

The other thing we have to talk about is post-payment audits. So these are different insofar as that you’re getting a request either, usually, for records, but sometimes if maybe you missed a record request and they impose a demand for a large number of patients. And those, again, your participating status is very critical in terms of how we can respond. Now for the non-par docs, if you get a record request, you want to call and get help immediately. Because once you send the records and the payer has some perceived belief that the payments were improper, it’s much more difficult to defend. Not that it’s impossible, it’s just more difficult. So we’d like to intercede at the record request phase.

Now there are some blowbacks. If you’re non-par, a payer can put you in prepayment review, which is a troubling process. And to the extent that there are errors in your claims, miscoding, things of that nature, some of the defenses that we apply can be bypassed. But just understand that when you get a refund demand, or, more importantly, a record request from a payer, and you don’t participate, absolutely get help. I mean, get help anytime you get a record request, but if you’re non-participating, don’t ignore it. It needs to be addressed. But we can address it in a way that insulates you from liability. Because, of course, if you’re a non-par provider, you have not agreed to their rules. And pretty much, when payments are made, they’re done.

And similarly, if the carrier made a coverage error and you’re non-par, then we can resist the effort to refund the money. But if you are participating, there pretty much isn’t a defense and you need to repay the money consistent with the obligations that you signed up for as a participating provider. And it’s just one of those quirky little things that happens. And it seems unfair, but the only defense would be is if there was a limitations period, that we could argue that they didn’t make that request within a permissible time. Limitations period vary. Periods vary anywhere from six months, like if you’re in Texas, to 18 months in some other states. 12 months in others. Two years. I’m in Pennsylvania, it’s a two year look-back. Some states have no look-back restrictions. So that would be the only thing to evaluate if you’re a participating provider. But if they made that request within the look-back period, you’re probably going to have to pay it back.

That’s all we have time for today. Hope everyone enjoyed the Memorial Day weekend. I know it’s a little heavy stuff to come back with after a long weekend, but we look forward to seeing you next time.

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