Compliance Q & A

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How well do you know compliance requirements?

By Mary R. Daulong, PT, CHC, CHP

Therapists and practice owners are in a complicated and risky situation when it comes to finding accurate answers to compliance requirements. Each day there appears to be yet another regulation or another modification or escalation to an existing regulation. How and when are practitioners expected to find the time to monitor the ever-changing regulatory environment?

While we all need to be accountable as professionals, we can accept a little help from a qualified source. As a compliance consultant I, along with my peers, spend hours validating resources so that a client, a colleague, or a student can feel confident that the answer provided is accurate and has been authenticated.

I would like to share with you some questions I have fielded and cases I have encountered in the past month or so. (I have provided resources online). As you read this column, answer the questions posed by circling “yes” or “no.” If you selected the correct answer, then pat yourself on the back and just file the answer. If, however, you did not have the correct answer, please take the time to read the supporting information online.

1. Is there a potential that I could lose my Medicare billing privileges if I do not report a change in enrollment information such as a change in practice location or final adverse action?

Yes.   No.

2. Could I be sanctioned for accepting in-network payment rates from a patient if I am out-of-network with that payer?

Yes.   No.

3. Are the new Medicare Supplemental Medical Review Contractor and the Office of Inspector General focusing on the number of units a therapist bills in a given day?

Yes.   No.

4. Will the new alternative payment system for interventions (treatments) go into effect January 1, 2017?

Yes.   No.

5. Is it true that the Physician Quality Reporting System (PQRS) is being retired, as it currently exists, on December 31, 2016?

Yes.   No.

6. Would I meet the Health Insurance Portability and Accountability Act (HIPAA) security requirement of conducting a Risk Assessment, if I only performed it once?

Yes.   No.

7. Do private practices have to comply with Occupational Safety & Health Administration’s (OSHA) Bloodborne Pathogens Standard?

Yes.   No.

8. Do I have to update my OSHA Safety Data Sheets (formerly Material Safety Data Sheets) to comply with the Globally Harmonized System effective June 1, 2016?

Yes.   No.

9. Does my workforce have to be educated on the new OSHA labeling system?

Yes.   No.

10. Does the “one to one” Current Procedural Terminology (CPT) coding definition apply to all patients regardless of payer classification?

Yes.   No.

11. Can a physical therapist assistant treat a Tricare patient under the supervision of a physical therapist?

Yes.   No.

12. Can I bill for a reevaluation on Medicare patients solely because my state’s practice act requires monthly reevaluations on all patients?

Yes.   No.

13. Is a physical therapist in private practice (PTPP) required to have a site visit because PTPPs are in Medicare’s Moderate Risk Classification as it relates to fraud and abuse?

Yes.   No.

14. Should I expect a basic site visit if I am a newly enrolled practice; if I add a physical therapist to the practice; if I change or add a practice location; or if I, my practice, or staff are due to revalidate enrollment with Medicare?

Yes.   No.

15. Can Medicare recoup payment if a timely appeal request is made at either and/or both the first level and second level of appeals before the contractor has determined that there was actually an overpayment?

Yes.   No.

Answers with supporting references:

1. Yes
Pub. 100-08 Transmittal: 304 Date: September 25, 2009 Change Request: 6642

Revocation 11 (42 CFR §424.535(a)(9)): If the individual or organization reports a change in practice location more than 30 days after the effective date of the change, the contractor shall not revoke the supplier’s billing privileges on this basis. However, if the contractor independently determines—through an on-site inspection under 42 CFR 424.535(a)(5)(ii) or via another verification process—that the individual’s or organization’s address has changed and the supplier has not notified the contractor of this within the aforementioned 30-day timeframe, the contractor may revoke the supplier’s billing privileges.

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2. Yes
Providers have encouraged patients to continue receiving services despite the provider’s out-of-network status by waiving or reducing the increased portion of the copayment, coinsurance, or deductible amount attributable to the out-of-network services. Notably, this reduction or waiver is being given without regard to the patient’s financial ability to pay in an attempt to create parity for the member so that the cost to the plan member is the same as if he or she had gone to an in-network provider (the practice). But providers who engage in this practice risk being charged with violating state and federal laws and sued by managed care organizations (MCOs).

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3. Yes
CMS has tasked Strategic Health Solutions as the Supplemental Medical Review Contractor (SMRC) with performing this medical review on a postpayment basis. The SMRC will be selecting claims for review based on:

  • Providers with a high percentage of patients receiving therapy beyond the threshold as compared to their peers during the first year of the Medicare Access and CHIP Reauthorization Act (MACRA)
  • Therapy provided in skilled nursing facilities (SNFs), therapists in private practice, and outpatient physical therapy or speech-language pathology providers (OPTs) or other rehabilitation providers

Of particular interest in this medical review process will be the evaluation of the number of units/hours of therapy provided in a day.

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4. No
The proposed physical therapy evaluation and reevaluation codes will be implemented January 1, 2017. At this time there is no set implementation date for the proposed intervention codes.

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5. Yes
The current quality reporting programs under Medicare part B will be replaced with a new quality reporting program, the Merit-based Incentive Payment System (MIPS), in 2017 as required by the Medicare Access and CHIP Reauthorization Act of 2015 legislation. MIPS will begin in 2017 for physicians and other practitioners, but will not include physical therapists.

The Secretary has the discretion to add physical therapists to MIPS beginning in the 2019 reporting year (2021 payment adjustment year).

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6. No
The risk analysis process should be ongoing. In order for an entity to update and document its security measures “as needed,” which the Rule requires, it should conduct continuous risk analysis to identify when updates are needed (45 C.F.R. §§ 164.306(e) and 164.316(b)(2)(iii). The Security Rule does not specify how frequently to perform risk analysis as part of a comprehensive risk management process. The frequency of performance will vary among covered entities. Some covered entities may perform these processes annually or as needed (e.g., biannually or every 3 years) depending on circumstances of their environment.

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7. Yes
The standard’s requirements state what employers must do to protect workers who are occupationally exposed to blood or other potentially infectious materials (OPIM), as defined in the standard. That is, the standard protects workers who can reasonably be anticipated to come into contact with blood or OPIM as a result of doing their job duties.

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8.Yes
June 1, 2016 is the final deadline and date by which employers must be in full compliance with the Globally Harmonized System (GHS). That means making any necessary updates to their hazard communication programs, training employees on new hazards identified during the reclassification process, updating workplace labels, and anything else required by HazCom 2012.

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9. Yes
December 1, 2013 was the date by which employers were required to train employees on the new SDSs and labels in GHS format.

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10. Yes
Covered entities must adhere to the content and format requirements of each transaction. Under HIPAA, the Department of Health and Human Services (HHS) also adopted specific code sets for diagnoses and procedures to be used in all transactions, including the Current Procedural Terminology (CPT®) (outpatient services/procedures), the Health Care Procedure Coding System (HCPCS) (ancillary services/procedures), International Classification of Diseases, Ninth Revision (ICD-9) (diagnosis and hospital inpatient procedures), and ICD-10 (as of October 1, 2015).

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11. No
In contrast, when a physical therapist assistant (PTA) performs a physical therapy modality, he or she is performing a medical procedure and rendering treatment, not simply providing a service that is incidental to treatment. Therefore, the difference here is that unauthorized TRICARE providers working under the physician’s supervision do not “treat” patients, whereas a PTA (currently an unauthorized TRICARE provider) working under a physical therapist’s supervision does.

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12. No
Reevaluation provides additional objective information not included in other documentation. Reevaluation is separately payable and is periodically indicated during an episode of care when the professional assessment of a clinician indicates a significant improvement, or decline, or change in the patient’s condition or functional status that was not anticipated in the plan of care. Although some state regulations and state practice acts require reevaluation at specific times, for Medicare payment, reevaluations must also meet Medicare coverage guidelines, noted above. The decision to provide a reevaluation shall be made by a clinician.

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13. Yes
Consistent with 42 CFR § 424.518, newly enrolling and existing providers and suppliers will, beginning on March 25, 2011, be placed into one of three levels of categorical screening: limited, moderate, or high. Physical therapists enrolling as individuals or as group practices are in the “moderate” level of categorical screening, which requires a site visit by a National Site Visit Contractor (NVSC). Site visits are required for:

  • Initial application
  • Revalidation
  • Practice location addition and/or change
  • Change of ownership that results in a new taxpayer identification number/employer identification number (TIN/EIN)
  • Reactivation of privileges

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14. Yes
Specifically, a contractor’s report for an unannounced site visit will document the date and time of the visit and observations made at the facility, such as the facility was vacant and free of all furniture, a notice of eviction or similar documentation is posted at the facility, or the space is occupied by another company. The contractor also will photograph the provider or supplier for inclusion in the provider’s file. In terms of the extent of the visit, the contractor will determine whether the following criteria are met:

  • The facility is open.
  • Personnel are at the facility.
  • Customers are at the facility (if applicable to that provider or supplier type), and
  • The facility appears to be operational.

This will require the site visitor(s) to enter the provider’s practice or the supplier’s site rather than simply conducting an external review. If any of the 4 elements listed above are not met, the provider’s enrollment application may be denied or Medicare billing privileges revoked.

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15. No
For overpayments subject to this limitation on recoupment, Medicare will not begin overpayment collection of debts (or will cease collections that have started) when it receives notice that the provider has requested a Medicare contractor redetermination (first level of appeal) or a reconsideration by a Qualified Independent Contractor (QIC).

As appropriate, Medicare will resume overpayment recoveries with interest if the Medicare overpayment decision is upheld in the appeals process. If the dministrative Law Judge (ALJ)-level process reverses the Medicare overpayment determination, Medicare will refund both principal and interest collected, and also pay 93 percent interest on any recouped funds that Medicare took from ongoing Medicare payments.

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Mary R. Daulong, PT, CHC, CHP, is a PPS member and the owner of Business & Clinical Management Services, Inc., a consulting firm specializing in outpatient therapy compliance, including documentation, coding and billing, enrollment and credentialing, and Health Insurance Portability and Accountability Act and Occupational Safety and Health Administration regulation education. She is also the author of both The Private Practice Compliance Manual and The Third-Party Biller Compliance Manual. She can be reached at daulongm@bcmscomp.com.

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