OIG Work Plan Updates Target COVID-19 Related Fraud

The U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG) recently released an ambitious update to its Work Plan that includes 16 areas of interest for the government watchdog.

The Work Plan is updated monthly and outlines the various projects the OIG intends to focus on in the coming months.

The pandemic has caused the OIG to focus its efforts on reimbursement and the potential for fraud and abuse as it relates to COVID-19.

We focus on three of the areas that are most relevant to our clients:

Laboratory billing for potential fraud and abuse with COVID-19 add-on testing. Faced with a public health emergency, the Centers for Medicare & Medicaid Services (CMS) relaxed rules related to COVID-19 testing and other diagnostic lab testing so that an order for such tests is no longer needed from the treating physician or non-physician practitioner. The OIG noted that relaxation of these rules could allow unscrupulous actors more leeway for fraudulent billing of unnecessary add-on testing. Such testing might be related to potentially fraudulent billing for associated respiratory pathogen panel (RPP) tests, allergy tests, or genetic tests.

The OIG noted that it will examine Medicare claims data for laboratory testing to identify trends in the use of these add-on tests and identify patterns by laboratories that may indicate fraud and abuse.

Although we are only a few months into the pandemic, some have already found ways to bilk the system in this way. In March, a Georgia man was charged for his alleged role in a conspiracy to defraud federally funded and private healthcare benefit programs by submitting fraudulent testing claims for COVID-19 and genetic cancer screenings.

Erik Santos is alleged to have offered kickbacks in exchange for medically unnecessary tests, including those for COVID-19 “provided that those tests were bundled with a much more expensive respiratory pathogen panel (RPP) test, which does not identify or treat COVID-19,” according to a news release.

Not only do those engaging in such fraudulent activity face the prospect of being charged under the Anti-Kickback Statute (AKS), but laboratories also may be charged under the Eliminating Kickbacks in Recovery Act (EKRA).

EKRA was enacted in 2018 as part of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act  (SUPPORT Act), to deal with the opioid crisis. EKRA is more broad than the AKS in that it prohibits soliciting, receiving, offering or paying “remuneration (including any kickback, bribe or rebate)” in return for referrals to, or in exchange for, using the services of, a recovery home, clinical treatment facility or laboratory.

EKRA not only applies to reimbursement by government programs such as Medicare, but also to private, commercial insurers.

Labs and providers would be well-advised to familiarize themselves with EKRA.

OIG also will be looking at the expansion of telehealth during the COVID-19 emergency.

As we previously wrote about, the use of telehealth during the pandemic has been growing exponentially.

As with anything that grows quickly, there is the increased potential for problems. The OIG has said rapid expansion of telehealth may pose challenges for state agencies and providers, including state oversight of these services.

The agency says it will seek to determine whether state agencies and providers complied with federal and state requirements for telehealth services under the national emergency declaration and whether the states gave providers adequate guidance on telehealth requirements.

In April, the government released a toolkit for states to help accelerate the adoption of broader telehealth coverage policies in the Medicaid and Children’s Health Insurance Programs (CHIP).

In an effort to expand access to healthcare, regulations relating to telehealth have been relaxed, which opens the door, not only to fraudulent activity, but also to matters relating to patient safety.

As we wrote about, even before the COVID-19 pandemic, as telemedicine has increased in popularity and use, the list of telemedicine services covered by Medicare also has grown. With that growth has come more opportunity for fraudulent behavior.

Finally, OIG will be focusing on Unified Program Integrity Contractors (UPICs).

Created by CMS, UPICs conduct audits to unearth fraud and abuse in healthcare. That’s a huge undertaking when you consider that Medicare and Medicaid provide health coverage to more than 100 million Americans.

OIG said it will continue its work examining the results from benefit integrity contractors’ identification and investigation of fraud, waste and abuse. It also will identify any barriers and challenges that UPICs have run into while conducting unified benefit integrity activities across those government payor programs.

The UPICs are located in five geographic jurisdictions across the U.S. Healthcare providers who become the target of a UPIC audit should immediately contact an experienced healthcare fraud defense attorney. Better yet, you should already have systems in place that are designed to keep your practice from becoming the target of an audit.

The Health Law Offices of Anthony C. Vitale can assist you in a wide-range of areas relating to healthcare, including preparation for an audit, fraud and abuse defense and matters relating to billing and coding.

Feel free to give us a call at 305-358-4500 or email info@vitalehealthlaw.com

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The Health Law Offices of Anthony C. Vitale