The Nurse’s Role in Preventing and Detecting Fraud and Abuse

1. The Nurse’s Role in Preventing and Detecting Fraud and Abuse Joan A. Kavuru, J.D., R.N. Director of Compliance The Brody School of Medicine October 27, 2006

2. Overview • The Importance of Nurses to the BSOM Compliance Program • Particular Areas of Concern that Impact Nursing • Reporting Incidents of Potential Non-Compliance • Practical Issues in Everyday Practice

3. Importance of Nurses to the BSOM Compliance Program • BSOM Compliance Program is an oversight mechanism that provides a framework to prevent, detect, and resolve potential incidents of non-compliance • Why do we have a compliance program? • Industry standard; Office of Inspector General (“OIG”) guidance • New requirement to receive Medicaid funding under the Deficit Reduction Act • We want to do the right thing • What is considered an “effective” compliance program? • Seven key elements as set forth by the OIG • Assess, educate, implement, monitor, educate (again), and follow-up.

4. Importance of Nurses to the BSOM Compliance Program • Many nurses are on the “front lines” and identify issues every day • Possess rich institutional knowledge and history • Viewed as honest and trustworthy • Patients and co-workers tend to confide in nurses • Patient care and safety is #1

5. Particular Areas of Concern that Impact Nursing Background: The False Claims Act • False Claims Act (FCA) prohibits anyone from “knowingly” submitting a false or fraudulent claim for payment • “Knowingly” means (i) actual knowledge; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information. • No proof of specific intent to defraud is required; liability is proven by evidence of deliberate ignorance or reckless disregard of truth of the claim

6. Particular Areas of Concern that Impact Nursing Background: The False Claims Act (cont’d) • Damages: Triple damages and penalties of $5,500 to $11,000 per false claim for submission or causing submission of false claim. • “Claim” is generally defined as a CMS 1500 • May result in imposition by the government of a “corporate integrity agreement”

7. Particular Areas of Concern that Impact Nursing Background: Qui Tam Actions • The FCA allows a private person (a “qui tam relator”) to bring a civil action in the name of the United States. • Qui tam relators share in any money recovered (including settlements). • If government joins in action, relator is entitled to 15% to 25% of proceeds depending on relator’s contribution to case. • If government does not join in action, court may award relator not less than 25% and not more than 30% of proceeds.

8. Particular Areas of Concern that Impact Nursing Poor Quality of Care • May be actionable under the False Claims Act to knowingly (or with reckless disregard) bill for services that are worthless. • Medicare only pays for services “reasonable and necessary” to treat a condition – poor quality services do not meet this definition. • False Certification Theory: This theory has been widely used in the nursing home industry to combat poor quality care. • Has resulted in large settlements: Vencor $219 Million in 2001 • Theory is being extended to hospitals – submission of quality data to CMS may increase exposure

9. Particular Areas of Concern that Impact Nursing Billing and Reimbursement • Billing for services not performed (or underperformed) • Ordering/billing for medically unnecessary services • Use of residents and teaching physician supervision • In order for attending physicians to bill for services performed by the resident, the attending must be present during the key portion of the exam or procedure (exceptions exist for primary care clinics) • Doesn’t mean that attending has to be physically present during every resident visit, but attending cannot bill unless present

10. Particular Areas of Concern that Impact Nursing Billing and Reimbursement • Incident-to services are those services commonly furnished in a physician’s office that are “incident to” the professional services of a physician. • Incident-to services performed by a nurse or mid-level provider (e.g., nurse practitioner, physician assistant, etc.) can be billed under the physician’s provider number provided that: • Physician must personally perform an initial service for each new condition, make an initial diagnosis, and establish a treatment plan.

11. Particular Areas of Concern that Impact Nursing Billing and Reimbursement (Incident-to Requirements cont’d) • Physician must personally perform subsequent services at a frequency that reflects his/her active participation in and management of the course of the treatment for each medical condition (i.e., physician must examine patient on a regular basis, e.g., every third or fourth visit). • Services must be performed under a physician’s direct personal supervision: • Present in the office suite and immediately available to provide assistance and direction throughout the time the ancillary staff or NPP is performing the “incident to” services. • Billed under attending physician’s number

12. Particular Areas of Concern that Impact Nursing Providing Services under the “Incident-to” Billing Rules (cont’d) • Services must be performed by an individual who is an employee (or leased employee) or independent contractor of BSOM. • Incident to services provided by NPPs may be billed using the CPT code for established patient visit that best describes the E/M service furnished. • Incident-to services provide by an R.N. can only be billed using the lowest level CPT code • Important points related to incident-to billing: • Incident to services can never be applied to a new patient (i.e., patient’s first visit) • Cannot be furnished in an inpatient setting

13. Particular Areas of Concern that Impact Nursing Billing and Reimbursement – Split or Shared Services • For evaluation and management (E/M) services, nurses are only permitted to perform and document the past social family history and the review of systems • Cannot perform or document further portions of the evaluation and management (E/M) service for the physician (i.e., history of present illness, physical exam, or medical decision making) • May act as a “scribe” – but must actually witness the physician performing the service and requires physician co-signature • Do not use the physician’s password to document in Centricity; level 2 HIPAA violation and results in disciplinary action.

14. Particular Areas of Concern that Impact Nursing Time and Effort Reporting • If you are working on a project that is funded with outside grant monies, you are required to complete a time and effort report • Are not permitted to “overcharge” grant for time spent on grant-funded project • Cannot inflate time spent on grant • Many recent settlements related to poor time and effort practices • University of Alabama $3.39 million settlement: Inflated percentage of work effort researchers devoted to projects to more quickly access grant money; also siphoned off money to cover budget shortfalls in other areas and pay people who did not work on projects

15. Particular Areas of Concern that Impact Nursing Research • Clinical Trials Billing • Cannot bill third party payors for items that are reimbursed by sponsor • Conflict of Interest Issues • Full disclosure required: consulting arrangements, ownership in sponsor – just to name a few • Compromises integrity of study and patient safety

16. Particular Areas of Concern that Impact Nursing Pharmaceutical and Medical Device Company Marketing Practices • Egregious practices have been targeted by the government • PhRMA Guidelines set forth standards for marketing practices • Supply of meals – education must be provided • Some medical schools have recently adopted a “no funds” policy

17. Particular Areas of Concern that Impact Nursing Pharmaceutical and Medical Device Company Marketing Practices • Implicates the Federal Antikickback Statute • Forbids any knowing and willful conduct involving the solicitation, receipt, offer or payment of any kind of remuneration in return for referring an individual or for recommending or arranging the purchase, lease or ordering of an item or service that may be paid for under a federal health care program. • Criminal and civil liability for failure to comply

18. Reporting Incidents of PotentialNon-compliance • Encouraged to use supervisors, administrators as the first line of reporting of any known incidents of noncompliance. • BSOM Compliance Hotline • Available 24 hours a day, 7 days a week • Can be anonymous • Toll free 1-866-515-4587 • No retaliation for good faith reporting of incidents of noncompliance. • All good faith reports will be fully investigated. • Confidentiality maintained to the fullest extent possible. • As nurses you have a professional duty to report potential problems

19. Practical Issues in Everyday Practice Questions/Discussion

20. Office of Compliance at BSOM • Serves as a resource to all faculty and staff • Contact information: • 744-5200 • kavuruj@ecu.edu • Thank you for attending!