Expect More Medical Record Audits Under Biden

More covered health services and more policing under the Biden administration.

President Biden’s healthcare policies differ starkly from those of former President Trump’s, and I will discuss some of the key differences in this article. Biden is already sending a clear message to healthcare providers: his agenda includes expanding government-run health insurance and increasing oversight on it.

In 2021, Medicare is celebrating its 55th year of providing health insurance to Americans. The program was first signed into law in 1965 and began offering coverage in 1966. That first year, 19 million Americans enrolled in Medicare for their healthcare coverage. As of 2019, more than 61 million Americans were enrolled in the program.

President Biden is clearly broadening the Patient Protection and Affordable Care Act (PPACA), Medicaid, and Medicare programs. Indicating an emphasis on oversight, President Biden chose former California Attorney General Xavier Becerra to lead the U.S. Department of Health and Human Services (HHS). Becerra was a prosecutor, and plans to bring his prosecutorial efforts to the nation’s healthcare. President Biden used executive action to reopen enrollment in PPACA marketplaces, a step in his broader agenda to bolster the Act with a new optional government health plan.

One of my personal favorite issues that President Biden will address is parity in Medicare coverage for medically necessary oral healthcare. Medicare coverage currently extends to the treatment of all microbial infections – except for those originating from the teeth or periodontium. There is simply no medical justification for this exclusion, especially in light of the broad agreement among healthcare providers that such care is integral to the medical management of numerous diseases and medical conditions.

The Biden Administration has also taken steps to roll back a controversial Trump-era rule that required Medicaid beneficiaries to work in order to receive coverage. Two weeks ago, the Centers for Medicare & Medicaid Services (CMS) sent letters to several states that received approval for a Section 1115 waiver for Medicaid services. CMS said it was beginning a process to determine whether to withdraw the approval. States that received a letter included Arizona, Arkansas, Georgia, Indiana, Nebraska, Ohio, South Carolina, Utah, and Wisconsin. The work requirement waivers that HHS approved at the end of the previous administration’s term may not survive the new presidency.

Post-payment reviews by Recovery Audit Contractors (RACs) will increase during the Biden Administration. The RAC program was created by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. As we all know, the RACs are responsible for identifying Medicare overpayments and underpayments, and for highlighting common billing errors, trends, and other Medicare payment issues. In addition to collecting overpayments, the data generated from RAC audits allows CMS to make changes to prevent improper payments in the future. The RACs are paid on a contingency fee basis, and therefore only receive payment when recovery is made. This can create overzealous auditors, and many times, inaccurate findings. In 2010, the Obama Administration directed federal agencies to increase the use of auditing programs such as the RACs to help protect the integrity of the Medicare program. The RAC program is relatively low-cost and high-value for CMS. To that end, the aforementioned expansion of audits will not only involve RAC auditors, but increased oversight by Medicare Administrative Contractors (MACs), Comprehensive Error Rate Testing (CERT), Uniform Program Integrity Contractors (UPICs), etc.

Telehealth audits will also be a focus for President Biden. With increased use of telehealth due to COVID comes increased telehealth fraud – at least allegedly. On Sept. 30, 2020, the inter-agency National Health Care Fraud and Opioid Takedown initiative announced that it charged hundreds of defendants allegedly responsible for – among other things – $4.5 billion in false and fraudulent claims relating to telehealth advertisements and services. Unfortunately for telehealth, bad actors are prevalent, and will spur on more and more oversight.

Both government-initiated litigation and qui tam suits appear set for continued growth in 2021 as well. Healthcare fraud and abuse dominated 2020 federal False Claims Act (FCA) recoveries, with almost 85 percent of FCA proceeds derived from HHS. The increase of healthcare enforcement payouts reflects how important government-paid health insurance is in America. Becerra’s incoming team is, in any case, expected to generally ramp up law enforcement activities – both to punish healthcare fraud and abuse, and as an exercise of HHS’s policy-making authorities.

With more than $1 billion of FCA payouts in 2020 derived from federal Anti-Kickback Statute (AKS) settlements alone, HHS’s heavy reliance on this one authority likely results from its singular breadth and usefulness in addressing varied forms of costly fraud and abuse. For these same reasons, prosecutors and qui tam relators will likely continue to focus their efforts on AKS enforcement in the Biden Administration, despite the recent regulatory carveouts from the AKS and an emerging legal challenge from drug manufacturers.

The PPACA individual mandate is also back in. The last administration got rid of the individual mandate when former President Trump signed the GOP tax bill into law in 2017. President Biden will bring back the penalty for not being covered by health insurance under his plan. Since the individual mandate currently is not federal law, a Biden campaign official said that he would use a combination of executive orders to undo the changes.

In an effort to lower the skyrocketing costs of prescription drugs, President Biden’s plan would repeal existing law that currently bans Medicare from negotiating lower prices with drug manufacturers. He would also limit price increases for all brand, biotech, and generic drugs, and launch prices for drugs that do not have competition.

Consumers would also be able to buy cheaper prescription drugs from other countries, which could help mobilize competition. And Biden would terminate their advertising tax break in an effort to also help lower costs.

In all, the Biden Administration is expected to expand healthcare – including medical, oral, and telehealth – while simultaneously policing healthcare providers for aberrant billing practices.

My advice for providers: be cognizant of your billing practices. You have an opportunity with this administration to increase revenue from government-paid services but do so compliantly.

Programming Note: Listen to Knicole Emanuel’s RAC Report every Monday on Monitor Mondays at 10 a.m. Eastern and sponsored by MRA.

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Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

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