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The money is expected to be returned federal government.

In the spring 2022 report to Congress, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) boasted that almost $3 billion is expected to be returned to federal coffers through OIG audits and investigations.

OIG submits semiannual reports to Congress regarding the status of its program integrity and oversight activities. OIG often outlines its areas of enforcement focus, including provider types, business models, and industry trends that OIG sees as possible sources of violations of federal healthcare laws or regulations. This report explains the collection of research conducted between Oct. 1, 2021, and March 31, 2022. The report highlights a multitude of categories that have raised concerns for OIG, including COVID-19 laboratory tests, nursing homes, and hospice care, among others.

In this set of investigations, OIG identified expected audit recoveries of around $1.14 billion and expected investigative recoveries of around $1.44 billion. The investigations also led to 1,043 exclusions from the federal health insurance programs, 320 civil actions, and 320 criminal actions.

As the reports detail specific areas of concern, OIG mentions how COVID-19 testing has impacted Medicare Part B spending. According to OIG, COVID-19 tests drove an increase in total Medicare Part B spending on laboratory tests in 2020. While $1.5 billion was spent on COVID-19 tests, spending on non-COVID-19 tests declined by $1.2 billion. At this point, OIG and the Centers for Medicare & Medicaid Services (CMS) have performed few Medicare audits of claims for COVID-19 testing, despite warnings early in the pandemic of significant audit activities. Moreover, such audits are becoming increasingly frequent in the commercial setting. Specifically, commercial insurers and health plans have focused on testing performed for travel or returning to work, as well as challenges to standing orders, online questionnaires, and billing for specimen collections. Audits of these tests are likely to continue to increase in the future.

The report also looked at improving oversight for nursing homes and skilled nursing facilities (SNFs), whose residents were significantly impacted by the COVID-19 pandemic due to age, underlying medical conditions, and proximity to one another within such facilities. OIG indicated that it intends to focus on improving nursing home staffing levels/training, holding poorly performing nursing homes accountable, and increasing transparency to help families find the best available options for prospective residents. Nursing homes and SNFs should be aware of this increased scrutiny, and that they will likely be affected by it.

Beyond these general areas, OIG discussed neurostimulator surgeries and hospice care in significant detail. Regarding neurostimulator implantation surgeries, OIG found that more than 40 percent of providers did not comply with Medicare requirements when billing for these procedures. According to OIG, 2016 and 2017 records showed $636 million in unallowable Medicare payments to providers and $54 million in unnecessary copays and deductibles paid by beneficiaries. In hospice care, OIG alleged that Medicare is frequently being charged twice for the same items and services that are included in the hospice rate. In other words, providers are billing Medicare for hospice items separately when these items are already covered under Medicare’s per-diem payments for hospice. Between 2010 and 2019, nonhospice payments for hospice care totaled up to $6.6 billion. The report likely signals that OIG will conduct significant audits of hospice providers and other providers that provide services to hospice patients.

OIG also brought up a new area of concern in the realm of program integrity: the increasing trend of genetic testing. During the audit period of 2016 to 2019, OIG found an increase in genetic test payments, genetic tests performed, the number of laboratories that received more than $1 million in Medicare reimbursement for genetic testing, and the number of providers ordering genetic testing for their beneficiaries. This significant trend has raised concerns about the possibility of excessive genetic testing and fraud, so this area will likely be subject to increased oversight in the near future.

Finally, the report warns about allegations of Provider Relief Fund (PRF) fraud – and recent litigation on the issue. A medical supply company in California faced accusations from OIG over its eligibility to receive a payment under the PRF. OIG alleged that the company knowingly made a false statement in the attestation required to retain a PRF payment. Specifically, OIG alleged that the company represented that it provided services to actual or possible COVID-19 patients after Jan. 31, 2020, and thus was eligible to receive a PRF payment, when in fact it had not. The provider entered into a $62,528.73 settlement with OIG to resolve the accusations, representing a return of the entire PRF payment received, plus a 10-percent penalty. To receive or retain payments under the PRF, providers had to attest to a number of statements, including eligibility to receive the funds and a promise to use the funds only for particular purposes. These attestations are a primary tool for OIG in PRF enforcement.

Each of these trends has become a cause of concern for OIG, and it appears that this report serves as a warning. It is in the best interests of providers to review their practices at this time and to see if there are any potential causes for concern.

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Andrew Wachler Esq.

Andrew B. Wachler, Esq. is a partner with Wachler & Associates, P.C. Mr. Wachler has been practicing healthcare law for over 30 years. He counsels healthcare providers, suppliers and organizations nationwide in a variety of healthcare legal matters. In addition, he writes and speaks nationally to professional organizations and other entities on healthcare law topics such as Medicare and 3rd party payor appeals, Stark law and Fraud and Abuse, regulatory compliance, enrollment and revocation, and other topics. He often co-speaks with Medicare and other government officials. Mr. Wachler has met with the Centers for Medicare & Medicaid Services (CMS) policy makers on numerous occasions to effectuate changes to Medicare policy and obtain fair and equitable reimbursement for health systems.

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