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What all dietetics professionals need to know about the impact of gaining provider status in the Medicare program

Written by Ellen Pritchett, RD, CPHQ Director ADA Quality Management and Outcomes Research, the following article appeared in the Journal of the American Dietetic Association in April 2002

Not Business as Usual

Along with recognition as Medicare providers* for the Medical Nutrition Therapy (MNT) benefit for diabetes and kidney disease comes a higher level of exposure and accountability for dietetics professionals. Dietetics professionals have been able to operate independently; setting their own rates, administrative functions, billing practices, etc. As of January 2002, all this changed. Medicare MNT providers are now exposed to potential civil and monetary penalties if they fail to meet specific civil and administrative regulatory statutes related to fraud and abuse of the Medicare program. The federal government suggests Medicare MNT providers establish a compliance program. ADA assists practitioners to meet compliance guidelines by providing key resources: the Code of Ethics, the Standard of Professional Performance, the Professional Development Portfolio, the MNT Medicare Benefit Provider publication and Medicare MNT Benefit workshops.

What you need to know: failing to meet Medicare administrative rules can lead to big problems?

For example:

  • a practitioner who ignores provider update bulletins and thus does not inform his/her staff of changes in the Medicare billing guidelines or update his/her billing system in accordance with changes to the Medicare billing practices and claims for non-reimbursable services are submitted as a result, the False Claims Act has been violated.

  • a practitioner cannot just state they did not know.

  • the federal government does not have to show that a provider specifically intended to defraud a Federal health care program in order to prove a provider violated the statute.

  • the Civil Monetary Penalties Law (CMPL) test of compliance is ''knows or should know''.

  • examples of penalties for non compliance: The penalty for violating the False Claims Act is a minimum of $5,500 up to a maximum of $11,000 for each false claim submitted. In addition to the penalty, a provider could be found liable for damages of up to three times the amount unlawfully claimed. Violation of the CMPL may result in a penalty of up to $10,000 per item or service and up to three times the amount unlawfully claimed.

  • the provider may be excluded from participation in Federal health care programs.

  • even your own billing company, support staff or Medicare beneficiaries can blow the whistle on you if the benefit is not administered appropriately.

  • all Centers for Medicare and Medicaid Services (CMS) carriers, the local insurer that contracts with Medicare for Part B billing, are instructed to perform new provider/ new benefit monitoring. Contractors must monitor through data analysis the billing patterns of new providers and for new statutory benefits to ensure correct coverage and coding from the beginning.

Table 1 contains a summary of two of the more frequently cited federal civil and administrative statutes related to fraud and abuse in the context of the Medicare program, the False Claims Act and Civil Monetary Penalties Law (1). Additional information on the Medicare's Integrity Program established by Congress in 1996 can be found at: http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/pim83c04.pdf

Table 1

I. The False Claims Act (31 U.S.C. 3729- 3733)
Description of Unlawful Conduct
This is the law most often used to bring a case against a health care provider for the submission of false claims to a Federal health care program. The False Claims Act prohibits knowingly presenting (or causing to be presented) to the Federal Government a false or fraudulent claim for payment or approval. Additionally, it prohibits knowingly making or using (or causing to be made or used) a false record or statement to get a false or fraudulent claim paid or approved by the Federal Government or its agents, like a carrier.

Definitions

False Claim — A ''false claim'' is a claim for payment for services or supplies that were not provided specifically as presented or for which the provider is otherwise not entitled to payment. Examples of false claims for services or supplies that were not provided specifically as presented include, but are not limited to:

  • a claim for a service or supply that was never provided.

  • a claim indicating the service was provided for some diagnosis code other than the true diagnosis code in order to obtain reimbursement for the service (which would not be covered if the true diagnosis code were submitted).

  • a claim indicating a higher level of service than was actually provided.

  • a claim for a service that the provider knows is not reasonable and necessary.

  • a claim for services provided by an unlicensed/credentialed individual.
     

Knowingly — To ''knowingly'' present a false or fraudulent claim means that the provider: (1) Has actual knowledge that the information on the claim is false; (2) acts in deliberate ignorance of the truth or falsity of the information on the claim; or (3) acts in reckless disregard of the truth or falsity of the information on the claim. It is important to note the provider does not have to deliberately intend to defraud the Federal Government in order to be found liable under this Act. The provider need only ''knowingly'' present a false or fraudulent claim in the manner described above.

Deliberate Ignorance — To act in ''deliberate ignorance'' means that the provider has deliberately chosen to ignore the truth or falsity of the information on a claim submitted for payment, even though the provider knows, or has notice, that information may be false. An example of a provider who submits a false claim with deliberate ignorance would be a practitioner who ignores provider update bulletins and thus does not inform his/her staff of changes in the Medicare billing guidelines or update his/her billing system in accordance with changes to the Medicare billing practices. When claims for non-reimbursable services are submitted as a result, the False Claims Act has been violated.

Reckless Disregard — To act in ''reckless disregard'' means that the provider pays no regard to whether the information on a claim submitted for payment is true or false. An example of a provider who submits a false claim with reckless disregard would be a practitioner who assigns the billing function to an untrained office person without inquiring whether the employee has the requisite knowledge and training to accurately file such claims.

Penalty for Unlawful Conduct
The penalty for violating the False Claims Act is a minimum of $5,500 up to a maximum of $11,000 for each false claim submitted. In addition to the penalty, a provider could be found liable for damages of up to three times the amount unlawfully claimed.

Examples

  1. A RD submitted claims to Medicare representing that she had personally performed certain services when, in reality, the services were performed by an RD not enrolled in the Medicare program

  2. A RD intentionally upcoded office visits that were submitted for payment to Medicare.

  3. A RD, knowingly submitted claims to the Medicare for statutorily non covered services.
     

II. Civil Monetary Penalties Law (42 U.S.C. 1320a-7a)
Description of Unlawful Conduct
The Civil Monetary Penalties Law (CMPL) is a comprehensive statute that covers an array of fraudulent and abusive activities and is very similar to the False Claims Act. For instance, the CMPL prohibits a health care provider from presenting, or causing to be presented, claims for services that the provider ''knows or should know'' were:

  • not provided as indicated by the coding on the claim;

  • not medically necessary;

  • furnished by a person who is not licensed/credentialed and enrolled in the Medicare program

  • furnished by a licensed /credentialed practitioner who obtained his or her license through misrepresentation of a material fact (such as cheating on a credentialing exam);

  • furnished by a RD who was excluded from participation in the Federal health care program to which the claim was submitted.
     

Additionally, the CMPL contains various other prohibitions, including:

  • offering remuneration to a Medicare beneficiary that the person knows or should know is likely to influence the beneficiary to obtain items or services billed to Medicare from a particular provider;

  • employing or contracting with an individual or entity that the person knows or should know is excluded from participation in a Federal health care program.
     

The term ''should know'' means that a provider: (1) Acted in deliberate ignorance of the truth or falsity of the information; or (2) acted in reckless disregard of the truth or falsity of the information. The Federal Government does not have to show that a provider specifically intended to defraud a Federal health care program in order to prove a provider violated the statute.

Penalty for Unlawful Conduct
Violation of the CMPL may result in a penalty of up to $10,000 per item or service and up to three times the amount unlawfully claimed. In addition, the provider may be excluded from participation in Federal health care programs. The regulations defining the aggravating and mitigating circumstances that must be reviewed by the OIG in making an exclusion determination are set forth in 42 CFR part 1001.

Examples

  1. A RD provided group MNT but coded individual MNT on the claim.

  2. A RD consulting company hired RD X to provide services to Medicare beneficiaries without conducting a background check on X. Had the RD consulting company performed a background check by reviewing the HHS- OIG List of Excluded Individuals/Entities. The RD consulting company would have discovered that they should not hire X because X is excluded from participation in Federal health care programs for a period of 5 years.

  3. A RD billed Medicare for MNT services that they knew they did not perform.

  4. A RD billing (or collecting) for any services on a nonassigned basis.

  5. A RD failing to submit a claim for a beneficiary within one year of providing the service; or imposes a charge for completing and submitting the standard claims form.
     


How to comply

There is not specific Office of the Inspector General (OIG) compliance program guidance for dietetics professionals. Dietetics professionals should follow the Compliance Program Guidance for Individual and Small Group Physician Practices1 The compliance guidance includes seven components. The OIG guidance is intended to assist practices in establishing internal controls to promote adherence to federal health care program requirements. The program can be established in a manner that best reflects the nature of each individual practice. The program guidelines can be accessed at https://oig.hhs.gov/authorities/docs/physician.pdf.

 How can ADA help?
I. The Code of Ethics, the Standards of Professional Practice, and the Professional Development Portfolio are tools to assist practitioners to proactively meet the challenges of Medicare provider status.

  • The Code of Ethics2 defines the ethical principles by which dietetics professionals should practice. The Code applies to all ADA members and CDR credentialed professionals.

  • The Standards of Professional Practice3 describe a method or approach for monitoring and improving dietetics practice. The standards are tools defining a minimum expectation of practice but are not a mandatory requirement.

  • The Professional Development Portfolio4 offers a framework for credentialed professionals to develop specific goals, identify learning needs, and pursue continuing professional education to achieve those needs and goals.
     
The Code of Ethics

While the Code of Ethics, the Standards of Professional Practice, and the Professional Development Portfolio are three different products, they work toward the common goal of improving dietetics practice and promoting professional competence and accountability.

II. Medicare MNT reimbursement and compliance resources Academy's Web site also contains information on provider enrollment, benefit requirements, MNT protocols/practice guidelines, claims processing, compliance, and Academy Medicare MNT Benefit Provider Information guide. Visit http://www.eatright/mnt.

Lifelong Learning and Professional Enhancement
All dietetics professionals need to know that Medicare MNT provider status does not mean business as usual. Being proactive about how to do business in the Medicare world is essential.

1Compliance Program Guidance for Individual and Small Group Physician Practices, September 2000, https://oig.hhs.gov/authorities/docs/physician.pdf

2Code of Ethics for the Profession of Dietetics. J Am Diet Assoc. 1999; 99:109-113.

3The American Dietetics Association Standards of Professional Practice for Dietetics Professionals. J Am Diet Assoc. 1998; 98:83-87.

4Professional Development Portfolio. Commission on Dietetics Registration, 2001.

*CMS allows persons credentialed as "registered dietitians" with CDR to use that credential as proof of the education and experience requirements. The statutory intent to recognize state licensure is clear, and dietitians in states with licensure or certification must have obtained the state license or certification to become providers. If RDs practice in more than one state and enroll to become Medicare providers, they will need proof of licensure in all states where they practice. Individuals who complete an accredited dietetics program after completion of a bachelor's degree would meet the legislative intent to qualify as a provider. CMS' final rule clarifies that Medicare will pay dietitians who enroll to obtain provider status in the Medicare program regardless of whether they provide the MNT services in an independent practice setting, hospital outpatient department or any other setting, except for services provided to patients in an inpatient stay in a hospital or skilled nursing facility. Current rules regarding reassignment of benefits apply to MNT. Reassignment applies to RDs who choose to enroll for Medicare provider status, and who are employed by hospitals or physician clinics.

For additional information

The Centers for Medicare and Medicaid Services (CMS) published the final regulations for the Medicare Part B medical nutrition therapy (MNT) benefit in the Federal Register, 42 CFR, Part 405 et al, Vol 66, No. 212, November 1, 2001; Medicare Program; Revisions to Payment Policies and Five-Year Review of and Adjustments to the Relative Values Units Under the Physician Fee Schedule for Calendar Year 2002: Final Rule.

If you want to try to link directly to the government's web site, you can get to it through this link http://www.access.gpo.gov/su_docs/fedreg/a011101c.html and then scroll to the section on the Centers for Medicare & Medicaid Services, then connect to the specific sections of the Federal Register.

The Centers for Medicare and Medicaid Services (CMS) have released the decision memorandum (Feb. 28, 2002) for Medicare Coverage Policy ~ Decisions Duration and Frequency of the Medical Nutrition Therapy Benefit. For a full copy of the final coverage policy, please visit click here.

CMS program memorandum (Feb. 8, 2002) on "Correct Payment for Medical Nutrition Therapy Services Rendered by Registered Dietitians or Nutrition Professionals."

To view Medicare Part B Coverage and MNT Billing Guidelines reprint from the January 2002 Journal of the American Dietetic Association, please click here.