In this OIG roundup, we cover the agency’s plans to modernize and improve the useability of its Compliance Program Guidance, which was first published in 1998.
OIG Updates Compliance Program Guidance
Lab compliance officers take note: On April 24, the U.S. Department of Health and Human Services Office of Inspector General (OIG) announced that it plans to modernize and improve the useability of its Compliance Program Guidance (CPG).1
Significance: The CPG, which the OIG published in 1998, is important because it sets out voluntary measures healthcare providers can take to ensure that their operations don’t run afoul of federal fraud and abuse rules. The CPG materials include the seminal OIG Compliance Program Guidance for Clinical Laboratories laying out the basic architecture of a lab compliance plan.2 The CPG also contains guidance documents for physicians, hospitals, home health agencies, third-party medical billing companies, durable medical equipment suppliers, hospices, Medicare Advantage plans, nursing facilities, ambulance suppliers, and pharmaceutical manufacturers.
While the CPG materials are still valuable sources of compliance insight, they’re also 25 years old and in need of updating. In September 2021, the OIG published a request for information seeking public comments on what it could do to “enhance the usefulness and timeliness of such resources and improve their accessibility and usability.”3 Based on the feedback, the OIG announced it will no longer publish new or updated CPGs in the Federal Register; instead, all current, new, and updated CPG material will be made available on a specific section of the OIG website specifically dedicated to compliance guidance.
The OIG also says it will publish CPGs in two different versions:
- A General CPG (GCPG) for all individuals and entities in the healthcare industry covering general topics like federal fraud and abuse laws, compliance program basics, operating effective compliance programs, and OIG processes and resources, starting at the end of 2023 with updates to follow “as changes in compliance practices or legal requirements warrant.”1
- Industry-specific CPGs (ICPGs) for different types of providers, suppliers, and other participants in healthcare industry subsectors or ancillary industry sectors that will cover fraud and abuse risk areas and address compliance measures for each subsector.
For now, labs may continue to look to the original 1998 CPGs for compliance guidance on the OIG website at the above links while keeping their antennae attuned to changes in general guidance that may come down by the end of the year. The crucial thing to watch out for is publication of the new ICPG for clinical laboratories. However, that’s likely to take at least two years. The OIG expects to begin publishing ICPGs in 2024 with the first two to address Medicare Advantage and nursing facilities, respectively. The agency hasn’t indicated a publishing order or schedule for the remaining ICPGs, including the one for clinical laboratories.
OIG Calls Out CMS for Allowing Duplicate Medicare Payments to Individuals with VHA Benefits
Medicare could have saved up to $128 million over five years if CMS had implemented controls to address duplicate payments for services provided to individuals with Medicare and Veterans Health Administration (VHA) benefits. That’s both the conclusion and title of new OIG report A-09-22-03004 published on April 24.4
Duplicate Medicare and VHA payments to the same individuals is a longstanding concern that dates to a Government Accountability Office report from 1979 (when the GAO was the General Accounting Office). With this issue in mind, the OIG audited $19.2 billion in Medicare Parts A and B payments for 36.3 million claims for people eligible for both Medicare and VHA benefits over a five-year period from January 2017 through December 2021.
OIG Audit Findings
The auditors found that Medicare made $128 million in duplicate payments to healthcare providers for services that were authorized and paid for by VA’s community care programs. These payments shouldn’t have been made because VHA is solely responsible for paying providers for the medical services it authorizes.
The OIG report also explains why they occurred, namely CMS’s failure to implement controls to prevent Medicare from making duplicate payments for services provided to those with Medicare and VHA benefits. “Specifically, CMS did not establish a data-sharing agreement with VHA for the ongoing sharing of data between the two agencies and did not develop an interagency process to include VHA enrollment, claims, and payment data in CMS’s data repository,” the report concludes.
Four OIG Recommendations
The OIG recommended that CMS:
- Establish a comprehensive data-sharing agreement with VHA;
- Implement an interagency process integrating VHA enrollment, claims, and payment data into the CMS Integrated Data Repository to identify potential fraud, waste, and abuse;
- Establish an internal process—such as system edits—to address duplicate Medicare/VHA payments; and
- Issue guidance to providers on not billing Medicare for medical services authorized by VHA.
CMS concurred with all four recommendations.
The VHA has sole payment responsibility for the lab tests and other medical items and services that it authorizes for its members. So, you need to establish a process to check whether Medicare patients have VHA coverage and, if so, whether VHA has authorized tests before billing Medicare for those tests. If that’s indeed the case, you should bill only the VHA and not Medicare for the tests.
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