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OIG Work Plan Monthly Updates (January, February, and March 2018)

As previously explained in von Briesen's Legal Update OIG Work Plan Moves from Annual to Monthly Updates, the United States Department of Health and Human Services, Office of Inspector General (the "OIG") has decided to update its Work Plan monthly. Health organizations are advised to use these monthly updates to review and update policies and procedures based on the OIG's areas of interest and enforcement priorities.

This Legal Update summarizes some of the significant OIG Work Plan updates released for January, February, and March 2018.

Abuse and Neglect of Medicare Beneficiaries (Added January 2018)

Abuse and neglect of the elderly and vulnerable is a continuing problem at group homes, nursing homes, and skilled nursing facilities. Prior OIG reviews have revealed issues with compliance with state mandatory reporting laws. The OIG will review the diagnoses of Medicare beneficiaries being treated at medical facilities to determine whether the condition being treated was a result of abuse or neglect and, if so, where that abuse or neglect occurred. All providers of care to the elderly or other vulnerable populations should review their policies and procedures for preventing, identifying, investigating, and reporting potential abuse and neglect.

HHS Grantee Compliance with Cost Principles (Added March 2018)

Entities that receive multiple grants from the Department of Health and Human Services (HHS) are required to comply with certain accounting, tracing, and financial requirements. These grantees must maintain written procedures for determining the reasonableness, allocability, and allowability of costs in accordance with law and the terms of the grant. Additionally, grantees must maintain documentation for all such costs and financial management systems that accurately determine the financial performance for each grant. The OIG intends to audit a selection of grantees to determine compliance with these requirements. All grantees should review their policies, procedures, and systems to ensure compliance in advance of the OIG's upcoming audit.

Questionable Billing for Off-the-Shelf Orthotic Devices (Added January 2018)

Since 2014, claims for certain off-the-shelf orthotic devices have grown by 97 percent and allowed charges have grown by 16 percent. A Medicare Administrative Contractor (MAC) has identified improper payment rates as high as between 87 percent and 91 percent for these devices. As a result, the OIG will review factors associated with the documentation of medical necessity in patients' medical records. Specifically, the OIG will consider the extent to which Medicare beneficiaries are being supplied these orthotic devices without seeing a referring physician within 12 months prior to their orthotic claim. Providers should review patient's medical records to ensure compliance with medical necessity documentation.

OIG Toolkit to Identify Patient at Risk of Opioid Misuse (Added January 2018)

In 2017, the OIG found that a half-million Medicare Part D beneficiaries received high amounts of opioids in the previous year. In addition, the OIG found that nearly 90,000 of those beneficiaries were at serious risk of opioid misuse or overdose. The OIG plans to release a toolkit to assist public and private stakeholders in addressing the opioid epidemic. The toolkit is expected to be released in 2018.

Provide Status Update on States' Efforts on Medicaid Provider Enrollment (Added January 2018)

The OIG will determine the extent to which States have completed fingerprint-based criminal background checks and site visits as a condition of provider enrollment in Medicaid. Previous OIG work found that many States have yet to implement these measures. Furthermore, CMS has continued to extend the deadline for States to complete the fingerprint-based background checks. Wisconsin implemented fingerprint-based background checks in May of 2016 and made the requirements retroactive effective for provider Medicaid enrollments, re-enrollments, and revalidations submitted on and after August 1, 2015. The requirements apply to certain providers as determined by a risk classification system. Providers are encouraged to review these requirements and classifications, which can be found in the ForwardHealth Update: New Fingerprinting and Criminal Background Check Screening Requirements Due to the Affordable Care Act, No. 2016-17 (May 2016).

Additional Areas of Focus

Other areas of focus of the OIG in January, February, and March are as follows:

  • Assessment of access to buprenorphine-waivered providers for the treatment of opioid use disorder;
  • Data briefing of opioid use in Medicare Part D;
  • Analysis of the impact of price substitutions based on 2016 average sale prices;
  • Review of the use of statistical methods within the Medicare fee-for-service administrative appeal process;
  • Analyze the statistical information reported by Medicaid Fraud Control Units in 2017;
  • Review of the Administration for Community Living's compliance review process and requirements for independent living programs.
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Ryan Siehr, von Briesen Law Firm, Milwaukee, Corporate and Health Care Law Attorney

Ryan Siehr is a member of the Business Practice Group and the Health Law and Technology Law Sections. He focuses his practice on business transactions, licensing, start-up and business formation, retail leasing and technology law. Ryan has significant experience in the health care industry with a special focus on HIPAA and healthcare-related software licensing and agreements. He also has experience working with entrepreneurial ventures on both a wide variety of legal issues and interaction with business planning, strategy, operation and finance.

Ryan is a member of the State Bar of...

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Stacy Gerber Ward, von Briesen Roper Law Firm, Milwaukee, Corporate and Health Care Law Attorney

Stacy Gerber Ward is a Shareholder and Leader of von Briesen’s Government Enforcement and Corporate Investigations Section. Stacy focuses on helping clients respond to government investigations and conduct internal investigations using her more than 14 years of experience serving as an Assistant United States Attorney for the Eastern District of Wisconsin and most recently as the Deputy Chief of the Civil Division. Stacy investigated and prosecuted individuals and corporations for civil health care fraud and other enforcement matters, including government enforcement matters under the False Claims Act, the Stark Law, the Anti-Kickback Statute, and the Controlled Substances Act.

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Aaron M Smith, Von Briesen Roper Law Firm, Milwaukee, HealthCare Law Attorney

Aaron Smith is a member of the Health Law Section. He concentrates his practice on legal and business issues for health care providers, with a strong focus on compliance. Aaron advises providers on matters of accreditation, licensure, medical staff credentialing, physician contracting, corporate compliance and health care fraud and abuse, including enforcement of the False Claims Act, Stark Law, and Anti-Kickback Statute.

He has significant experience in the health care industry including most recently serving as a Health Law Fellow for a large...

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Katelyn A. Pellitteri, von Briesen Roper Law Firm, Milwaukee, Tax and Corporate Law Attorney

Katelyn Pellitteri is a member of the Business Practice Group. Her practice focuses on a variety of business and transactional matters, including corporate governance, business structuring, succession planning for closely-held and family-owned businesses, tax planning and contract review.

During law school, Katelyn served as an extern for the Atlanta Business Court where she researched complex business cases for four senior judges and assisted in writing judicial opinions. In addition she competed in the ABA National Appellate Advocacy...

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