OIG 2013 Work Plan Targets New Areas of Investigation - Physicians

Author: K. Jill Osmars

The Office of  Inspector General (OIG) is the arm of the federal government that is charged with identifying, preventing and investigating fraud and abuse in Medicare and other federal programs.  Each year, the OIG publishes its Work Plan, which identifies the audits and investigations it intends to pursue during the year.

The OIG is authorized to impose monetary penalties against physicians and physician groups and may exclude individuals and medical groups from Medicare.  For these reasons, it is important for physicians to be aware of new trends in OIG enforcement activities as part of their compliance plans.

The 2013 Work Plan was published recently and identifies the following areas of interest:

E&M Services – Cloning of Electronic Medical Records: Medicare is aware of the benefits of EMR’s, but also the potential for fraud and abuse.  In the 2013 Work Plan, the OIG notes “an increased frequency of medical records with identical documentation across services” and will focus its audits on this area.  In addition, audits will not just look at one particular date of service for a beneficiary, but will look at EMR’s on multiple dates and services for the same providers and beneficiaries to determine whether the providers have “cloned” the medical record or have the appropriate documentation for the services actually provided to the beneficiary.  It is essential that medical practices adopt policies and procedures to ensure that physicians and staff document correctly in the medical record.

Incident To Services:  This is a continued area of investigation for the OIG.  The 2013 Work Plan notes that in prior years when “Medicare allowed physicians’ billings for more than 24 hours of services in a day, half of the services were not performed by a physician.”  In addition, many of the “incident to” services were performed by unqualified individuals.  Physicians must be aware of the qualifications required of the personnel providing E&M services under the Physician’s provider number, as well as the limits on what types of services may be performed “incident to.”

Medical Necessity of High Cost Diagnostic Radiology Tests: The OIG will look at the medical necessity of certain high-cost diagnostic radiology tests, particularly if  tests are ordered by a primary care physician as well as a specialist for the same treatment.  It appears that OIG will be focusing on Specialists who perform diagnostic radiology “in-house” and whether there is duplication of services for a beneficiary.

Sleep Disorder Testing and Clinics: The OIG has a particular focus on the medical necessity of sleep study services, which have increased exponentially in recent years.   Sleep studies must be “reasonable and necessary” and the OIG will evaluate the high utilization of these services.  Physicians must be aware of both Medicare and Palmetto requirements for medical necessity for these services.

Noncompliance with Assignment Rules: Medicare’s assignment rules allow a physician or physician group to bill for the services of another physician and accept “assignment” of payment.  Physicians must be aware, however, that there must be a written agreement that allows the assignment of payment to another physician.  Physicians and groups must ensure that their written employment and independent contractor agreements contain the correct language required by Medicare for the assignment of payments to the group.

High Cumulative Payments to One Provider: The OIG defines a high cumulative payment as “an unusually high payment made to an individual physician . . . or on behalf of an individual beneficiary over a specified period.”  Unusually high Medicare payments may indicate incorrect billing or fraud and abuse.  Physicians must ensure that services are documented correctly, particularly if physicians have specific patients that require extensive physician services.

Physicians and physician groups are well advised to adopt a compliance plan to ensure that the various federal and state fraud and abuse laws are not being violated.  Often, it is merely oversight or lack of awareness that leads to compliance issues.  For these reasons, if you have any compliance questions, please contact DSMW for review and advice.


Healthcare Law Update is a publication of DSMW's Healthcare Law Group.  The information contained in this publication is provided for educational purposes only and does not constitute legal advice or legal opinion.  Such advice and opinions are provided by DSMW only after entering into a signed engagement agreement with a client regarding services to be provided in connection with a specific factual situation.  Publication of the information in this Healthcare Law Update is not intended to create, and your receipt of the information does not result in the creation of, an attorney-client relationship between DSMW, the author(s) and you.  Please be advised that the law changes rapidly, and DSMW does not guarantee the information in this Healthcare Law Update will be updated or remain accurate after the date of its publication.

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