The Anatomy of an Audit - Part 2

March 20, 2018

By  Lynda M. JohnsonTimothy C. Ezell and Tonya S. Gierke 

Published in Arkansas Medical News (March/April)

It is no secret that there are extensive challenges facing healthcare providers in today’s regulatory environment. In particular, the significant increase in government healthcare program audit activity over the last 10 to 15 years has created additional uncertainty and risk in the healthcare industry. The prudent provider is always aware that the government has a bevy of resources, including contracted audit review companies, to facilitate audits of providers, and associated overpayment refund demands.

In a relatively recent development, the Unified Program Integrity Contractor (UPIC) is one type of entity that providers will begin to see and hear more from, as the existing Zone Program Integrity Contractors (ZPICs) are replaced by the UPICs. In this regard, CMS recently awarded UPIC contracts in five geographically defined jurisdictions.  Health Integrity, LLC was awarded the UPIC contract for the South-Western jurisdiction. One of the stated purposes of the UPICs is to facilitate the streamlining of and hence “unify," efforts of government healthcare program contractors who are auditing providers, for the purpose of identifying billing practices that could be alleged as fraud waste or abuse. These efforts have historically been fragmented.

In the CMS issued document, “Comprehensive Medicaid Integrity Plan. Fiscal Years 2014-2018," (the Plan), the HHS Secretary established a comprehensive plan for ensuring the program integrity of the Medicaid program.  As a result, CMS developed the concept of the UPIC auditors.  The Plan lists six broad areas — mainly focusing on streamlining efforts among the government and the states to protect beneficiaries and the integrity of the Medicaid program.  The Plan notes that because of the overlap of beneficiaries and providers, there are opportunities to safeguard both Medicare and Medicaid from fraud, waste and abuse through data analytics, coordinated audits and collaboration among both state and federal law enforcement agencies in investigations and prosecutions.   

By and large, (at least in our experience) State Medicaid program audits of providers have been conducted at the State level, primarily relying on State employees and State departments to conduct the audits and make decisions regarding overpayment demands and settlement amounts, in the event that an overpayment is alleged. While State Medicaid programs may have received some assistance from Federal healthcare program contractors in connection with these audits (perhaps in the nature of data mining and similar background work), providers have typically corresponded directly with local, State employees and departments in connection with these audits.  It appears that CMS’s plan going forward is for UPICs to be heavily involved in State Medicaid program audits. It is currently unclear how much discretion will remain with the local State Medicaid programs to determine overpayment demand amounts and to agree to settlements, etc.  However, we do not consider UIPC involvement in State Medicaid audits to be good news for providers. 

Providers should expect UPICs to conduct their post-payment record reviews and audit activities in a manner similar to ZPICs. The Medicare Program Integrity Manual specifically states that all references to ZPICs in the manual shall also apply to the UPICs unless specifically noted.  Providers should read document requests very carefully and note what types of documents are being requested. This could provide some insight as to what the focus of the review is.

It is unclear when the UPICs will entirely phase-out the ZPICs.  In the event that you are the recipient of a post-payment audit from a UPIC (or a ZPIC), consider bringing your legal counsel in early during the process to protect your interests.

The information provided above is created by the attorneys in the Healthcare Practice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Healthcare Attorneys.

Lynda M. Johnson has practiced in the health law area since 1986, representing a wide variety of healthcare providers including hospitals, physicians, physician groups, nursing homes, and home health agencies. Recently, her practice has focused on the representation of hospitals and physicians in HIPAA compliance efforts and other areas of regulatory compliance. Her practice also includes issues involving Stark I and II and Anti-Kickback compliance, Medicare/Medicaid reimbursement, corporate compliance issues, physician and hospital organization issues, managed care, healthcare and hospital law, long-term care and home health.  

Timothy Ezell practices primarily in the area of healthcare law, representing hospitals, physician groups and other medical service providers in various corporate and compliance matters. His experience covers matters relating to HIPAA, Stark, fraud and abuse, anti-kickback, EMTALA, Medicare reimbursement, compliance, joint ventures, provider sales and acquisitions, medical staff bylaws and credentialing issues.

Tonya S. Gierke is a healthcare attorney who utilizes her background as a  compliance officer and her experience in medical record review to assist clients through complex legal issues. She is a Certified Inpatient Coder (CIC), Certified in Healthcare Compliance (CHC) and Certified in Healthcare Privacy Compliance (CHPC). Her combination of legal and clinical experience, along with her compliance certifications, make her a unique resource for hospitals and healthcare professionals. 

The Anatomy of an Audit - Part 1