[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Notices]
[Pages 1813-1816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-631]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
Publication of OIG Special Fraud Alert on Physician Liability for
Certifications in the Provision of Medical Equipment and Supplies and
Home Health Services
AGENCY: Office of Inspector General (OIG), HHS.
ACTION: Notice
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SUMMARY: This Federal Register notice sets forth a recently issued OIG
Special Fraud Alert concerning physician liability for certifications
in the provision of medical equipment and supplies and home health
services. For the most part, OIG Special Fraud Alerts address national
trends in health care fraud, including potential violations of the
Medicare anti-kickback statute. This Special Fraud Alert, issued to the
health care provider community and now being reprinted in this issue of
the Federal Register, specifically highlights physicians'
responsibilities in making certifications for home health services and
durable medical equipment, and the legal significance of the
certifications.
FOR FURTHER INFORMATION CONTACT: Joel J. Schaer, Office of Counsel to
the Inspector General, (202) 619-0089.
SUPPLEMENTARY INFORMATION:
I. Background
The Office of Inspector General (OIG) issues Special Fraud Alerts
based on information it obtains concerning particular fraudulent or
abusive practices within the health care industry.
Special Fraud Alerts are intended for widespread dissemination to
the health care provider community, as well as those charged with
administering the Medicare and Medicaid programs. To date, the OIG has
published in the Federal Register the texts of 9 previously-issued
Special Fraud Alerts.1 It is the OIG's intention to publish
future Special Fraud Alerts in this same manner as a regular part of
our dissemination of such information.2
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\1\ See December 19, 1994 (59 FR 65372); August 10, 1995 (60 FR
40847); June 17, 1996 (61 FR 30623); and April 24, 1998 (63 FR
20415).
\2\ All OIG Special Fraud Alerts are also available on the
internet at the OIG web site at http://www.dhhs.gov/progorg/oig/
frdalrt/index.htm.
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In an effort to promote voluntary compliance in the health care
industry and assist providers in their compliance efforts, the OIG has
developed a Special Fraud Alert, set forth below, that addresses
potential problem areas with
[[Page 1814]]
regard to physician certification in the provision of medical equipment
and supplies and home health services. Among other things, this newly-
issued Special Fraud Alert addresses: (1) the importance of physician
certification for Medicare; (2) how improper physician certifications
foster fraud; and (3) potential consequences for knowingly signing a
false or misleading certification, or signing with reckless disregard
for the truth. A reprint of this Special Fraud Alert follows.
II. Special Fraud Alert: Physician Liability for Certifications in
the Provision of Medical Equipment and Supplies and Home Health
Services (January 1999)
The Office of Inspector General (OIG) was established at the
Department of Health and Human Services by Congress in 1976 to identify
and eliminate fraud, waste, and abuse in the Department's programs and
to promote efficiency and economy in departmental operations. The OIG
carries out this mission through a nationwide program of audits,
inspections, and investigations.
To reduce fraud and abuse in the Federal health care programs,
including Medicare and Medicaid, the OIG actively investigates
fraudulent schemes that obtain money from these programs and, when
appropriate, issues Special Fraud Alerts that identify segments of the
health care industry that are particularly vulnerable to abuse. Copies
of all OIG Special Fraud Alerts are available on the internet at http:/
/www.dhhs.gov/progorg/oig/frdalrt/index.htm.
We are issuing this Fraud Alert because physicians may not
appreciate the legal and programmatic significance of certifications
they make in connection with the ordering of certain items and services
for their Medicare patients. While the OIG believes that the actual
incidence of physicians' intentionally submitting false or misleading
certifications of medical necessity for durable medical equipment or
home health care is relatively infrequent, physician laxity in
reviewing and completing these certifications contributes to fraudulent
and abusive practices by unscrupulous suppliers and home health
providers. We urge physicians and their staff to report any suspicious
activity in connection with the solicitation or completion of
certifications to the OIG.
Physicians should also be aware that they are subject to
substantial criminal, civil, and administrative penalties if they sign
a certification knowing that the information relating to medical
necessity is false, or with reckless disregard as to the truth of the
information being submitted. While a physician's signature on a false
or misleading certification made through mistake, simple negligence, or
inadvertence will not result in personal liability, the physician may
unwittingly be facilitating the perpetration of fraud on Medicare by
suppliers or providers. Accordingly, we urge all physicians to review
and familiarize themselves with the information in this Fraud Alert. If
a physician has any questions as to the application of these
requirements to specific facts, the physician should contact the
appropriate Medicare Fiscal Intermediary or Carrier.
The Importance of Physician Certification for Medicare
The Medicare program only pays for health care services that are
medically necessary. In determining what services are medically
necessary, Medicare primarily relies on the professional judgment of
the beneficiary's treating physician, since he or she knows the
patient's history and makes critical decisions, such as admitting the
patient to the hospital; ordering tests, drugs, and treatments; and
determining the length of treatment. In other words, the physician has
a key role in determining both the medical need for, and utilization
of, many health care services, including those furnished and billed by
other providers and suppliers.
Congress has conditioned payment for many Medicare items and
services on a certification signed by a physician attesting that the
item or service is medically necessary. For example, physicians are
routinely required to certify to the medical necessity for any service
for which they submit bills to the Medicare program.
Physicians also are involved in attesting to medical necessity when
ordering services or supplies that must be billed and provided by an
independent supplier or provider. Medicare requires physicians to
certify to the medical necessity for many of these items and services
through prescriptions, orders, or, in certain specific circumstances,
Certificates of Medical Necessity (CMNs). These documentation
requirements substantiate that the physician has reviewed the patient's
condition and has determined that services or supplies are medically
necessary.
Two areas where the documentation of medical necessity by physician
certification plays a key role are (i) home health services and (ii)
durable medical equipment (DME). Through various OIG audits, we have
discovered that physicians sometimes fail to discharge their
responsibility to assess their patients' conditions and need for home
health care. Similarly, the OIG has found numerous examples of
physicians who have ordered DME or signed CMNs for DME without
reviewing the medical necessity for the item or even knowing the
patient.
Physician Certification for Home Health Services
Medicare will pay a Medicare-certified home health agency for home
health care provided under a physician's plan of care to a patient
confined to the home. Covered services may include skilled nursing
services, home health aide services, physical and occupational therapy
and speech language pathology, medical social services, medical
supplies (other than drugs and biologicals), and DME.
As a condition for payment, Medicare requires a patient's treating
physician to certify initially and recertify at least every 62 days (2
months) that:
The patient is confined to the home;
The individual needs or needed (i) intermittent skilled
nursing care; (ii) speech or physical therapy or speech-language
pathology services; or (iii) occupational therapy or a continued need
for occupational therapy (payment for occupational therapy will be made
only upon an initial certification that includes care under (i) or (ii)
or a recertification where the initial certification included care
under (i) or (ii));
A plan of care has been established and periodically
reviewed by the physician; and
The services are (were) furnished while the patient is
(was) under the care of a physician.
The physician must order the home health services, either orally or
in writing, prior to the services being furnished. The physician
certification must be obtained at the time the plan of treatment is
established or as soon thereafter as possible. The physician
certification must be signed and dated prior to the submission of the
claim to Medicare. If a physician has any questions as to the
application of these requirements to specific facts, the physician
should contact the appropriate Medicare Fiscal Intermediary or Carrier.
Physician Orders and Certificates of Medical Necessity for Durable
Medical Equipment, Prosthetics, Orthotics, and Supplies for Home Use
DME is equipment that can withstand repeated use, is primarily used
for a medical purpose, and is not generally used in the absence of
illness or injury.
[[Page 1815]]
Examples include hospital beds, wheelchairs, and oxygen delivery
systems. Medicare will cover medical supplies that are necessary for
the effective use of DME, as well as surgical dressings, catheters, and
ostomy bags. However, Medicare will only cover DME and supplies that
have been ordered or prescribed by a physician. The order or
prescription must be personally signed and dated by the patient's
treating physician.
DME suppliers that submit bills to Medicare are required to
maintain the physician's original written order or prescription in
their files. The order or prescription must include:
The beneficiary's name and full address;
The physician's signature;
The date the physician signed the prescription or order;
A description of the items needed;
The start date of the order (if appropriate); and
\ the diagnosis (if required by Medicare program policies) and a
realistic estimate of the total length of time the equipment will be
needed (in months or years).
For certain items or supplies, including supplies provided on a
periodic basis and drugs, additional information may be required. For
supplies provided on a periodic basis, appropriate information on the
quantity used, the frequency of change, and the duration of need should
be included. If drugs are included in the order, the dosage, frequency
of administration, and, if applicable, the duration of infusion and
concentration should be included.
Medicare further requires claims for payment for certain kinds of
DME to be accompanied by a CMN signed by a treating physician (unless
the DME is prescribed as part of a plan of care for home health
services). When a CMN is required, the provider or supplier must keep
the CMN containing the treating physician's original signature and date
on file.
Generally, a CMN has four sections:
Section A contains general information on the patient,
supplier, and physician. Section A may be completed by the supplier.
Section B contains the medical necessity justification for
DME. This cannot be filled out by the supplier. Section B must be
completed by the physician, a non-physician clinician involved in the
care of the patient, or a physician employee. If the physician did not
personally complete section B, the name of the person who did complete
section B and his or her title and employer must be specified.
Section C contains a description of the equipment and its
cost. Section C is completed by the supplier.
Section D is the treating physician's attestation and
signature, which certifies that the physician has reviewed sections A,
B, and C of the CMN and that the information in section B is true,
accurate, and complete. Section D must be signed by the treating
physician. Signature stamps and date stamps are not acceptable.
By signing the CMN, the physician represents that:
He or she is the patient's treating physician and the
information regarding the physician's address and unique physician
identification number (UPIN) is correct;
\ The entire CMN, including the sections filled out by the
supplier, was completed prior to the physician's signature; and
\ The information in section B relating to medical necessity is
true, accurate, and complete to the best of the physician's knowledge.
Improper Physician Certifications Foster Fraud
Unscrupulous suppliers and providers may steer physicians into
signing or authorizing improper certifications of medical necessity. In
some instances, the certification forms or statements are completed by
DME suppliers or home health agencies and presented to the physician,
who then signs the forms without verifying the actual need for the
items or services. In many cases, the physician may obtain no personal
benefit when signing these unverified orders and is only accommodating
the supplier or provider. While a physician's signature on a false or
misleading certification made through mistake, simple negligence, or
inadvertence will not result in personal liability, the physician may
unwittingly be facilitating the perpetration of fraud on Medicare by
suppliers or providers. When the physician knows the information is
false or acts with reckless disregard as to the truth of the statement,
such physician risks criminal, civil, and administrative penalties.
Sometimes, a physician may receive compensation in exchange for his
or her signature. Compensation can take the form of cash payments, free
goods, or any other thing of value. Such cases may trigger additional
criminal and civil penalties under the anti-kickback statute.
The following are examples of inappropriate certifications
uncovered by the OIG in the course of its investigations of fraud in
the provision of home health services and medical equipment and
supplies:
\ A physician knowingly signs a number of forms provided by a home
health agency that falsely represent that skilled nursing services are
medically necessary in order to qualify the patient for home health
services.
\ A physician certifies that a patient is confined to the home and
qualifies for home health services, even though the patient tells the
physician that her only restrictions are due to arthritis in her hands,
and she has no restrictions on her routine activities, such as grocery
shopping.
\ At the prompting of a DME supplier, a physician signs a stack of
blank CMNs for transcutaneous electrical nerve stimulators (TENS)
units. The CMNs are later completed with false information in support
of fraudulent claims for the equipment. The false information purports
to show that the physician ordered and certified to the medical
necessity for the TENS units for which the supplier has submitted
claims.
\ A physician signs CMNs for respiratory medical equipment falsely
representing that the equipment was medically necessary.
\ A physician signs CMNs for wheelchairs and hospital beds without
seeing the patients, then falsifies his medical charts to indicate that
he treated them.
\ A physician accepts anywhere from $50 to $400 from a DME supplier
for each prescription he signs for oxygen concentrators and nebulizers.
Potential Consequences for Unlawful Acts
A physician is not personally liable for erroneous claims due to
mistakes, inadvertence, or simple negligence. However, knowingly
signing a false or misleading certification or signing with reckless
disregard for the truth can lead to serious criminal, civil, and
administrative penalties including:
\ Criminal prosecution;
\ Fines as high as $10,000 per false claim plus treble damages; or
\ administrative sanctions including: exclusion from participation
in Federal health care programs, withholding or recovery of payments,
and loss of license or disciplinary actions by state regulatory
agencies.
Physicians may violate these laws when, for example:
\ They sign a certification as a ``courtesy'' to a patient, service
provider, or DME supplier when they have not first made a determination
of medical necessity;
[[Page 1816]]
\ They knowingly or recklessly sign a false or misleading
certification that causes a false claim to be submitted to a Federal
health care program; or
\ They receive any financial benefit for signing the certification
(including free or reduced rent, patient referrals, supplies,
equipment, or free labor).
Even if they do not receive any financial or other benefit from
providers or suppliers, physicians may be liable for making false or
misleading certifications.
What To Do If You Have Information About Fraud and Abuse Against
Medicare or Medicaid Programs
If you have information about physicians, home health agencies, or
medical equipment and supply companies engaging in any of the
activities described above, contact any of the regional offices of the
Office of Investigations of the Office of Inspector General, U.S.
Department of Health and Human Services, at the following locations:
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Field offices States served Telephone
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Boston...................... MA, VT, NH, ME, RI, 617-565-2664
CT
New York.................... NY, NJ, PR, VI 212-264-1691
Philadelphia................ PA, MD, DE, WV, VA, 215-861-4586
DC
Atlanta..................... GA, KY, NC, SC, FL, 404-562-7603
TN, AL, MS
Chicago..................... IL, MN, WI, MI, IN, 312-353-2740
OH, IA, MO
Dallas...................... TX, NM, OK, AR, LA, 214-767-8406
CO, UT, WY, MT, ND,
SD, NE, KS
Los Angeles................. AZ, NV, So. CA 714-246-8302
San Francisco............... No. CA, AK, HI OR, 415-437-7961
ID, WA
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To Report Suspected Fraud, Call or Write: 1-800-HHS-TIPS (1-800-
447-8477), Department of Health and Human Services, Office of Inspector
General, P.O. Box 23489, L'Enfant Plaza Station, Washington, D.C.
20026-3489.
Dated: January 6, 1999.
June Gibbs Brown,
Inspector General.
[FR Doc. 99-631 Filed 1-11-99; 8:45 am]
BILLING CODE 4150-04-P
