TMA Helps Physicians in Trouble
Law Feature – May 2011
Tex Med. 2011;107(5):39-43
By Crystal Conde
Associate Editor
Kaufman pediatrician Charles Turner Lewis, MD, knows all too well what it means to be investigated by the state's Office of Inspector General (OIG), the agency that monitors Medicaid to prevent and reduce waste, abuse, and fraud. Beginning in 2005, he struggled to keep his office open after his billing practices caught OIG's attention.
In its investigation of Dr. Lewis, OIG reviewed only 30 out of tens of thousands of his patient's files and concluded he'd overbilled Medicaid $146,396.89 for 2004 and 2005. After OIG factored in administrative penalties, Dr. Lewis potentially owed the state $439,109.67. (See "OIG's Hammer," October 2007 Texas Medicine, pages 17-23.)
Confident he had not intentionally defrauded Medicaid, Dr. Lewis requested a formal hearing with the State Office of Administrative Hearings. During the four months leading up to the hearing, the state withheld 25 percent of his Medicaid payments. At the 2006 hearing, Robert Kottman, MD, a medical coding expert, testified that he examined the same 30 files and found Dr. Lewis' charges to be in line.
Judge Shannon Kilgore ruled in Dr. Lewis' favor and told the state it couldn’t withhold the payments. Despite Dr. Lewis' victory, OIG, a division of the Texas Health and Human Services Commission (HHSC), ordered him to file all Medicaid claims by paper, instead of electronically. His attorney, Hugh Barton, JD, says this type of action can't be appealed in court.
At the time, Dr. Lewis says the state denied more than $500,000 in traditional Medicaid claims. He was paid for claims processed through Parkland Community Health Plan Medicaid HMO, however.
Facing potential financial ruin and the threat of having to close his doors, Dr. Lewis ran his practice out of his own pockets.
He found support and a helping hand at TexMed 2007 in Dallas. There he relayed his story to a Dallas County Medical Society member, who urged him to contact the Texas Medical Association. He and Mr. Barton met with TMA attorneys and other staff. They recommended he meet with legislators and allow a TMA reimbursement specialist to review 10 Medicaid claims the state had denied. The TMA specialist also found the claims to be valid.
After OIG failed to act on the HHSC commissioner's 2007 directive to abide by Judge Kilgore's ruling, Dr. Lewis turned to Attorney General Greg Abbott for an independent investigation. In 2008, Attorney General Abbott ordered OIG to obey the ruling. The case was settled that year, Dr. Lewis' unpaid claims were processed, and he didn't have to pay the state anything.
Still, the incident took its toll. Dr. Lewis estimates he spent $65,000 in legal fees, drained his entire retirement and personal savings accounts, took out a second mortgage on his home, and sold many of his possessions to keep his office open.
TMA has helped many physicians like Dr. Lewis realize a happy ending to their legal nightmares. When the association believes a physician member has been unfairly scrutinized or mistreated by public and private organizations, it can devote resources, assistance, and expertise to advocate on the physician's behalf.
If you need assistance, call the TMA Knowledge Center at (800) 880-7955 or (512) 370-1550.
TMA also has resources available to physicians who suspect their billing and coding practices may need some revision or who simply want to make sure they're on track. TMA's Practice Consulting and Payment Advocacy departments help physicians avoid delayed and incorrect reimbursement. (See "TMA Takes the Sting Out of Audits.")
"Partial Vindication"
Dr. Lewis says TMA's help was "invaluable" during his ordeal with OIG. He adds the association is now helping him retrieve the charts OIG confiscated from his office during its 2006 investigation. Dr. Lewis says investigators didn't allow him to make copies of the patient files.
"You feel like you've been doing your best in what you were trained to do. Someone comes in and says you're guilty of something you never could imagine. The experience really damages your psyche, energy, and motivation," Dr. Lewis said.
He advises other physicians who find themselves in a similar situation not to roll over and pay up.
"If you believe you've done right, you have to stand up for yourself. You have to stick with it. Writing a check is an admission of guilt and stays on your record," he said.
Despite his ordeal, Dr. Lewis says physicians should still see Medicaid patients. The Medicaid program needs doctors. The number of physicians accepting new Medicaid patients declined from 67 percent in 2000 to only 42 percent in 2010, according to preliminary results of the 2010 TMA Physician Survey.
Dr. Lewis says administrative hassles for doctors who care for Medicaid patients need to be reduced. In his rural area, he's the only physician who accepts new Medicaid patients. He continues to see them because, he says, they deserve the same level of care afforded to those with private insurance plans.
To help make a difference, Dr. Lewis has become more politically active. In a twist he refers to as "partial vindication," Dr. Lewis is on HHSC's Medicaid and Children's Health Insurance Program (CHIP) Regional Advisory Committee. The committee meets four times a year to make recommendations on Medicaid and CHIP issues to HHSC.
At press time, TMA had collaborated with OIG to develop new rules concerning recoupment of overpayments pursuant to audit. To access the proposed HHSC rules, see Chapter 371, Section 371.1709 [PDF] in the Texas Register.
The proposed rules establish procedural standards for audits, payment guidelines, requirements for physicians to request an appeal of the audit or a review of the findings, and other provisions. The rules apply to overpayments identified through audits, according to Karen Nelson, OIG chief counsel. She says working with TMA throughout the rulemaking process was beneficial.
"TMA gave a well-thought-out response to the draft rule and came back with points that needed clarification or might conflict with other regulations. As a result, we made quite a few modifications, which I believe made it a better rule," Ms. Nelson said.
Dr. Aldridge's Cautious Optimism
The San Antonio pediatric radiology practice of Milissa Aldridge, MD, halted suddenly in 2009 when she learned she was an OIG target. (See "Dr. Aldridge's Nightmare," July 2009 Texas Medicine, pages 29-32.)
OIG told her an administrative sanction she'd received 15 years earlier when she gave up her career as a pharmacist to become a physician had made her ineligible to participate in Medicaid all those years. The agency demanded that she repay more than $800,000 in Medicaid claims. The sanction stemmed from inadvertently reporting that she met pharmacy continuing education requirements in renewing her pharmacy license while she was in medical school. Dr. Aldridge ultimately settled the case with the state pharmacy board and allowed her pharmacy license to become inactive. She says she was never notified she'd been excluded from the Medicaid program.
The sanction and OIG investigation cost Dr. Aldridge her job with Radiology Associates of San Antonio PA. She says she also lost faith in the Medicaid system. She's one of only 35 pediatric radiologists in Texas, according to the latest data from the Texas Medical Board.
In an attempt to clear her name, Dr. Aldridge sued the state in 2009.
Kicked out of Medicaid and unable to find work in the United States, Dr. Aldridge spent 2010 practicing as a radiologist in New Zealand under a government contract. She's now trying to find a job in the United States, but so far it hasn't been easy.
"I'm a problem case now. I have a black mark on my record that I'll have to explain forever," she said.
Dr. Aldridge received some encouraging news in March. Mr. Barton, one of her attorneys, says a settlement of her lawsuit against HHSC requires the agency to acknowledge that she has been "validly enrolled as a performing provider for a group" in the Texas Medicaid program since Sept. 22, 2000. The settlement also requires Dr. Aldridge to apply for a new Texas provider identifier number.
"Until I get my new number, I can't completely relax. Permanent employment in Texas isn't possible without an unrestricted number. Until then, I remain optimistic," she said.
Dr. Aldridge says TMA gave her much-needed support when her spirit was crushed. The association helped her find an attorney. TMA and the American Medical Association also provided financial assistance to cover some of her attorney's fees.
"It was comforting to know I wasn't alone in this process. Someone actually had a clue what was going on and was willing to help me. I had someone on my side who understood what I was going through," Dr. Aldridge said.
Fired for Reporting Abuse
Austin psychiatrist Maureen Adair, MD, says a corporation punished her for trying to protect her patients. In 2008, she worked part-time as a unit medical director for children aged 10 and younger at a private, for-profit residential children's treatment facility in Austin. She became alarmed when she learned one child had allegedly sexually abused a group of younger children.
Dr. Adair says the facility's leadership didn't notify her of the incident for four days. Its chief executive officer (CEO) determined the incident wasn't serious enough to report to Child Protective Services (CPS), Dr. Adair says.
"I felt like it was a licensure requirement, an ethical requirement, for me to make that report to CPS, so I did. A few weeks later, I got an overnight letter from the corporation saying that my contract had been terminated for false allegations," she said.
The treatment facility's medical bylaws required employees to report any alleged abuse to the internal risk management officer or the CEO, not to CPS. Dr. Adair says the officer or CEO would determine whether the offense warranted a report to CPS.
Dr. Adair turned to TMA for help in 2009. TMA's Patient-Physician Advocacy Committee reviewed her case and advised her to work with the association to clarify state reporting requirements.
Patrick Crimmins, Texas Department of Family and Protective Services (DFPS) media relations manager, says its collaboration with TMA made the department realize it needed to make it clear that residential child care facility staff can't rely on the facility administrator to report alleged abuse or neglect to DFPS.
"TMA requested changes to the minimum standards rules related to how residential child care staff report alleged abuse and neglect to DFPS," Mr. Crimmins said. The department revised the minimum standards rules last April. They were adopted in July and took effect in September.
The new rules say facilities must ensure that employees "report serious incidents and suspected abuse, neglect, or exploitation. An employee who suspects abuse, neglect, or exploitation must report their suspicion directly to us and may not delegate this responsibility …"
To view the rules, click here to access chapters 748 and 749.
Dr. Adair is pleased with the rule changes and grateful to TMA. She has a private psychiatry practice in Austin and says she's more careful about where she chooses to do consulting work now.
"I think when corporations are involved in medicine, it's always going to be profits first. They don't have the ethical obligations that physicians have to take care of their patients," she said.
Watch a video of Dr. Adair telling her story on the TMA website.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail.
SIDEBAR
TMA Takes the Sting Out of Audits
TMA encourages physicians and their staff to be proactive in preventing a coding and documentation audit. The association's services can help medical practices avoid nightmares.
TMA Practice Consulting offers evaluation and management (E&M) coding and documentation reviews that include a coding and documentation analysis of 10 records per physician.
TMA Practice Consulting also can conduct a coding and documentation quarterly review to determine whether a medical practice is following payers' guidelines for appropriate billing year-round.
TMA Practice Consulting reviews a practice's documentation for accurate CPT coding, appropriate application of CPT coding guidelines, E&M coding guidelines, and correct use of modifiers; accurate ICD-9-CM coding, appropriate application of ICD-9-CM coding guidelines, and documentation of medical necessity; and encounter forms, claims, and corresponding explanations of benefits to ensure accurate billing and reimbursement levels.
And TMA offers an E&M coding and documentation training program for practices that need help understanding documentation guidelines or identifying inappropriate or inaccurate coding and weaknesses in medical record documentation. The two-hour session covers a review of 1995 and 1997 E&M documentation guidelines, time-based coding, modifiers, audit triggers, prolonged services, preventive medicine, and E&M utilization patterns, among other topics. Services are available for a fee based on a practice's needs.
To get an idea of your coding pattern, contact TMA Practice Consulting by telephone at (800) 523-8776 or by e-mail.
Additional services include the Hassle Factor Log, coding and billing hotline, mini-consultations, and payment advocacy – all free to TMA members. TMA also can intervene with an insurer to help resolve a problem. Call (800) 880-1300, ext. 1632, to reach the Hassle Factor Log.
TMA mini-consultations send a staff member to county medical societies to conduct free 30-minute sessions with individual practices on coding, billing, reimbursement, denial of services, or claims filing. To schedule a mini-consultation in your community, contact your local county medical society. You may also contact TMA by telephone at (800) 880-1300, ext. 1416, (512) 370-1416, or by e-mail.
TMA Payment Advocacy staff members meet regularly with major payers to resolve payment problems and medical policy issues.
If you have questions or need help logging in, contact the TMA Knowledge Center by telephone at (800) 880-7955 or by e-mail.
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