SMP Complex Interactions Training Manual

Transcription

1 SMP Complex Interactions Training Manual SMP Resource Center

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3 Table of Contents Acknowledgments... i About the SMP Resource Center... i Training Overview... ii Chapter 1: Complex Interactions and the SMP Role SMP Unique Role... 3 Identifying SMP Complex Interactions... 4 Referrals of Complex Interactions... 4 Understanding What is Not a Complex Interaction... 5 Consumer Scams... 6 Recommended Resources... 8 Chapter 2: Errors Overview Gathering Enough Information Working Directly with Providers Working Directly with Medicare Following Up With the Complainant Tracking and Reporting SMP Complex Interactions Recommended Resources Chapter 3: Referrals Overview SMP Referrals Processes and Procedures Referrals to the OIG Hotline Referrals Involving Medicaid Referrals to the CMS RO DOI Liaison Referrals to the State Department of Insurance... 45

4 Continued Referrals to the MEDIC Referrals of Quality of Care Complaints Recommended Resources Chapter 4: Case Studies Applying What You Have Learned Case 1: Diabetes Supplies Billing Case 2: Hospital Billing for MRIs Case 3: Hospice Care Case 4: Power Wheelchair Case 5: Medicare Advantage Marketing Scenario A Scenario B Case 6: Part D Marketing Case 7: Prescription Drugs Case 8: Both Medicare and Medicaid Case 9: Compromised Medicare Numbers Case 10: Quality of Care Case 11: Medicare Coverage Complaint Closing Appendices Appendix A: SMP Referrals Flow Chart Appendix B: SMP Unique ID User Guide Appendix C: Can They Do That? Medicare Part C and Part D Plan Marketing Rules Index

5 Acknowledgments This manual is a product of the Senior Medicare Patrol (SMP) National Resource Center. It was supported in part by a grant (No. 90NP0003) from the Administration for Community Living (ACL), U.S. Department of Health and Human Services (DHHS). Grantees carrying out projects under government sponsorship are encouraged to express freely their findings and conclusions. Therefore, points of view or opinions do not necessarily represent official ACL or DHHS policy. The principal author for this manual was Ginny Paulson, former SMP National Resource Center director. Mike Klug, Medicare consultant, provided additional subject-matter expertise. Editing was conducted by Heather Flory, training manager, and Maureen Patterson, media manager. Sara Lauer, program coordinator, conducted additional editing, formatting, and design. This March 2016 edition is updated from the original, which was published electronically in May About the SMP Resource Center The Senior Medicare Patrol National Resource Center, more commonly known as the SMP Resource Center, is funded by the U.S. Administration for Community Living (ACL), Department of Health & Human Services (DHHS), and has existed since The SMP Resource Center serves as a central source of information, expertise, and technical assistance for the Senior Medicare Patrol (SMP) projects. National SMP Website: This website provides education to the public on health care fraud and how to contact their state SMP. It also contains a Resources for SMPs portal with resources, training, and technical assistance for the SMP projects nationwide. Nationwide Toll-free Number: Available Monday through Friday, 9:00 a.m. 5:30 p.m. Eastern Time info@smpresource.org Mailing Address: SMP Resource Center, Northeast Iowa Area Agency on Aging, 2101 Kimball Ave., Ste. 320, P.O. Box 388, Waterloo, Iowa Page i

6 Training Overview The goal of this SMP Complex Interactions Training is to provide you with the necessary skills and resources to manage SMP complex interactions and, when necessary, conduct a referral to the appropriate entity. SMP complex interactions involve complaints of suspected Medicare fraud, errors, or abuse from Medicare beneficiaries, their caregivers, or professionals caring for beneficiaries. These complaints may also involve consumer scams aimed at stealing the identities or preying upon the personal finances and property of Medicare beneficiaries. Objectives Upon completion of this SMP Complex Interactions Training, you will be able to: 1) Describe which types of complex questions are handled by SMPs and which are not. 2) Perform case research to determine if a complex interaction is an error or suspected fraud or abuse. 3) Identify and follow up on situations in which beneficiaries are targets of inappropriate marketing or solicitation. 4) Manage SMP complex interactions following the processes outlined in this manual and, when necessary, conduct a referral to the appropriate entity for further action. About This Manual This training manual provides detailed information to help you meet each of the objectives listed above. Chapter 1: Complex Interactions and the SMP Role defines complex interactions and referrals and helps you understand what is not a complex interaction. Key Concept Throughout the manual, look for boxes (like this one), which highlight key concepts and tips. NOTE: Note indicators like this one highlight or qualify certain statements, instructions, or information, when needed. Chapter 2: Errors provides information and resources to help you follow up on cases of suspected error. Chapter 3: Referrals guides you through the process of managing and referring cases of suspected fraud and abuse. Chapter 4: Case Studies provides practical examples to help you apply what you have learned. The Appendices offer additional resources related to managing complex interactions and making referrals. Page ii

7 About This Training This training is intended for SMP team members who will handle complex interactions. It is designed to help you effectively manage the types of complex questions that are asked of SMPs across the country and in your local area and provide a professional, accurate, consistent response. Additional Training Prior to taking this SMP Complex Interactions Training, it is recommended that you complete both SMP Foundations Training and SMP Counselor Training. SMP Foundations Training provides a foundation of knowledge in three main content areas: the SMP program, Medicare basics, and Medicare fraud, errors, and abuse. SMP Counselor Training teaches you how to answer basic SMP questions and provide individual SMP education consistently across the country. In order to manage complex interactions and make referrals of suspected Medicare fraud, errors, or abuse, you will most likely also need to receive training in using the SMP Information and Reporting System (SIRS). Comprehensive data entry instruction is outside the scope of this manual, though readers can expect some references to SIRS in addition to periodic data reporting reminders. It is possible to assist in managing complex interactions without knowledge of the SMP Information and Reporting System. However, it is not possible to conduct referrals of suspected Medicare fraud and abuse to the OIG hotline via ACL or to print the necessary paperwork for referrals to CMS without using SIRS. SMP representatives who are involved with complex interactions but not referrals will need to work closely with an SMP team member who uses SIRS and knows how to make a referral of suspected Medicare fraud or abuse. This approach will require highly coordinated teamwork. Additional training may also be provided by your SMP on other topics. For example, if you will also present group education sessions, SMP Group Education Training or similar training provided by your SMP may be helpful. Please talk with your SMP for more information about any additional training that may be needed. Page iii

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9 SMP Complex Interactions Training Manual CHAPTER 1: Complex Interactions and the SMP Role SMP Unique Role... 3 Identifying SMP Complex Interactions... 4 Referrals of Complex Interactions... 4 Understanding What is Not a Complex Interaction... 5 Consumer Scams... 6 Local Law Enforcement... 6 State Attorneys General... 6 Federal Trade Commission... 6 Better Business Bureau... 7 Recommended Resources... 8 Publications... 8 Online Resources... 8 Page 1

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11 SMP Unique Role As you learned in SMP Foundations, there are many entities involved in addressing Medicare fraud, errors, and abuse and also many organizations available to help beneficiaries. The SMP program educates the public in order to prevent and detect suspected Medicare fraud, errors, and abuse. If someone contacts the SMP with a complaint, the role of the SMP is to act as a messenger between the beneficiary (or other complainant, such as a caregiver or health care professional) and the appropriate entity that can address the suspected fraud, errors, or abuse. Medicare fraud, errors, and abuse negatively affect not only the Medicare program as a whole but also individual Medicare beneficiaries. SMPs help beneficiaries report complaints of suspected fraud, errors, and abuse and act as complaint managers, supporting and assisting beneficiaries during the resolution process. As messengers, SMPs report suspected fraud, errors, and abuse to government organizations that can intervene and stop them at the source. SMPs also relay relevant information from government organizations back to the complainant when information is available. As complaint managers, SMPs help beneficiaries understand and resolve the personal consequences, such as harm to their personal finances and medical records, that arise when they are the victim of an error or are inadvertently caught up in fraud or abuse. SMPs also receive complaints from beneficiaries about attempted fraud, including health care-related consumer scams. These beneficiaries (or their caregivers) identified a suspected scam but did not fall prey to it, thus preventing potential Medicare fraud. As public educators, the SMP role is to alert the appropriate authorities at the state, regional, and local level so they can take further preventive action. Messengers Complaint Mangers Public Educators Chapter 1 Page 3

12 Identifying SMP Complex Interactions Complaints of potential Medicare fraud, errors, and abuse, consumer scams that seek Medicare and Social Security numbers, and other potential health care fraud aimed at Medicare beneficiaries are deemed complex interactions in the SMP program. To further understand how to identify complex interactions, consider these points: Complex interactions are inquiries that generally require the SMP team member (staff, volunteer, or partner) to obtain beneficiary personal identifying information and detailed information related to the issue, complaint, or allegation in order to conduct further investigation or referral. Allegations of health care fraud, errors, and abuse are SMP complex interactions complaints. Complex interactions complaints are frequently referred to by SMPs as cases. Complaints can also involve health care-related consumer scams aimed at stealing a Medicare beneficiary s identity or money. A complainant is anyone who submits a complex interactions complaint to the SMP about potential Medicare fraud, errors, or abuse. (The person may be a beneficiary, a caregiver, or even a health care provider). Complex interactions are usually time-consuming to address and often cannot be resolved in a single phone call or conversation. They require research (including consulting this manual), gathering all available information and documentation from the complainant, and entering all of this case information into the SMP Information and Reporting System (SIRS). Some complex interactions are resolved by the SMP and others result in a referral to external organizations for further investigation. Referrals of Complex Interactions When the term referral is used in conjunction with complex interactions, it means that the SMP is reporting a complaint to outside entities on behalf of the complainant. This is distinctly different from the use of the term referral in other contexts, such as when a client is given the contact information for appropriate organizations and expected to make contact on their own behalf. Key Concept In the SMP taxonomy and for purposes of this manual, referrals are made on behalf of the complainant by the SMP. Chapter 1 Page 4

13 Not all complex interactions involve a referral. This is a popular misconception. Only some complex interactions will need to be referred for further investigation. Each year, approximately half of SMP complex interactions nationally result in a referral. The other half are either errors resolved by the SMP, are determined not to be a problem after further research, or are suspended based upon lack of information or follow-through by the complainant. Understanding What is Not a Complex Interaction Not every complaint brought to an SMP can be considered a complex interaction. For example, someone may call complaining that Medicare is too complicated. A complaint? Yes. An SMP complex interaction? No. SMP services follow a continuum. The bulk of SMP activities fall into the category of outreach and education. As a result of this education, SMPs may receive many questions and concerns from beneficiaries and caregivers, including incidents of potential fraud, errors, and abuse. Remember the SMP Mission! The SMP mission is to empower and assist Medicare beneficiaries, their families, and caregivers to prevent, detect, and report health care fraud, errors, and abuse through outreach, counseling, and education. Just as not all complaints or time-consuming interactions are SMP complex interactions, situations may present themselves that are complex by nature but are not within the SMP mission: to empower and assist Medicare beneficiaries, their families, and caregivers to prevent, detect, and report health care fraud, errors, and abuse through outreach, counseling, and education. Complex interactions are related to the SMP mission. See the SMP Counselor Training Manual for more information about the different types of questions received by SMPs and how to determine which questions are considered to be complex interactions. Chapter 1 Page 5

14 Consumer Scams Older adults are frequent targets of solicitation through telemarketing, door-to-door sales, and the mail. Consumer scams by themselves are not considered SMP complex interactions. Consumer scams that target Medicare beneficiaries or use the Medicare program as a ruse to falsely obtain Medicare numbers ARE considered SMP complex interactions because they fall within the scope of the SMP mission. For more information about compromised Medicare numbers, see Chapter 3. The following pages provide information about where beneficiaries can go for help with consumer scams, whether or not the scam involves Medicare. For additional resources related to consumer scams, see the SMP Counselor Training Manual. Local Law Enforcement Local law enforcement should be alerted about suspicious solicitation through telemarketing, door-to-door sales, and the mail. Preferably, the beneficiary or caregiver should contact law enforcement on his or her own behalf. If the beneficiary or caregiver is unable to do so, the SMP may need to alert law enforcement. State Attorneys General As discussed earlier, SMPs also serve as public educators. Consumer scams targeting Medicare beneficiaries should also be reported to your state attorney general s office, which may be interested in issuing a public service announcement. The state attorneys general have law enforcement authority and serve as counselors to state legislatures and state agencies and also as the People s Lawyer for all citizens. The state attorneys general act as public advocates in the area of consumer protections, handle serious state-wide criminal prosecutions, institute civil suits on behalf of the state, and operate victim compensation programs. To find the attorney general s office in your state, visit the National Association of Attorneys General (NAAG) website: Federal Trade Commission The Federal Trade Commission (FTC) is a national partner with the SMP program. The FTC is the nation s consumer protection agency, pursuing vigorous law enforcement and sharing its expertise with federal and state legislatures and U.S. and international government agencies. Chapter 1 Page 6

15 Filing a complaint helps the FTC detect patterns of wrongdoing and leads to investigations and prosecutions. The FTC does not, however, manage individual complaints or follow up with complainants. Instead, the FTC enters all complaints it receives into its Consumer Sentinel, a secure online database that is used by thousands of civil and criminal law enforcement authorities worldwide. Because of the types of questions asked, it is preferable for beneficiaries to file their own complaints with the FTC; however, some SMP clients may not be able to complete this process and may need the SMP to file complaints on their behalf. Beneficiaries can file a consumer complaint or report identity theft with the FTC online or by telephone: Online: Toll-free helpline: FTC-HELP ( ) National Do Not Call Registry The FTC manages the National Do Not Call Registry, which is a free service that allows consumers to avoid receiving telemarketing calls. Most telemarketers should not call numbers that have been on the registry for 31 days. If they do, a complaint should be filed with the registry. The registry does not cover calls from political organizations, charities, telephone surveyors, or companies with which a consumer has an existing business relationship. Telephone numbers on the registry will only be removed when they are disconnected and reassigned or when the consumer chooses to remove a number from the registry. Beneficiaries can register by phone at or online at Better Business Bureau When you have the name of a suspicious company or provider marketing to beneficiaries, you can use the Council of Better Business Bureaus (BBB) national website to either research the business or file a complaint online. Here s how: 1. Go to 2. Type the name of the business, URL, phone number, etc. in the space provided. Chapter 1 Page 7

16 3. Enter a city, state/providence OR postal code that the business is near if it is known. 4. Any matches will appear. Follow the links provided to learn more about a specific entity, such as: o Whether or not the business is registered with the BBB o What rating it has been given by the BBB o The number and nature of complaints filed against it, if any o Whether or not any complaints were founded o Procedures for filing a complaint Recommended Resources Publications SMP Foundations Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SMP Counselor Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SIRS training resources: Available electronically from the SMP Resource Library at Online Resources FTC: o o o Do Not Call registry: National Association of Attorneys General: SMP Resource Library: Chapter 1 Page 8

17 SMP Complex Interactions Training Manual CHAPTER 2: Errors Overview Gathering Enough Information Case Notes Tips Determine Who Will Take the Next Step Release of Information Proper Handling of Sensitive Information Working Directly with Providers Working Directly with Medicare SMP Unique ID with Medicare Private Medicare Plans Following Up With the Complainant Advance Beneficiary Notice (ABN) Appeals Page 9

18 Continued Coordination of Benefits When Beneficiaries Face Collections Tracking and Reporting SMP Complex Interactions Data Entry Documenting Results Recommended Resources Publications Online Resources Page 10

19 Overview The first crucial step in responding to a complaint from a beneficiary is determining whether or not the problem is an innocent error. You may not always know, but it is important to remember that proving fraud requires the legal process ( innocent until proven guilty ). It is also important to consider the patient/provider relationship and, when possible, to give the provider the benefit of the doubt. Medicare is complicated and what may seem like an error to the beneficiary may simply be the result of a misunderstanding about benefits. This is where basic knowledge of Medicare coverage is essential. You should refer to the current version of the SMP Foundations Training Manual for help with this. It is also recommended that you refer to the current version of the Medicare & You handbook, published annually by the Centers for Medicare & Medicaid Services (CMS). SMP team members who manage complex interactions are also eligible to have what is called an SMP Unique ID with Medicare. This facilitates the ability to research Medicare claims and coverage information pertaining to individual SMP complex interactions, as will be further explained in this chapter and in Appendix B. Gathering Enough Information To determine how to handle each complex interaction, including whether you should suspect an error versus fraud or abuse, you will need to collect a lot of information. This is particularly true when the complaint involves an existing health care bill or insurance claim or the complainant is calling about confusing or suspicious charges appearing on the Medicare Summary Notice, Explanation of Benefits, or a bill from the provider for their copay or deductible. Start by gathering the following information, at a minimum: Beneficiary and/or complainant information o Start with the basics: name, Medicare number, and contact information (including mailing address). The more complicated the case, the more information you will need for example, Medicaid information, if applicable, age, type of health care problem, etc. o Your SMP program may have additional intake guidelines governing the amount and type of information you must request from a complainant. Chapter 2 Page 11

20 Type of Service: Ask what type of service has been billed and is being questioned. Type of Coverage: Ask whether the beneficiary has Original Medicare (Part A and Part B) or is enrolled in a Medicare Advantage Plan (Part C). If the service is a prescription drug, determine whether or not the beneficiary has Part D coverage. o Is the beneficiary dually enrolled in Medicare and Medicaid? o Does the beneficiary have a Medigap (Medicare Supplement Insurance) policy? Service Provider Information o Who is the provider? Does the provider participate in Medicare? Does the provider accept assignment? o Has the complainant contacted the provider and voiced concerns directly? If the answer is yes, find out how the provider responded. If the answer is no, ask why. Appeal Status: Find out if an appeal has already been filed, and if so, ask what the complainant knows about the status of the appeal. Advance Beneficiary Notice (ABN): This is a notice a provider or supplier may have asked a beneficiary with Original Medicare to sign stating that Medicare may not pay for certain services. (See page 16 for more information on ABNs). o Did the beneficiary sign an ABN? If so, was it blank? Include detailed case notes that describe the case, using as much detail as available. o If an error is suspected, explain why. o If this is a case of suspected fraud or abuse, provide a wellwritten, thorough narrative that will grab the attention of investigators. This description is a crucial aspect of your case. Use complete sentences, since this will be read by others. Explain key facts about the complaint leading you to the suspicion of fraud or abuse. Chapter 2 Page 12

21 Case Notes Tips Briefly describe the situation as the complainant described it to you. Be objective and factual do not enter subjective observations. Avoid using acronyms, including state-specific acronyms. If you do need to use them, make sure you explain what they mean. However, CMS, SMP, OIG, etc. are commonly understood. Record actions you take for complainants and/or that complainants took on their own behalf. For example, if you contacted another party on their behalf (Medicare, plan, doctor s office) be sure to include the date, time, and name of the person you talked to, what you talked to them about, and any resolutions. As you write your case notes, keep in mind that this is your time to explain the issue. Make sure it makes sense to someone who wasn t sitting with you when you met with the complainant. Determine Who Will Take the Next Step Beneficiaries may or may not be fully prepared with the facts you need when they first call. You may need to request additional information before determining the next best step or before taking any action. Information may be needed from a provider, Medicare, a Medicare Advantage Plan, or the beneficiary s own records. The SMP is not expected to manage the resolution of every suspected error on health care statements when beneficiaries are capable of taking basic preliminary steps on their own behalf. SMPs are expected to work with a beneficiary or other complainant to the best of their ability in order to resolve an issue. Some complainants may simply need the SMP s guidance and can gather additional information on their own. Others may not be able to navigate the complex health care system alone and may ask the SMP to make contacts on their behalf. Some good rules of thumb to follow are: If innocent error is suspected, counsel the complainant to contact the health care provider, Medicare, the Medicare Advantage Plan, and/or the Medicare Prescription Drug Plan to work it out. Ask the complainant to call you back if the response is inadequate. Also ask the complainant to call you back if the issue is resolved and cost savings result so that the savings can be documented by the SMP program. An inadequate response from a health care provider, Medicare Advantage Plan, or Medicare Prescription Drug Plan may point to a pattern, leading to suspected abuse or fraud. Chapter 2 Page 13

22 If you think the complaint might be part of a pattern being seen by your SMP or the national SMP network, you should escalate the complaint to suspected fraud or abuse and make a referral on behalf of the complainant (as described in Chapter 3). It may look like an error when looked at in isolation; however, when viewed in the context of the larger health care environment, patterns of error are suspected abuse or fraud. Use of MyMedicare.gov is recommended for beneficiaries enrolled in Original Medicare who want to see the most recent claims activity on their account. However, many older adults either lack access to a computer or have barriers to computer use, such as vision impairment, memory impairment, or language barriers. NOTE: Sometimes a beneficiary or caregiver will want to authorize an SMP representative to access MyMedicare.gov on behalf of a beneficiary. This poses ethical concerns for the SMP program because the SMP program is not authorized to use MyMedicare.gov this way. SMP representatives should instead use their authorized SMP Unique ID to research beneficiary claims involved in complex interactions. Release of Information If you need to contact a beneficiary s health care provider on his or her behalf, keep in mind that the provider will probably request a release of information. Releases of information are not required to make a referral of suspected fraud or abuse. However, it is important to tell complainants that they may be contacted by a CMS or law enforcement representative if their complaint leads to an investigation of suspected fraud. The SMP program does not investigate suspected fraud and abuse but it does forward such complaints to the proper authorities. You may need to take extra precautions when a complainant is not the beneficiary but is providing information about a beneficiary. If the beneficiary is incapacitated, you may want to request proof that the complainant has power of attorney or other similar legal status and ask him or her to sign a release of information. Proper Handling of Sensitive Information If you will be handling a beneficiary s sensitive, personal identifying information or other confidential information, keep in mind the privacy recommendations within the SMP Volunteer Risk and Program Management (VRPM) Information Technology policies. Though the policies were created with volunteers in mind, they reflect best practices for paid personnel as well. The consequences of a data breach are far reaching. They impact all parties involved: the beneficiary whose sensitive personal identifying information was compromised and the person or agency whose negligence led to the breach. In addition, you should check with your agency and follow any internal information handling policies. Chapter 2 Page 14

23 Working Directly with Providers When complainants have not contacted their providers directly with concerns, encourage them to do so and get back to you. If complainants are unwilling or unable to contact a provider on their own behalf, offer to make contact for them (but expect to be asked for a release of information). A responsive provider will work with the beneficiary or caregiver to correct errors or better explain charges. Checklist for working with providers: Is it a billing error that the provider can correct with Medicare, another payer, or the beneficiary? o If so, attempt to resolve at the provider level. o If not, proceed with a referral, as described in Chapter 3. Has the beneficiary already been sent to collections? o If so, review the section about collections in this chapter and proceed accordingly. Is a provider who participates in Medicare unwilling to bill according to Medicare s rules? o If so, proceed to the referrals process. Does the provider s behavior seem particularly egregious and far outside the realm of possible error? o If so, proceed with a referral of suspected fraud rather than contacting the provider. Have you received other complaints of errors about this provider? o If so, there may be a pattern of error, not an isolated incident. Proceed with a referral. Working Directly with Medicare Sometimes complainants lack the information SMPs need to fully understand the complaint. There are several ways to gather information other than from the beneficiary when needed. Chapter 2 Page 15

24 SMP Unique ID with Medicare Medicare can provide claims information for beneficiaries enrolled in Original Medicare. If the beneficiary is unable or unwilling to call Medicare, or if you determine that it would be more effective for you to speak directly with Medicare about a claim, you can use your SMP Unique ID with Medicare. Your SMP Unique ID will enable you to gather the necessary information about the beneficiary s benefits and recent claims information on his or her behalf. You are not required to obtain a release of information in order to speak with Medicare using your SMP Unique ID. SMPs are trusted CMS partners. Use of this ID is restricted to approved SMP team members (staff, volunteers, and partners) who manage SMP complex interactions. SMP Unique ID users must be authorized by their state s SMP director. See Appendix B for the SMP Unique ID User Guide. Key Concept The SMP Unique ID is used for researching claims and coverage issues related to complex interactions. Private Medicare Plans When beneficiaries are enrolled in private Medicare plans (Part C and/or Part D), requests for claims information should be made directly to their plan. Following Up With the Complainant All of this information gathering will take time, often requiring many phone calls. There are multiple avenues available to beneficiaries who come forward with Medicare complaints. The information you gather will help you determine the next step, including whether or not to make a referral of suspected fraud or abuse. Complaints are often multifaceted, requiring more than one course of action. Some actions will be taken directly by you, if they are within the mission of the SMP program (see Chapter 1), whereas other actions will be taken by the beneficiary, the provider, or another organization, if they are outside of the SMP mission. As you learned in Chapter 1, SMPs act as complaint managers in addition to referring suspected fraud, errors, and abuse. In this role, SMPs help beneficiaries navigate the Medicare system, understand and access other available service organizations, and understand and resolve the personal consequences that arise as a result of billing errors. Chapter 2 Page 16

25 Advance Beneficiary Notice (ABN) As mentioned earlier, an ABN is a notice that a provider or supplier may have asked a beneficiary with Original Medicare to sign stating that Medicare may not pay for certain services. It provides the beneficiary an opportunity to choose whether or not to accept services that may not be covered by Medicare. In determining the appropriateness of charges to a beneficiary, you need to know if he or she signed an ABN. The ABN explains to beneficiaries that they will have to pay if Medicare doesn t. There are many rules governing the use of ABNs. When the situation involves error or misunderstanding of Medicare rules, it can often be resolved at the beneficiary/provider level, with SMP intervention, if needed. SMPs and beneficiaries should understand the following key points if a beneficiary has signed a legitimate ABN: The beneficiary may be responsible for all or part of the entire claim. If the beneficiary checks (on the ABN) that she or he wants the service, the particular option she or he selects is important. Beneficiaries must select from three options, which convey the following concepts: Key Concept 1. Beneficiary accepts the service but DOES want the provider to bill Medicare. 2. Beneficiary accepts the service and does NOT want the provider to bill Medicare. 3. Beneficiary declines the service altogether. When a beneficiary signs an ABN, accepting service, the provider is allowed to immediately begin collecting payment and can even request payment upfront. If Medicare ultimately covers all or part of the charges, the beneficiary is owed a timely refund for the portion she or he had already paid after signing the ABN. Review the Medicare & You handbook and CMS online resources for more information about ABNs. Appeals Suspected fraud regarding the use of ABNs and how to refer such cases is covered in Chapter 3. Complex interactions involving potential error may involve a claim denied by Medicare. Upon review, you or the beneficiary may disagree with Medicare s decision. Chapter 2 Page 17

26 Keep in mind the following considerations: Follow up with the provider to make sure the claim made to Medicare correctly reflects the service provided. (You or the beneficiary can take this step, depending upon the beneficiary s capacity.) 1. If payment for charges submitted to Medicare were denied, the beneficiary has the right to appeal. 2. The appeals process is explained to beneficiaries on their MSN if they are in Original Medicare. Beneficiaries in Part C or Part D can obtain appeals information from their plan. For more information on the appeals process, visit 3. Filing appeals is outside of the scope of the SMP program; however, it is important to be familiar with the process so that you can appropriately counsel beneficiaries about the steps to take and the service providers available to help them. The State Health Insurance Assistance Programs (SHIPs) and legal service providers are considered the primary experts and client advocates regarding the appeals process. o To find the SHIP in your state, visit the SHIP National Technical Assistance Center website: o To find the legal service provider in your state, visit the National Legal Resource Center website: 4. If the beneficiary has already appealed a claim, it may be preferable to wait for the result before referring the case for further investigation. Criminal violations of the law should still be referred to the appropriate investigative entity even if an appeal will be or has been filed. Coordination of Benefits Some errors brought to the SMP s attention may be the result of mistakes, confusion, or problems related to a Medicare beneficiary s other health coverage. Depending upon the circumstances, Medicare may be the secondary payer, not the primary payer. Medicare Secondary Payer (MSP) is the term generally used when the Medicare program does not have primary payment responsibility that is, when another entity has the responsibility for paying before Medicare. In some cases, the beneficiary may have forgotten to notify Medicare about other coverage or there may have been a mistake made at some level within the Medicare claims processing system. If a beneficiary has other health coverage besides Medicare, and many do, coordination of benefits rules decide which pays first. Examples of health care coverage that would pay first include employer group health plans, Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), retiree health plans, no-fault insurance and liability insurance, and workers compensation insurance. Chapter 2 Page 18

27 Conditional Payments Sometimes, SMPs receive complaints and questions related to what Medicare calls a conditional payment. A conditional payment is a payment Medicare makes for services another payer may be responsible for. Medicare makes this conditional payment so the beneficiary won t have to use his or her own money to pay the bill. The payment is conditional because it must be repaid to Medicare when a settlement, judgment, award, or other payment is made. If Medicare makes a conditional payment for an item or service and the beneficiary receives a settlement, judgment, award, or other payment for that item or service from an insurance company later, the conditional payment must be repaid to Medicare. The beneficiary is responsible for making sure Medicare gets repaid for the conditional payment. Questions about who pays first and conditional payments should be directed to the Benefits Coordination & Recovery Center (BCRC). To Contact the BCRC: Call: TTY users should call Have the Medicare number available. Callers may also be asked the following information: o Social Security number o Address o Medicare effective date(s) o Whether the beneficiary has Medicare Part A and/or Part B coverage When Beneficiaries Face Collections When claims are denied or disputed, it is possible beneficiaries may be sent to collections if they are unwilling or unable to pay the associated out-of-pocket expenses. It is not expected or desired that the SMP assist the beneficiary with the details of the collections process, but it is useful to know some basic information in order to answer their questions about suggested next steps and available resources. You can suggest that the beneficiary contact the provider or you can ask the beneficiary for permission to contact the provider on his or her behalf. The provider has the ability to note that the matter is under review or in dispute and can stop the bills from coming until the matter is resolved. If the beneficiary is still sent to collections, providers can later get incorrect charges pulled from collections. Chapter 2 Page 19

28 Refusing to pay generally works best for beneficiaries when it is very clear that the error is on the part of the provider, not the beneficiary, such as when a provider is billing for a service that was never provided. In other circumstances, it may be best for the beneficiary to set up a payment plan in order to avoid collections. This approach could be preferred in a case where a beneficiary did receive a service but is disputing some detail of the bill that it was upcoded, that the service should have been covered by Medicare and wasn t, etc. Many Medicare beneficiaries are living on a fixed income. If they find themselves legitimately responsible for a high medical bill, they may need the help of other service organizations that assist persons facing financial hardship. Depending upon the nature of your agency, it may be most appropriate to have them talk with someone else in your agency whose area of expertise is connecting clients with other services or service organizations. Abusive Collection Practices There are federal and state laws protecting consumers from abusive, deceptive, and unfair debt collection practices. For information on fair debt collection, view the National Consumer Law Center s website and publications: (Click on Issues, then Debt Collection. ) Tracking and Reporting SMP Complex Interactions Data Entry All SMP complex interactions, including cases involving fraud and abuse and cases involving errors, are entered in the SMP Information and Reporting System (SIRS). SIRS is also used to make referrals of complex interactions. SIRS is often accessed multiple times for each complex interaction as the case is developed. For example: Each complex interaction is entered in SIRS after your first conversation with the beneficiary to record the initial conversation and any information you already know at that point. The complex interaction is updated in SIRS each time you discover new information about the case, when you collect documentation from the beneficiary or a provider, and when you make a referral. The complex interaction is closed in SIRS once final resolution of the case has been reached, at which time any findings and final documentation are added to the case in SIRS. Instructions for entering, updating, and closing complex interactions in SIRS are provided as separate SIRS complex interactions training, available in the SMP Resource Library. Chapter 2 Page 20

29 Documenting Results As you learned in SMP Foundations Training, SMPs report their outcomes every year to the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG), Office of Evaluation and Inspections. The OIG Report of SMP outcomes is published every year and is available to the public. As part of the OIG Report, the SMP program is measured on financial outcomes related to complex interactions and referrals. The ability of each SMP program to receive credit for cost avoidances, savings to the beneficiary, and recoveries to Medicare, Medicaid, or a Medigap plan is one way to ensure the continued support of Congress for the SMP program. Key Concepts Educate beneficiaries to request a copy of the corrected or $0 balance bill or statement as proof that their billing complaint was resolved. This is important for their records and also for your SMP, who will need a copy to document cost avoidance, savings, and recoveries. Follow the SMP policies for the safe, confidential, and secure transport and storage of documents. Keep in mind that though you can rely on your SMP Unique ID with Medicare to conduct claims research, Medicare is not able to provide SMPs with documentation about changes made to Medicare claims as a result of SMP intervention (such as corrected MSNs). Because of this, getting credit on the OIG Report for recoveries and savings is dependent upon your ability to obtain documentation from beneficiaries, caregivers, or other sources. Since beneficiaries are often your only source of this information, please work with them to gather the necessary documentation and post it in SIRS. In many cases, you receive copies of MSNs, EOBs, and health care bills from the complainant documenting the potential error or other suspicious activity. Inform complainants that they will also need to provide you with documentation showing corrections or reimbursements. This allows you to account for the cost avoidances and savings in a way that fulfills the OIG s audit requirements. Such accounting is vital to the success of the SMP program and impacts not just your state but the SMP network as a whole. NOTE: If you hear that the beneficiary has resolved an issue on their own that resulted in saving or recovering money (for themselves or for Medicare) because of the education they received by the SMP AND they can provide documentation to prove it, treat this case as a complex interaction. Follow the necessary steps to enter it in the data system and collect documentation from the beneficiary. Here are some examples of documentation that meet OIG Report standards: Copy of a canceled check or a reimbursement check Corrected hospital billing statement Chapter 2 Page 21

30 Letter from provider or supplier explaining the amount of the savings or recovery Letter or other evidence from a CMS program integrity contractor, CMS claims processing contractor, or an investigative agency Key Concept ACL understands that the value of the SMP program goes beyond the ability to document recoveries, savings, and cost avoidance: 1) Documentation may be difficult or impossible to obtain. 2) SMPs must also rely on outside entities to obtain this documentation, putting the ability to get credit for these monetary outcomes outside SMP control. The SMP program is, in large part, a prevention model and prevention is difficult to measure. However, when working with complex interactions, it is still important to at least seek documentation. Recommended Resources Publications Appendices of this manual SMP Foundations Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SMP Counselor Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SIRS training resources: Available electronically from the SMP Resource Library at Medicare & You handbook: or call Medicare to order a new copy each year Medicare and Other Health Benefits: Your Guide to Who Pays First (CMS): Medicare Advance Beneficiary Notices: Chapter 2 Page 22

31 Benefits Coordination & Recovery Center (BCRC): Tips for Managing Your Rights and Responsibilities as a Medicare Beneficiary: Recovery/Beneficiary-Services/Medicares-Recovery- Process/Downloads/Rights-and-Responsibilities-Brochure.pdf Online Resources SMP Resource Center: o SMP Foundations Training Online: Available at > Resources for SMPs > Training Administration for Community Living: Review the SMP Volunteer Risk and Program Management Policies in the SMP Resource Library at CMS: o o o o Medicare Secondary Payer: Type Medicare Secondary Payer into the search box or click on: Recovery/Coordination-of-Benefits-and-Recovery-Overview/Medicare- Secondary-Payer/Medicare-Secondary-Payer.html Center for Medicare Advocacy: Medicare Rights Center: National Consumer Law Center: Click on Issues then Debt Collection or click on: National Legal Resource Center: SHIP National Technical Assistance Center: Chapter 2 Page 23

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33 SMP Complex Interactions Training Manual CHAPTER 3: Referrals Overview Suspicious Marketing Suspected Fraud or Abuse SMP Referrals Processes and Procedures Information to Include Data Entry Documenting Results Appropriate Expectations Referrals to the OIG Hotline Provider Fraud and Abuse: Laws and Examples Fraud and Abuse by Pharmacies Understanding DMEPOS Marketing Violations DME (Durable Medical Equipment) Fraud and Abuse Page 25

34 Continued Compromised Medicare Numbers Beneficiary Participation in Fraud (Knowing) OIG Hotline Response to SMP Referrals Referrals Involving Medicaid Medicaid Provider Fraud When to Involve the State Medicaid Agency Referrals to the CMS RO DOI Liaison Know the Difference between Marketing and Education Okay or Not Okay? Suspected Part C and Part D Marketing Violations Persistent Customer Service Issues Referrals to the State Department of Insurance Complaints against Agents and Brokers Medigap Sales Lead Generators Referrals to the MEDIC Referrals of Quality-of-Care Complaints Quality Improvement Organizations (QIOs) State Licensing Boards State Long-Term Care Ombudsman Program Recommended Resources Publications Online Resources Page 26

35 Overview Though some beneficiaries report suspected fraud and abuse to the Office of Inspector General using HHS-TIPS or to CMS using Medicare, not all beneficiaries are able to use these other complaint mechanisms effectively. Some beneficiaries may even be referred to the SMP by Medicare. For example, Medicare may think the beneficiary would benefit from SMP program assistance in further developing and referring a complaint. The SMP provides a type of specialized and individualized assistance at the local level that CMS and the OIG are unable to provide. SMPs have the knowledge necessary to prepare a high-quality referral. Also, beneficiaries may need the SMP program s help in connecting with needed community resources. In this chapter, we will look at SMP complex interactions that are referred by the SMP to outside agencies for further investigation, including complaints involving suspicious marketing and complaints related to other types of suspected fraud and abuse. Suspicious Marketing Tip: As you read through this chapter, see Appendix A: SMP Referrals Flow Chart for a summary of where to send each type of referral. Some types of suspected health care fraud and abuse complaints arise before a health care service has even been provided. They result from the marketing and sales of health insurance or health services including purported insurance or services to Medicare beneficiaries. There are three main categories of such solicitation considered to be SMP complex interactions that should be referred to investigative entities: 1) Medicare Advantage (Part C) and Medicare prescription drug coverage (Part D) marketing violations 2) Durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) marketing violations 3) Attempted theft of Medicare numbers through solicitation Suspected Fraud or Abuse Most complaints of suspected health care fraud, errors, and abuse received by SMPs arise after a health care service has been provided or a bill or statement has been received. If you have ruled out error or if the suspected error was not resolvable at the provider level, you should refer the complaint to investigative entities as suspected fraud or abuse. Chapter 3 Page 27

36 It is important to remember that complex interactions received by SMPs should be considered suspected fraud or abuse. It will take an investigation by the appropriate entities to make a legal determination. Although the SMP Foundations Training Manual defines fraud and abuse and also provides some examples, this chapter explores examples in greater depth and in the context of anti-fraud laws. One primary goal of this chapter is to assist you in knowing when and how to refer suspected fraud and abuse. Intentionality As you learned in SMP Foundations Training, the primary distinction between fraud and abuse lies with intent. Unlike abuse, which is not knowing or intentional, fraud assumes criminal intent. SMPs aren t usually in the position to determine intentionality, that significant dividing line between determining whether there is suspected fraud or abuse. The determination of intentionality will be made by the investigative entities that receive SMP referrals. Because of these factors, you will not need to determine whether a complaint involves abuse versus fraud in order to make an appropriate referral. Patterns of Error A pattern of error by a particular provider or plan increases the likelihood of fraud or abuse and is considered a red flag. SMPs are usually not in a position to determine patterns unless they have received multiple complaints about a particular provider or plan. If a pattern does emerge, however, a referral should be made for further investigation. Following up regarding each individual error may not address the underlying problem. SMPs are not in a position to address underlying problems at the provider or plan level but the investigative entities who receive your referral are in that position. They may determine that the matter can be addressed through provider education or, based on the investigative tools at their disposal, they may make a determination of fraud or abuse and take corrective action, legal action, or prosecute. NOTE: Patterns of error should be referred to the OIG Hotline via ACL when they involve a provider and to the CMS Regional Office (RO) Department of Insurance (DOI) liaison when they involve a plan. SMP Referrals Processes and Procedures Chapter 2 explained the type of information that should be gathered for complex interactions. When you determine a referral is necessary, you may need to gather additional information. Although releases of information are not required to make a referral of suspected fraud or abuse, you will also need to get the beneficiary s (or other complainant s) permission to be contacted as needed by those working on their case. Chapter 3 Page 28

37 Information to Include Complex interactions that will be referred to investigative entities should also: Contain all known information about the provider. Include any details in the case notes that may be beneficial to ACL, CMS, or the OIG. Keep in mind that this is your time to explain the situation to ACL, the OIG, and/or CMS. Describe the situation in full. Try not to leave out details. ACL, CMS, and the OIG may find meaning in details SMPs do not. Include supporting facts and available documentation, such as the Medicare Summary Notice (MSN), Explanation of Benefits (EOB), plan sponsor statements, bills received by the beneficiary, and notes from discussions with the complainant, provider, and others, if applicable. Indicate the permission to be contacted as needed by those working on the case. NOTE: If the complainant wishes to remain anonymous, you should still document the case as a complex interaction and make a referral. However, anonymous referrals are not as optimal for investigative entities since no follow-up can be performed by the entity receiving the referral. If a complainant refuses to provide their name and contact information, the other information available about the complaint becomes even more important, such as the geographic location where suspected fraud or abuse is taking place and the name of the provider involved. Data Entry As described in Chapter 2, all complex interactions are entered in SIRS. SIRS is also used to make referrals of complex interactions. Instructions for entering and updating complex interactions in SIRS are provided as separate SIRS complex interactions training, available in the SMP Resource Library. Documenting Results As described in Chapter 2, it is important to demonstrate cost avoidances, savings to the beneficiary, and recoveries to Medicare, Medicaid, or a Medigap plan that result from your SMP s work related to complex interactions and referrals. Getting credit on the OIG Report for recoveries and savings depends on your ability to obtain documentation from beneficiaries, caregivers, or other sources. NOTE: In the case of referrals to the MEDIC, the MEDIC may provide SMPs with follow-up information in response to complaints of Part C and Part D fraud. The MEDIC typically provides follow-up information in a letter. Chapter 3 Page 29

38 Appropriate Expectations It can be months or years before a complaint is entirely resolved. Complaints that are referred to law enforcement will take longer to resolve than complaints addressed by CMS through administrative action. The more egregious the suspected fraud or abuse, the longer it is likely to take to resolve. Make sure your complainant clearly understands the SMP role. It is important to set appropriate expectations of your SMP program. SMPs can impact the resolution of fraud and abuse by submitting quality referrals; however, the final outcomes are outside of SMP control. Referrals to the OIG Hotline The Administration for Community Living (ACL) has developed a national referrals partnership with the Office of Inspector General (OIG) Hotline for the SMP program. Under this partnership, SMP referrals of suspected fraud and abuse that involve Medicare-covered services are routed to the OIG Hotline by ACL headquarters. This process has several advantages: 1. It involves law enforcement (the OIG) as soon as possible once the SMP has learned about a case of suspected fraud. 2. The OIG Hotline tracks Senior Medicare Patrol as a distinct referral source, enabling follow-up with ACL and SMPs about the outcome of every referred case. 3. The OIG Hotline works closely with CMS. The OIG routes cases to CMS, as needed, for further work-up. CMS reports back to the OIG about actions taken. 4. The long-term goal of this partnership is to better credit the SMP program for its impact against fraud and also to better tell the SMP story. NOTE: Many SMPs have also developed successful partnerships with their state or regional OIG offices. Though state and regional partnerships are outside the scope of this manual, they have proven to be very helpful for those SMPs with partnerships, particularly as a source of education and technical assistance. Provider Fraud and Abuse: Laws and Examples The information in this section about fraud and abuse laws was based on the Office of Inspector General publication A Roadmap for New Physicians; Avoiding Medicare and Medicaid Fraud and Abuse: Chapter 3 Page 30

39 As explained in the OIG publication: Most physicians strive to work ethically, render high-quality medical care to their patients, and submit proper claims for payment. Society places enormous trust in physicians, and rightly so. Trust is at the core of the physician-patient relationship. When our health is at its most vulnerable, we rely on physicians to use their expert medical training to put us on the road to a healthy recovery. The Federal Government also places enormous trust in physicians. Medicare, Medicaid, and other Federal health care programs rely on physicians medical judgment to treat beneficiaries with appropriate services. When reimbursing physicians and hospitals for services provided to program beneficiaries, the Federal Government relies on physicians to submit accurate and truthful claims information. Experience has shown, however, that some fraud and abuse is perpetrated by unethical health care service providers (not just imposters, beneficiaries, or insurance companies). There are five major fraud and abuse laws that apply to providers: False Claims Act Exclusion Statute Anti-Kickback Statute (AKS) Civil Monetary Penalties Law Physician Self-Referral Law Cases involving violations any of these laws are referred to the OIG Hotline via ACL. False Claims Act Under the False Claims Act, it is illegal to submit claims for payment to Medicare or Medicaid that the provider knows or should know to be false or fraudulent. Incorrect reporting of diagnoses to maximize payments o Example: Providing a diagnosis that will qualify a patient for hospice care when there is no real indication that the patient has a terminal illness with a 6-months-or-less life expectancy. Incorrect reporting of procedures to maximize payments, such as upcoding Chapter 3 Page 31

40 o Example: Medicare pays for many physician services using evaluation and management (commonly referred to as E&M ) codes. New patient visits generally require more time than follow-up visits for established patients, and therefore E&M codes for new patients command higher reimbursement rates than E&M codes for established patients. An example of upcoding is an instance when a provider provides a followup office visit or follow-up inpatient consultation but bills using a higher level E&M code as if the provider had provided a comprehensive new patient office visit or an initial inpatient consultation. Billing for services not provided or supplies not furnished o Includes billing Medicare for appointments that a patient failed to keep. Deliberate duplicate billing in an attempt to get paid twice, such as: o Billing both Medicare and a beneficiary for the same service. o Billing both Medicare and another insurer for the same service. Altering claims forms, electronic claims records, medical documentation, etc., to obtain a higher payment amount Unbundling or exploding charges o Billing separately for services already included in a bundled fee, like billing for an evaluation and a management service the day after surgery when those services would normally be included in the original surgery claim. Billing based on gang visits o Example: A physician visits a nursing home and bills for 20 nursing home visits without furnishing any specific service to individual patients. Billing noncovered or nonchargeable services as covered items o Example: Clipping toenails for an older person (not billable to Medicare without qualifying foot conditions) but charging for nail debridement (billable to Medicare). Billing for services that were not medically necessary Billing for services that were performed by an improperly supervised or unqualified employee Chapter 3 Page 32

41 Billing for services that were performed by an employee who has been excluded from participation in federal health care programs o See Exclusion Statute below. Exclusion Statute The exclusion statute provides the OIG with the ability to ban providers who have broken the law from further participation in any federally funded health care program. According to the OIG, individuals and entities will be excluded for the two following categories of crimes: Mandatory exclusions:...for the following types of criminal offenses: Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare, Medicaid, State health care programs; patient abuse or neglect; felony convictions for other health care related fraud, theft, or other financial misconduct; and felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances. Permissive exclusions:...misdemeanor convictions related to health care fraud...the unlawful manufacture, distribution, prescription, or dispensing of controlled substances; suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity; provision of unnecessary or substandard services; submission of false or fraudulent claims to a Federal health care program; engaging in unlawful kickback arrangements; and defaulting on health education loan or scholarship obligations; and controlling a sanctioned entity as an owner, officer, or managing employee. The OIG maintains an online database of excluded providers. Visit and select Exclusions. If a complaint involves a provider on the excluded list, refer the case to the OIG Hotline via ACL. Anti-Kickback Statute (AKS) Key Concept To find out if a provider is excluded from the Medicare program, visit and select Exclusions. In some industries, it is acceptable to reward those who refer business to you. However, in federal health care programs, paying for referrals is a crime. The Anti- Kickback Statute (AKS) covers the payers of kickbacks (those who offer or pay remuneration) as well as the recipients of kickbacks (those who solicit or receive remuneration). Each party s intent is a key element of their liability under the AKS. Chapter 3 Page 33

42 Examples include: Soliciting, offering, or receiving a kickback, bribe, or rebate Paying for referral of patients o Such as in exchange for ordering diagnostic tests and other services. o Such as in exchange for medical equipment. Offering free services in exchange for utilizing the provider s services NOTE: This does not include free prescription drug samples provided by the physician as part of a visit. According to the OIG s Roadmap for New Physicians, Many drug and biologic companies provide physicians with free samples that the physicians may give to patients free of charge. It is legal to give these samples to patients for free, but it is illegal to sell the samples. Paying Medicare or Medicaid patients for utilizing the provider s business Routinely waiving copays o Waiving copays cannot be advertised, done routinely, or used as an inducement. NOTE: Physicians may waive copays on a case-by-case basis if they determine in good faith that an individual is in financial need or if all reasonable efforts to obtain payment have failed. Civil Monetary Penalties Law There are other ethical violations that should be referred for which the OIG may seek penalties, authorized by the Civil Monetary Penalties Law. Examples of violations to the Civil Monetary Penalties Law that SMPs might hear about include the following: Completing Certificates of Medical Necessity (CMN) for patients not personally and professionally known by the provider Participating in schemes involving collusion between a provider and a beneficiary or between a supplier and a provider, resulting in higher costs or charges to the Medicare program Chapter 3 Page 34

43 Violating the Medicare Participating Physician or Supplier Agreement (CMS Publication 460): Physicians or suppliers who sign this agreement must abide by the criteria or be referred to the OIG Hotline for suspected fraud or abuse. Here are some key points about this agreement: o As explained in Chapter 2 of the SMP Foundations Training Manual, there are rules that apply to participating physicians and suppliers who accept assignment. Review these rules before determining whether or not there has been a suspected violation. o Physicians should not have beneficiaries sign blank ABNs. (ABNs were also discussed in Chapter 2 of this manual.) Providing false or misleading information Misrepresentations regarding: o Dates and/or descriptions of services furnished. o Identity of beneficiary. o Identity of individual who furnished services (for example, using another prescriber s Drug Enforcement Agency number or prescription pad). Script mills o Prescriptions written that are not medically necessary, often in mass quantities, and often for individuals who are not patients of a provider. Prescribing based on illegal inducements rather than on the clinical needs of the patient Medical identity theft: stealing a beneficiary s personal information (name, Social Security number, or Medicare number) to obtain medical care, buy drugs, or submit fake billings to Medicare Physician Self-Referral Law (Stark Law) According to the OIG, The Physician Self-Referral Law, commonly referred to as the Stark Law, prohibits physicians from referring patients to receive designated health services payable by Medicare or Medicaid from entities with which the physician or an immediate family member has a financial relationship, unless an exception applies. Chapter 3 Page 35

44 For example, it is a Stark Law violation when a physician refers a patient for one of the following products or services despite having a financial relationship with the designated service: Clinical laboratory services Physical therapy, occupational therapy, and outpatient speech-language pathology services Radiology and certain other imaging services Radiation therapy services and supplies Durable medical equipment (DME) and supplies Parenteral nutrients (through the veins), enteral nutrients (through a tube), and their associated equipment and supplies Prosthetics, orthotics, and prosthetic devices and supplies Home health services Outpatient prescription drugs Inpatient and outpatient hospital services Stark violations are not very transparent and will be difficult for beneficiaries or SMPs to detect. There are also safe harbors, allowing some types of financial relationships, so it even requires a lot of research on the part of the OIG to determine if there s a violation. However, if you or a complainant suspects a Stark Law violation, it should always be referred for further investigation. Fraud and Abuse by Pharmacies The following examples of fraud and abuse are relevant to pharmacists, who must also abide by the same laws outlined above that apply to providers. The following violations conducted by retail, mail order, and long-term care pharmacies should be referred to the OIG Hotline via ACL: Prescription Issues o Prescription drug switching; not only is switching medications for financial gain unethical and dangerous, it is also fraudulent. Chapter 3 Page 36

45 o Prescription drug shorting: When the pharmacist provides less than the prescribed quantity and intentionally does not inform the patient but bills for the fully prescribed amount. o Splitting a prescription inappropriately for example, splitting a 30-day prescription into four 7-day prescriptions. This incurs additional costs in the form of copayments and dispensing fees. o Dispensing adulterated prescription drugs. o Forging and altering prescriptions. o Dispensing drugs that are expired or have not been stored or handled in accordance with manufacturer and FDA requirements. TrOOP (True Out-of-Pocket Cost) manipulation o TrOOP manipulation occurs when a pharmacy falsely reports that a beneficiary has not satisfied the required deductible (when the beneficiary actually has), generating excess charges to the beneficiary. o TrOOP manipulation also occurs when a pharmacy falsely reports that the beneficiary has satisfied the deductible (when the beneficiary actually has not), generating excess charges to Medicare. Steering a beneficiary toward a certain plan or drug, or for formulary placement Inappropriate billing practices o Billing for brand names when generics are dispensed. o Billing for covered drugs when noncovered drugs are dispensed. o Billing for nonexistent prescriptions. o Billing for prescriptions that are never picked up. o Charging the retail price rather than the negotiated price. o Bait-and-switch pricing: Occurs when a beneficiary is led to believe that a drug will cost one price but at the point of sale the beneficiary is charged a higher amount. NOTE: Drugs may be billed to Part B and/or Part D for beneficiaries enrolled in Original Medicare. Chapter 3 Page 37

46 Understanding DMEPOS Marketing Violations As explained in Chapter 4 of the SMP Foundations Training Manual, there are legal guidelines that limit the ability of DMEPOS (durable medical equipment, prosthetics, orthotics, and supplies) providers and suppliers to market directly to beneficiaries. As a reminder, marketing of Medicare-covered items can only take place under one or more of the following three circumstances: The beneficiary has given written permission to be contacted. The supplier is contacting the beneficiary about an item already provided. The supplier has furnished one Medicare-covered item within the previous 15 months. Unsolicited direct contact with beneficiaries It is unfortunately common for these guidelines to be violated, which is fraudulent. Violations should be referred to the OIG Hotline via ACL. Common examples include: Soliciting beneficiaries for their Medicare numbers or physicians names. Trying to market diabetes supplies or back braces; not only can these calls result in the theft of Medicare numbers, they can also result in faxes being sent to physicians asking them to sign off on orders for equipment or supplies the beneficiary may not need or want. In its fraud alert on the subject, the OIG also emphasized that the guidelines apply to independent marketing firms. Providers and suppliers cannot do indirectly what they are prohibited from doing directly. DME Fraud and Abuse Durable medical equipment (DME) includes devices such as wheelchairs, back and knee braces, portable oxygen equipment, and orthotics. DME fraud and abuse complaints are referred to the OIG Hotline via ACL if the beneficiary was covered by Original Medicare. If the beneficiary was covered by Part C or Part D, the complaint is referred to the MEDIC, as described on page 46. Examples of DME complaints include: Providing unnecessary equipment Not supplying the equipment at all Providing it to a person not eligible for Medicare or Medicaid Paying kickbacks or referral fees for patients Upcoding or billing for different or more expensive equipment than is provided Chapter 3 Page 38

47 Compromised Medicare Numbers Scam artists solicit Medicare numbers because they can be used to submit false claims to Medicare and because they contain Social Security numbers that can also be used to commit identity theft. When Medicare beneficiaries fall prey to consumer scams aimed at obtaining Medicare numbers, their Medicare number is considered to be compromised as a result of medical identity theft. This type of complaint is an SMP complex interaction that should be referred to the OIG Hotline via ACL. The OIG Hotline will alert CMS, which maintains the national list of compromised Medicare numbers. The beneficiary should also report the issue to local law enforcement and the Federal Trade Commission, as described in Chapter 1 and Appendix A. If the beneficiary is unable to do so on his own, it is within the scope of the SMP mission to help take these steps for cases related to Medicare fraud and abuse, such as medical identity theft. NOTE: For more information to help beneficiaries report identity theft to the FTC, see the SMP Counselor Training Manual. Key Concept If a beneficiary has given her Medicare number to a solicitor, her Medicare number is considered to be compromised. Make a referral to the OIG Hotline via ACL. Beneficiary Participation in Fraud (Knowing) It is fraudulent for beneficiaries to collude with providers (or scam artists posing as providers) to falsely bill Medicare. Beneficiaries who knowingly participate in fraud are unlikely to contact the SMP. It is more likely for this type of behavior to be brought to the SMP s attention by a third party. These reports are rarely received by SMPs, but when they do occur, they must be referred to the OIG Hotline via ACL. Examples of beneficiary participation in fraud include: Using another person s Medicare card to obtain medical care (medical identity theft in addition to Medicare fraud) Accepting money, gifts, or services in exchange for their Medicare number Participating in capping schemes: Chapter 3 Page 39

48 o Cappers (also known as recruiters ) will solicit beneficiaries for their Medicare numbers in exchange for cash, gifts, and free services, such as transportation. o Some beneficiaries have been known to act as cappers themselves, accepting money to recruit other beneficiaries to participate in a scheme. o Some of these schemes involve the provision of health care services that are phony, unnecessary, or possibly even harmful to participating beneficiaries. OIG Hotline Response to SMP Referrals Upon receipt of SMP referrals, the OIG Hotline reviews the information received to determine the best next steps. These next steps may include opening a case for further investigation, referring the case to OIG regional offices, and/or passing the complaint to CMS. Because of the nature of the OIG investigation process, the OIG cannot follow up with complainants on the status of any case until it has been closed. This is done to protect the integrity of the investigation. If an investigation has been opened, a beneficiary or complainant may occasionally be contacted by the OIG for more information. Even then, the OIG will not be able disclose any information on the status of a case. Because the OIG Hotline may share SMP cases with CMS, these cases may be worked up by CMS contractors. If CMS contractors make a determination about the case, they may follow up with the complainant in writing. Referrals Involving Medicaid Though the SMP program mission is to serve Medicare beneficiaries and their caregivers, many Medicare beneficiaries are dually enrolled in Medicare and Medicaid. As you learned in Chapter 2 of the SMP Foundations Training Manual, these beneficiaries are called dual-eligibles. When there are improper Medicare payments on a claim for a dually enrolled beneficiary through fraud, errors, or abuse, the integrity of the Medicaid program is also compromised. The Medicaid program is vulnerable for the same reasons that the Medicare program is vulnerable fraud and abuse may be committed by both providers and beneficiaries. The laws governing Medicare fraud and abuse also apply to Medicaid. Chapter 3 Page 40

49 Medicaid Provider Fraud Suspected Medicaid provider fraud should be referred to both the OIG Hotline via ACL and the state Medicaid Fraud Control Unit (MFCU). This acronym is commonly pronounced moo-foo-coo. MFCUs investigate and prosecute health care providers that defraud the Medicaid program. They are also charged with collecting any overpayments they identify Key Concept Refer suspected Medicaid fraud to both the OIG Hotline via ACL and the state Medicaid Fraud Control Unit (MFCU). To find your state MFCU, visit while carrying out their activities. Although recipients also commit Medicaid fraud, as stated by the National Association of Medicaid Fraud Control Units, the jurisdiction of the Medicaid Fraud Control Units (MFCUs) is limited to investigating and prosecuting Medicaid provider fraud. All providers who receive Medicaid reimbursement are subject to scrutiny by the state MFCU. When to Involve the State Medicaid Agency When a Medicaid beneficiary perpetrates Medicaid fraud, it should be referred to the OIG Hotline via ACL and also to the state Medicaid agency. The state Medicaid agency also addresses suspected billing errors. You can locate your state Medicaid office at (At press time, a state locating tool was available at Referrals to the CMS RO DOI Liaison CMS Regional Offices (ROs) have staff dedicated to working with each state s Department of Insurance (DOI). These staff members are known as the CMS RO DOI liaisons. They handle complaints of suspected plan compliance and enforcement violations, including but not limited to Part C and Part D marketing violations. Know the Difference between Marketing and Education Unlike Original Medicare, Medicare Part C and Part D are administered, marketed, and sold by private insurance companies. The Centers for Medicare & Medicaid Services (CMS) has developed guidelines for marketing Part C and Part D insurance that protect Medicare beneficiaries from manipulative and deceptive sales and enrollment tactics. Chapter 3 Page 41

50 Plan sponsors and their representatives, including agents and brokers, must follow strict guidelines when they wish to market to beneficiaries. Marketing is equivalent to steering beneficiaries toward their plan. A fundamental principle is that marketing cannot be conducted under the guise of education. Providing neutral information can be considered education. Selling a product can be considered marketing. In practice, however, it s not that simple, considering CMS publishes more than 100 pages of guidance on the subject. CMS Definitions Education is informing a beneficiary in an unbiased way about Original Medicare, Medicare Advantage Plans, Part D plans, and Medicare Advantage Plan products. Marketing is steering, or attempting to steer, a potential enrollee toward a plan or a limited number of plans, or promoting a plan or a number of plans. Key Concept Plans may provide education at a marketing event, but they may not market or sell at an education event. The way an event is conducted and advertised is crucial to determining whether or not a violation of the CMS marketing rules has occurred. Many activities allowed at marketing events are prohibited at education events. For example, though both types of events involve the provision of information in group settings, educational events must only be held in a public venue, whereas marketing events can also be held at an in-home or one-on-one setting. Here are some overarching guidelines: Education events are clearly advertised to beneficiaries as such. Education events may be hosted either by the plan sponsor or by an outside entity and are held in a public venue. Education events may not include any sales activities such as the distribution of marketing materials or the distribution or collection of plan applications. Marketing/sales events are clearly advertised to beneficiaries as such. Plan sponsors may promote specific benefits, premiums, or services offered by the plan. Plan sponsors may conduct a formal event where a presentation is provided to Medicare beneficiaries or an informal event where plan sponsors are only distributing health plan brochures and pre-enrollment materials. Events may be conducted in one-on-one settings. Plan sponsors may also accept enrollment forms and perform enrollment at marketing/sales events. Chapter 3 Page 42

51 Okay or Not Okay? To help you understand specific marketing and education behaviors and to determine what is or is not okay, see Appendix C of this manual and Chapter 4 of the SMP Foundations Training Manual. Both outline some of the common acceptable and unacceptable practices that may be seen by beneficiaries. To review the current CMS Marketing Guidelines (100+ pages), visit Plans/ManagedCareMarketing/FinalPartCMarketingGuidelines.html. Suspected Part C and Part D Marketing Violations The CMS RO DOI liaisons handle complaints of suspected plan compliance and enforcement violations, including but not limited to Part C and Part D marketing violations such as: Part C and Part D marketing violations by agents, brokers, or plans Key Concept Appendix A shows a flow chart summarizing all types of referrals, including referrals of Part C and Part D marketing violations. Agents, brokers, or plans conducting business after they have been asked to cease and desist Misleading advertising. For example: o Materials that look like they are being sent from an official government source. o Materials that imply private fee-forservice plans function as Medicare supplement plans. Offering inducements to enroll Adverse selection (also known as cherry picking ) o Selecting or denying beneficiaries based on their illness profile or other discriminating factors, such as: Retaining only healthy members. Excluding beneficiaries with certain profiles. Chapter 3 Page 43

52 Enrollment complaints o Enrollment of beneficiaries in a plan without beneficiary consent. o Disenrolling (removing) a beneficiary from Original Medicare without her knowledge. o Falsely telling a beneficiary that his physician or hospital accepts the plan. o Misrepresentation of the plan s: Phishing scams Physician-to-patient ratio Physician qualifications Access to care Service area Providers available o Unsolicited s purporting to be a valid Part C or Part D plan or service. o These s often entice an individual to visit a fraudulent website and provide sensitive personal information. Marketing insurance products that do not exist Persistent Customer Service Issues Although customer service issues are not considered to be SMP complex interactions in and of themselves, if customer service issues persist and accumulate, they become compliance issues, which are the purview of the CMS Regional Offices. After the customer service channels have been tried and failed, the case becomes an SMP complex interaction. When plans are unresponsive to customer service complaints, make a referral to the CMS RO DOI liaisons. It s important to note that misrepresenting plan products or misleading beneficiaries about the benefits a plan offers is not considered a complaint of potential fraud, error, or abuse. However, CMS takes these allegations seriously and encourages program partners to report inappropriate marketing activities to their CMS RO Department of Insurance liaison. Chapter 3 Page 44

53 Referrals to the State Department of Insurance Because Medicare Part C and Part D are private insurance plans, they come under the jurisdiction of both CMS and the state insurance departments. Complaints may or may not be referred to both the CMS RO DOI liaison and the state Department of Insurance, depending upon the nature of the issue. To find your state Department of Insurance, use the interactive map on the National Association of Insurance Commissioners website: Complaints Against Agents and Brokers Though CMS RO DOI liaisons will also alert the state Department of Insurance to the issues brought to their attention by the SMP, SMPs may refer any complaints against agents or brokers to their state Department of Insurance concurrently with the referral to the CMS RO DOI liaisons. This will ensure that both entities will know about the issue and be able to respond to the referral as quickly as possible. Medigap Sales Key Concept Be sure to provide as much information as possible in the referral, including the agent s name and contact information. Though Medigap (Medicare Supplement) policies are sold by private companies, they are not a Part C or Part D product and are not handled under the SMP unique referral relationship with CMS RO DOI liaisons. The sale of Medigap policies is governed by state Department of Insurance restrictions, which may or may not be as strict as the federal regulations governing the sale of Part C or Part D plans. Below are two frequently asked questions about the sale of Medigap policies: 1. Can policies be sold door to door? Not Okay. Some states prohibit door-to-door sales of Medigap policies. Okay. In Texas, for example, agents can sell Medigap policies door-to-door. To determine whether or not a sales practice for a Medigap policy is allowable in your state, contact your state s Department of Insurance. As a reminder, to find your state Department of Insurance, use the interactive map on the National Association of Insurance Commissioners website: 2. Is it okay to try to sell Medigap policies to beneficiaries with Medicare Advantage Plans? Not Okay. If a beneficiary joins a Medicare Advantage Plan, it is illegal for anyone to attempt to sell that beneficiary a Medigap policy, with the exception below. Okay. If a beneficiary is switching back to Original Medicare, he or she can be sold a Medigap policy. Chapter 3 Page 45

54 Lead Generators (such as postcard solicitation) It is not unusual for SMPs to receive complaints from beneficiaries about suspicious mailings, often postcards, that turn out to be what are called lead generators. Lead generators are ways of developing contact lists for insurance solicitation and are commonly seen in connection with the sales of Medigap plans. Unless a Part C or Part D product is involved, CMS does not have any regulatory oversight of such materials. Some states do regulate lead generators, however. Check with your state Department of Insurance to determine whether or not a particular postcard or other lead-generating solicitation is illegal and should be referred to them. Government Look-Alike Mail Mailings should make it clear that they come from a private organization, not a government entity. If the lead-generating mail is designed to appear to have come from the government, refer it to the U.S. Postal Service. Have the consumer call your local post office for guidance, or Submit a complaint online: Ask the consumer to keep the mailing. He may be asked to send the suspicious mailing to the postal inspector, care of your local postmaster. Referrals to the MEDIC Another type of suspected fraud and abuse that SMPs do not refer to the OIG Hotline is fraud and abuse by Medicare Part C and Part D plan sponsors and benefit managers. Plan sponsors and benefit managers must abide by the same laws that apply to providers, whenever applicable. CMS utilizes the services of a contractor to assist with complaints of potential fraud and abuse in the Medicare Advantage and Prescription Drug programs. Although called the National Benefit Integrity (NBI) Medicare Drug Integrity Contractor (MEDIC), they investigate complaints of potential fraud and abuse for both Part C and Part D. Chapter 3 Page 46

55 Following are examples of suspected fraud or abuse by plan sponsors and benefit managers that should be referred to the MEDIC: Billing for services not rendered DME fraud False infusion centers False front pharmacies Billing for nonexistent or deceased beneficiaries Providers upcoding or charging more than allowed for services provided Falsifying information in order to justify coverage Provider kickbacks Inappropriate financial incentives paid to facilities or beneficiaries to obtain enrollments Financial incentives for steering a beneficiary toward a certain plan or drug or for formulary placement Referrals of Quality-of-Care Complaints Complaints alleging malpractice or poor quality of care may or may not involve a fraudulent situation. SMPs should refer these complaints to the following organizations, based upon the nature of the complaint. Keep in mind that the SMP program does not have a national referrals relationship with these organizations. Consequently, you cannot expect to be informed of the outcome of your referral. Quality Improvement Organizations (QIOs) The Quality Improvement Organization (QIO) Program under CMS focuses on helping providers deliver the right care at the right time. The program is also designed to ensure people with Medicare get the care they deserve, which ultimately improves care for everyone. QIOs also help Medicare beneficiaries exercise their right to high-quality health care. Patients benefit from the QIO Program s charge to address beneficiaries quality-of-care complaints and discharge appeals as well as from the QIO improvement initiatives those complaints and appeals inspire. There are two Beneficiary and Family Centered Care (BFCC)- QIOs that manage all beneficiary quality-of-care complaints in all 50 states and three territories. Chapter 3 Page 47

56 When Medicare beneficiaries have a complaint that is not related to the clinical quality of health care, they and their health care provider can agree to participate in a dialogue called immediate advocacy, which is guided by the BFCC-QIO. Being treated disrespectfully is one example of a complaint that can benefit from this advocacy. Another way BFCC-QIOs help is by reviewing a beneficiary s appeal of a hospital discharge decision or a provider s decision to discontinue services like rehabilitation therapy or home health care. State Licensing Boards Though it is not part of the SMP mission to educate beneficiaries to recognize potential provider malpractice, some complaints of suspected fraud, errors, or abuse will have a quality element. When provider malpractice or quality concerns are suspected, refer the case to the applicable state licensing board. The list below, though not exhaustive, covers common provider types and how to access the state licensing board: Chiropractors: State Chiropractic Board o The Federation of Chiropractic Licensing Boards (FCLB) has an online directory: Dentists: State Dental Board o The American Association of Dental Boards (AADB) has an online directory: Nurses: State Nursing Board o The National Council of State Boards of Nursing (NCSBN) has an online directory: Pharmacists: State Board of Pharmacy o The National Association of Boards of Pharmacy (NABP) has an online directory: Physicians: State Board of Medical Examiners Key Concept Complaints about inappropriate discharges from a hospital or facility? Complaints about providers discontinuing services too early? Complaints about ill treatment in a facility? Refer them to the Beneficiary and Family Centered Care Quality Improvement Organization (BFCC- QIO). For more information about BFCC-QIOs, including a link to the QIO Directory with contact information for each BFCC-QIO, go to and search for QIO. o The Federation of State Medical Boards (FSMB) has an online directory: Chapter 3 Page 48

57 State Long-Term Care Ombudsman Program Complaints about quality of care in long-term care facilities should be referred to long-term care ombudsmen, the advocates for residents of nursing homes, board and care homes, and assisted living facilities. Under the federal Older Americans Act, every state is required to have an Ombudsman Program that addresses complaints and advocates for improvements in the long-term care system. The Ombudsman Program is administered by the Administration for Community Living (ACL). ACL funds a National Long-Term Care Ombudsman Resource Center, which explains that a long-term care ombudsman addresses the following complaints: Violation of residents rights or dignity Physical, verbal, or mental abuse, deprivation of services necessary to maintain residents physical and mental health, or unreasonable confinement Poor quality of care, including inadequate personal hygiene and slow response to requests for assistance Improper transfer or discharge of patient Inappropriate use of chemical or physical restraints Any resident concern about quality of care or quality of life Key Concept To refer a case to the ombudsman, you must have client permission to share concerns on his or her behalf. To find the ombudsman in your state, visit the interactive map on the National Long-Term Care Ombudsman Resource Center website: Chapter 3 Page 49

58 Recommended Resources Publications Special Fraud Alert: Telemarketing by Durable Medical Equipment Suppliers (OIG): QIO Program Fact Sheet. Beneficiary and Family Centered Care Quality Improvement Organizations; A Better Way to Serve Medicare Beneficiaries: QIO_FactSheet.pdf A Roadmap for New Physicians; Avoiding Medicare and Medicaid Fraud and Abuse (OIG): Medicare Participating Physician or Supplier Agreement (CMS Publication 460): Forms/Downloads/CMS460.pdf Medicare & You handbook: or call Medicare to order a new copy each year SMP Foundations Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SMP Counselor Training Manual: Available in print from your SMP program or electronically from the SMP Resource Library at SIRS training resources: Available electronically from the SMP Resource Library at Online Resources CMS: o o o Find suppliers of medical equipment & supplies link at Note: Suppliers with a blue M logo next to their names are participating providers who accept assignment in all cases Chapter 3 Page 50

59 o CMS Managed Care Marketing: o CMS Medicare Marketing Guidelines: Plans/ManagedCareMarketing/FinalPartCMarketingGuidelines.html OIG: U.S. Postal Service Mail Fraud Complaint: National Association of Insurance Commissioners: National Association of Medicaid Fraud Control Units: National Long-Term Care Ombudsman Resource Center: Quality Improvement Organizations (QIO): > Search for QIO Directory SMP Resource Center: o SMP Foundations Training Online: Available at > Resources for SMPs > Training The Federation of Chiropractic Licensing Boards: The American Association of Dental Boards: The National Council of State Boards of Nursing: The National Association of Boards of Pharmacy: The Federation of State Medical Boards: Chapter 3 Page 51

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61 SMP Complex Interactions Training Manual CHAPTER 4: Case Studies: Applying What You Have Learned Case 1: Diabetes Supplies Billing Case 2: Hospital Billing for MRIs Case 3: Hospice Care Case 4: Power Wheelchair Case 5: Medicare Advantage Marketing Scenario A Scenario B Case 6: Part D Marketing Case 7: Prescription Drugs Case 8: Both Medicare and Medicaid Case 9: Compromised Medicare Numbers Case 10: Quality of Care Case 11: Medicare Coverage Complaint Closing Page 53

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63 Case Studies The case studies contained in this chapter will provide you with some concrete examples of how to apply the knowledge you have gained. The following case studies are edited examples of actual SMP cases, though the names in these scenarios are fictional. You will notice that many examples involve more than one type of insurance or problem both Medicare Part D and Medicaid, for example which you will find to be common in your work at the SMP. Please remember that all complex interactions should be entered into the SMP Information and Reporting System (SIRS) according to the SIRS complex interactions training instructions. Though data reporting system instruction is outside the scope of this manual, the absence of data entry instruction is not meant to imply that data entry isn t necessary. See the SMP Resource Library for SIRS training materials and webinars, which provide detailed instructions on entering a complex interaction and making a referral. Key Concept The Appendix A flow chart, which illustrates all categories of complaints and appropriate referrals outlined in this manual, will assist you with these case studies. Case 1: Diabetes Supplies Billing Scenario: A beneficiary named Tom contacts the SMP because XYZ Pharmacy billed him for the Part B deductible for his diabetes supplies even though his Medicare supplement policy (Medigap Plan F) would pay the deductible if the pharmacy submitted a claim for it. The pharmacy is an enrolled Part B provider but does not always accept assignment on claims. Tom called the pharmacy to explain that his Medicare supplement covers the deductible but the manager insisted that Tom still needed to pay them directly. He paid but went to a different pharmacy for his diabetes supplies the next time. The second pharmacy billed the Medigap insurer and did not charge Tom the deductible. He calls the SMP because he thinks XYZ Pharmacy is engaged in fraud and he wants to report it. This was the second complaint of the same type against that pharmacy received by the SMP in recent months. Chapter 4 Page 55

64 What is the Problem? There isn t a problem. Because XYZ Pharmacy did not accept assignment, it can bill Tom for the entire cost of the diabetes supplies at the point of sale, including the Part B deductible and coinsurance charges. As a Part B provider, XYZ Pharmacy must submit a claim to Medicare for Medicare s portion of the bill. With nonassigned claims such as this one, Medicare sends payment to the beneficiary for its share of the Medicare-approved amount. If XYZ Pharmacy bills him only for the deductible and charges too much, Medicare rules require it to refund as promptly as possible any money incorrectly collected from Medicare beneficiaries or from someone on their behalf. What is the SMP Response? The SMP can educate Tom about the important difference between participating providers who accept assignment in all cases and those who do not. As explained in the SMP Foundations Training Manual, Chapter 2, the limiting charge that applies to nonassigned claims for physician services does not cover unassigned durable medical equipment, prosthetics, or supplies claims. In this case, the disputed practice was related to diabetes supplies. As mentioned in Chapter 3 of this manual, use the Find suppliers of medical equipment & supplies link at and look for suppliers that have a blue M logo next to their names. This indicates that they are participating providers that accept assignment in all cases. Case 2: Hospital Billing For MRIs Scenario: A beneficiary named Gloria who is enrolled in Original Medicare reviews her MSN and calls the SMP to report high charges for a recent hospital stay. Also, there were two charges for MRIs and she only remembers having one MRI. She thinks the hospital might be trying to rip off Medicare. She has not yet talked to the hospital. What is the Problem? May Not Be a Problem: Complaints of excessive prices are a Medicare benefits issue rather than suspected fraud, errors, or abuse. (See the SMP Foundations Training Manual and the SMP Counselor Training Manual.) May Be a Problem: Billing for two MRIs could be a billing error on the part of the hospital, since it would be unusual for two MRIs to be performed during one hospital stay. Chapter 4 Page 56

65 What is the SMP Response? 1. To address Gloria s concerns that the overall hospital charges were too high, educate her about Medicare s method of paying inpatient hospital claims. You can send her to either the SHIP program (visit or Medicare for an explanation of Medicare coverage guidelines. o For example, Medicare benefits experts can explain that hospital inpatient claims are paid under the Diagnosis Related Group (DRG) system and charges on a hospital claim do not necessarily reflect what Medicare actually allows or pays. 2. To address Gloria s report that she only received one MRI, yet two MRIs were billed, recommend that she contact the hospital to discuss the potential double billing for her MRI. o Ask Gloria to follow up with you regarding their response. o If there was an error, request from her a copy of the original MSN and the corrected MSN for annual outcomes reporting to the OIG. 3. Offer to contact the hospital billing department if Gloria is unable or unwilling to make the contact herself. Take the following steps: o Contact the hospital on Gloria s behalf. If they request a release of information before speaking with you about Gloria s information, follow up with Gloria to have her sign one. o Clarify whether or not only one MRI was performed. If only MRI was performed, ask them to remove the duplicate MRI charge. o Follow up with Gloria to explain the results of your work and arrange for her to provide you with a copy of her corrected MSN. Case 3: Hospice Care Scenario: NOTE: As long as the hospital billing department is cooperative, this case remains in the category of suspected error. If the hospital will not address Gloria s concerns about double billing, escalate this case to suspected fraud or abuse. (See Chapter 3.) A nurse for a skilled nursing facility calls the SMP to report hospice care fraud by her employer. She knows that the facility director altered patient records to falsely indicate they needed a hospice level of care in order to obtain higher reimbursement from Medicare. The nurse does not want her employer to know about her report to the SMP but is willing to be identified to investigators. Chapter 4 Page 57

66 What is the Problem? This situation reflects multiple violations of the law, both under the False Claims Act and the Civil Monetary Penalties Law, including: altering patient records to achieve higher payment, incorrect reporting of diagnoses, and submitting claims the provider knows to be fraudulent. What is the SMP Response? This is a clear-cut case of an immediate referral to the OIG Hotline via ACL. You should not contact the provider due to the egregious nature of the case. 1. Explain your SMP role to the nurse: o SMPs make referrals of suspected fraud but are unable to provide any information on the status of the case until it has been resolved. o Referred cases, particularly egregious ones, can take years to resolve. 2. Inform the nurse about the SMP referrals process and that she may be contacted by an investigator as a result of your referral. o Tell her also that investigators will not inform you the SMP about progress on her case, though she may be contacted directly by the investigators. SMPs are only informed by investigators of case status after cases are fully resolved. o The nurse was willing to be identified to investigators. If she wished to remain anonymous, you would submit an anonymous referral. Anonymous referrals do not carry the same weight with investigators, however, so it is fortunate that she is willing to give her name. Case 4: Power Wheelchair Scenario: A beneficiary in Original Medicare named Kim was prescribed a power wheelchair. The durable medical equipment (DME) supplier took measurements and ordered the wheelchair. When it arrived, Kim found that it did not fit her and she was unable to use it. Either the measurements were taken incorrectly or the chair was not ordered according to the measurements. Kim called the DME supplier to complain and request help but was forced to leave repeated messages, which went unreturned. She calls the SMP. Kim does not have a copy of her MSN yet and is not signed up with so she is unable to review her claims in real time. Incidentally, the SMP recognizes the name of the DME supplier, since other complaints about this same provider had been made in recent months. Chapter 4 Page 58

67 What is the Problem? The supplier neglected to respond to Kim s complaint directly. Medicare has been billed for her power wheelchair, which does not meet her needs. Not only does unusable equipment waste Medicare dollars, Kim now has a power wheelchair that she cannot use. Because Kim has not used her power wheelchair continuously for five years (see the SMP Foundations Training Manual, Chapter 4), she cannot go to a different supplier for an appropriate power wheelchair without paying out of pocket. In addition: The DME supplier is not addressing the problem directly with the beneficiary, which is its obligation. DME suppliers must ensure a proper fit the first time. The other complaints the SMP has received against this provider raise suspicions. What is the SMP Response? 1. Use your SMP Unique ID with Medicare to research whether the supplier has already billed Medicare for the power wheelchair. 2. Contact the DME supplier on Kim s behalf and ask if it will remedy the situation. o Though Kim said she had tried and failed to work with the provider, this step gives the provider the benefit of the doubt and allows you to double check the information Kim provided to you. o If the supplier responds with a willingness to remedy the situation, request a timeline. 3. If the DME supplier is unresponsive, escalate the issue as a case of suspected fraud or abuse and refer it to the OIG Hotline via ACL. In this example, a pattern of error is emerging with this particular provider due to the other complaints your SMP has received. 4. Request instruction from CMS about how to remedy Kim s medical need for a power wheelchair during the investigative process. Your SMP Unique ID with Medicare is one CMS resource available to you for this purpose. Chapter 4 Page 59

68 5. Follow up with Kim. o Explain any guidance you received about how to remedy her need for a power wheelchair. o If the provider remained unresponsive through this process, suggest she consider filing a complaint with the Better Business Bureau. o Check in with Kim periodically until her need for a properly fitting wheelchair has been met. Case 5: Medicare Advantage Marketing Scenario A: An anonymous senior housing coordinator contacts the SMP to report that residents at a senior apartment complex were visited by Medicare Advantage Plan insurance agents. The senior housing residents had not requested these visits but let the agents into their apartments because the agents said they had been sent by the doctor who sees most of the residents in the housing complex. The agents enrolled the residents in a Medicare Advantage Plan and also attempted to sell life insurance. The agents knew a great deal about the residents, including their Medicare numbers and health conditions. The anonymous complainant knows the name and address of the residents doctor and the Medicare Advantage Plan being marketed. What is the Problem? There are multiple violations represented in this scenario: It appears that the doctor colluded with the plan to violate CMS marketing guidelines, also violating patient confidentiality. Possible kickbacks from the plan to the provider can be suspected. The Medicare Advantage Plan agents violated multiple aspects of the CMS marketing guidelines. Residents were steered toward and enrolled in a plan that may not meet their needs. Chapter 4 Page 60

69 What is the SMP Response? 1. Explain your SMP role to the senior housing coordinator: o SMPs make the referrals but are unable to provide any information on the status of the case until it has been resolved. o Referred cases, particularly egregious ones, can take years to resolve. 2. Inform the senior housing coordinator of the SMP referrals process. Offer to help inform residents in the building about the SMP program, being respectful of her desire to be discreet about the incidences of fraud and also remain an anonymous complainant. 3. Make a referral to the OIG Hotline via ACL for suspected kickbacks and collusion on the part of the doctor. 4. Make a referral to your CMS RO DOI liaison for the plan marketing violations. 5. Make a referral to the state department of insurance due to the egregious agent behavior. Scenario B: Maria, a resident from the same senior apartment complex involved in Scenario A, contacts the SMP and reports that she was pressured by her doctor into leaving Original Medicare and enrolling in a particular Medicare Advantage Plan. The SMP recognizes the name of the plan as the same plan involved in Scenario A. After enrolling, Maria quickly discovered that the plan didn t meet her needs. She said the doctor had invited the plan representatives into his office, where patients were told they needed to enroll in the Medicare Advantage Plan because it was better. Maria realized, in retrospect, that the situation didn t feel right and decided to call the SMP. What is the Problem? Scenario B contains the same problems as those outlined under Scenario A. In addition, Maria can verify that the plan she was pressured into enrolling in does not meet her needs. Chapter 4 Page 61

70 What is the SMP Response? 1. Explain your SMP role to the beneficiary: o SMPs make the referrals but are unable to provide any information on the status of the case until it has been resolved. o Referred cases, particularly egregious ones, can take years to resolve. 2. Inform the resident about the SMP referrals process and that she may be contacted by an investigator as a result of your referral. 3. Explain that after you refer her case to a CMS representative, CMS will contact her to help her return to Original Medicare. 4. Conduct a referral to the OIG Hotline via ACL for suspected kickbacks and collusion, explaining that the incident happened at the same senior housing residence involving the same doctor as your other case (Scenario A, above). It is important to point out the links between related cases in your case notes, including the associated case numbers. 5. Make a referral to the CMS RO DOI liaison due to the marketing violations and the senior housing resident s need for help with the inappropriate disenrollment from Original Medicare. 6. Though the provider s violation of confidentiality in this case could warrant quality complaints, the egregious nature of this issue dictates that you should leave it in the hands of investigators rather than conducting further referrals to quality improvement organizations or state certification boards unless you are told otherwise by ACL when you make your referral. You do not want to compromise an investigation. Case 6: Part D Marketing Scenario: A beneficiary named Carmela was called by an ABC Health Care insurance sales agent who informed her that he was working with low income people to help them get some new benefits they are entitled to, called Extra Help. Carmela told the agent she was not interested. However, the next day the agent showed up at her door. He said he was from Medicare, so Carmela let him in. After talking awhile, the agent handed her an ABC Health Care folder. The agent told her that not only would his plan cover her prescriptions, but her doctor was also part of the ABC Health Care provider network. She told him that she still didn't want to change plans because she didn t want to risk having to change doctors. She was interested in the Extra Help program he described, however. Chapter 4 Page 62

71 A week later, Carmela went to her pharmacy to pick up her prescription drugs and found that she had been switched to a different plan. The prescriptions she was on were not covered under the new plan. She tried to contact the ABC Health Care sales agent who had visited her but the telephone number he provided was out of service. She then contacted the SMP program, having received the SMP brochure at a senior center presentation. She told the SMP that she never agreed to enroll in ABC Health Care. She thought she was only signing up for Extra Help. What is the Problem? Insurance agents cannot represent themselves as being from Medicare. Insurance plans cannot make unsolicited telephone calls to beneficiaries with whom they have no prior relationship. Insurance plans cannot solicit door to door and cannot visit a beneficiary in the home without an approved scope of sale. Extra Help applications are handled through the Social Security Administration, not insurance sales agents. (See Chapter 2 of the SMP Foundations Training Manual.) The insurance agent s misrepresentations resulted in possible medical identity theft (he obtained her Medicare number) and in her disenrollment from the plan of her choice. Carmela s health and financial well-being were negatively impacted due to the loss of coverage for her prescriptions and subsequent out-of-pocket expenses. What is the SMP Response? 1. Explain your SMP role to the beneficiary: o SMPs make referrals of suspected fraud but are unable to provide any information on the status of the case until it has been resolved. o Referred cases, particularly egregious ones, can take years to resolve. 2. Inform Carmela about the SMP referrals process and that she may or may not be contacted by an investigator. 3. Explain that the CMS RO DOI liaison will help her return to the plan of her choice. Chapter 4 Page 63

72 4. Explain to Carmela that she can work with her pharmacist to arrange temporary coverage for prescriptions while her enrollment request is being processed by a CMS representative. o Educate Carmela about the other appropriate consumer protection and public benefits organizations that can help her, offering assistance in working with them if needed: Inform Carmela that she should contact the Social Security Administration to complete a legitimate Extra Help application or that her state SHIP program can also help (at Inform Carmela of the role of the Better Business Bureau and the procedures for filing a complaint, if she wishes to do so. 5. Refer this case to the CMS RO DOI liaison due to the marketing violations, inappropriate disenrollment from her plan, and enrollment in another plan against her wishes. 6. Make a referral to the state department of insurance due to the egregious agent behavior. 7. Check back with either Carmela or the CMS RO DOI liaison within two weeks to ensure Carmela is re-enrolled in her original Part C and Part D plan. Case 7: Prescription Drugs Scenario: A beneficiary named Jose calls the SMP to complain that for the third time this year his pharmacy dispensed fewer pills than he was supposed to receive. Each time, he complained to the pharmacy and they corrected the problem. Still, he finds it suspicious that the problem keeps occurring. What is the Problem? It is impossible for the SMP to know whether the pharmacy is knowingly or intentionally shorting their customers on pills. In Jose s case, if he did not count his pills, find the error, and ask the pharmacy to correct the error, the pharmacy s practices would have resulted in payment for services that do not meet professional standards. With this happening to Jose three times, there is a pattern and Jose s efforts to stop the pattern have had no effect. Chapter 4 Page 64

73 What is the SMP Response? 1. Explain your SMP role to the beneficiary: o SMPs make referrals of suspected fraud but are unable to provide any information on the status of the case until it has been resolved. o Referred cases, particularly egregious ones, can take years to resolve. 2. Tell Jose that you will refer his case to the OIG Hotline, which also works with CMS. Ask him to contact you if the pill shorting happens again. 3. Make a referral to the OIG Hotline via ACL for suspected prescription drug fraud or abuse. Case 8: Both Medicare and Medicaid Scenario: David, a Medicare beneficiary dually enrolled in Medicaid, contacts the SMP because he received a notice from a collection agency to pay more than $5,000 to the hospital that treated him for a serious illness two years ago. This was the first time anyone contacted him about a bill. He was surprised to be billed for the charges not covered by Medicare because Medicaid was supposed to cover them. In addition to the notice from the collection agency, the hospital sent him a letter saying they were going to sue him. David was distraught and overwhelmed. What is the Problem? Because of his dual enrollment in Medicare and Medicaid, David was not responsible for the $5,000 charges. The hospital was in error for trying to obtain payment from him. David should not have been sent to collections for a bill that was not his responsibility. There seems to have been a breakdown in the payment process between the hospital and the state Medicaid office. What is the SMP Response? 1. Determine whether or not the beneficiary can take action on his or her own behalf. In this example, David is overwhelmed and asked the SMP intervene. He has already made many calls and doesn t feel like anyone is listening to him. Chapter 4 Page 65

74 2. Gather information. Begin with the Medicaid office to verify that David was covered by Medicaid at the time of service. If so, determine why Medicaid did not pay for the charges Medicare didn t cover. o In this example, the Medicaid case worker said the hospital never completed and returned the paperwork required by Medicaid to reimburse the hospital. o Ask the case worker for information about who at the hospital should be contacted to complete the appropriate steps. 3. Contact the hospital and request that they remedy the situation. Provide them with the information you received from the Medicaid office. Remedies from the hospital should include: o Submitting a proper claim to Medicaid o Canceling the involvement of a collection agency o Sending David a letter removing the threat to sue 4. Follow up with David to inform him of your progress. Ask him to contact you when the problem has been resolved so that you can close the case. Request copies of the revised letters and bills that he receives so that you can document cost avoidance for the OIG Report. Contact him if he does not contact you to ensure that the problem gets resolved. 5. If the hospital neglects to complete the needed paperwork and remedy the situation, make a referral of suspected Medicaid abuse to the OIG Hotline via ACL and the state Medicaid Fraud Control Unit. Case 9: Compromised Medicare Numbers Scenario: Your SMP receives a complaint from Harriet, who was called by a man from Medicare who asked for her Medicare number in order to issue a new Medicare card. The caller threatened her with a loss of Medicare benefits if she didn t comply. Fearing such a loss, Harriet gave her Medicare number to the caller. Later, she realized this may have been a mistake and called the SMP. What is the Problem? Medicare will not call beneficiaries to offer a new card. Medicare beneficiaries receive a Medicare card upon enrollment and lost cards can be replaced through the Social Security Administration, not Medicare. Chapter 4 Page 66

75 NOTE: As you learned in SMP Foundations, Medicare contractors may contact a small percentage of beneficiaries to conduct a Medicare Current Beneficiary Survey. Beneficiaries selected for surveys receive letters in advance, however. Medicare Advantage Plans can also call their existing members to discuss their benefits. Harriet was the victim of a common consumer scam targeting Medicare beneficiaries. Because she gave out her Medicare number, it is now compromised and she is at risk for medical identity theft. See the SMP Foundations Training Manual, Chapter 4, for more information about this scam. What is the SMP Response? 1. Tell Harriet that her Medicare number has been compromised and that you will report it to the Office of Inspector General (OIG), who will also alert Medicare. 2. Tell Harriet that she should scrutinize her future MSNs or EOBs for services she did not receive and providers she doesn t know, since she may be a victim of medical identity theft. Tell her to contact the SMP again if she receives more suspicious calls or notices suspicious activity on her MSNs or EOBs. 3. Because Medicare numbers contain Social Security numbers, tell her that she also may become a victim of financial identity theft. Explain how the Federal Trade Commission (FTC) can help. o The FTC does not resolve individual complaints but filing a complaint with the FTC alerts criminal and civil law enforcement nationwide. o The FTC has information on its website for identity theft victims: 4. Report the scam to your local and state consumer protection authorities, including: o Local law enforcement o Your state attorney general s office 5. Work with the team members at your SMP who conduct public education so that Medicare beneficiaries and caregivers in your state can be warned. Chapter 4 Page 67

76 Case 10: Quality of Care Scenario: A caregiver named Joe calls with concerns about his father, who had received Medicare-covered home health services after a surgery. His father s doctor will not recertify those services to continue. Joe said that his father is unsafe in his home without the continuation of home health services and disagrees with the doctor s decision. Joe feels his father still needs skilled nursing and home health aide services, in particular, due to his poorly healing wound and his inability to manage it adequately on his own. Joe said his mother had received home health services much longer after a serious surgery and he thinks it is unfair that his father is not receiving an equal quality of care. What is the Problem? Suspected poor quality of care. Need for recertification of skilled nursing and home health aide services. (See the SMP Foundations Training Manual, Chapter 4.) What is the SMP Response? 1. Explain the SMP role and that the problem seems to be poor quality of care, which is handled by Medicare s Beneficiary and Family Centered Care Quality Improvement Organization (BFCC-QIO). 2. Tell Joe that you will refer his complaint to the BFCC-QIO on his behalf but that you may not be able to learn the outcome, as BFCC-QIOs are not obligated to follow up with SMPs. (See Chapter 3 of this manual for more information about referrals to the BFCC-QIO.) 3. Give Joe the BFCC-QIO contact information so that he can follow up with them directly for updates on his case. 4. Suggest other appropriate avenues for this caregiver to pursue in order to remedy the situation: o Contact the prescribing physician and ask him to reconsider his decision. o Seek a second opinion from another doctor. Chapter 4 Page 68

77 Case 11: Medicare Coverage Complaint Scenario: A beneficiary named Edward calls the SMP in June, upset because his doctor of 18 years chose to no longer be a covered provider under his particular Medicare Advantage Plan. He has multiple complicated health problems and doesn t believe another doctor could possibly understand him. He can t afford to pay out of pocket for his expensive care. He read that the SMP program addresses Medicare fraud. He thinks being forced to find another doctor who participates in his plan is fraud. What is the Problem? Client dissatisfaction with his Medicare coverage What is the SMP Response? 1. Listen empathetically to his complaint. o Refer to the SMP Counselor Training Manual for tips on effective counseling skills. 2. Explain that this is a Medicare coverage issue outside the scope of the SMP program rather than suspected fraud. Explain that there are other resources to help him find a covered provider and educate him about when he can change his Medicare coverage and leave his current plan, if desired. o Suggest that he contact his Medicare Advantage Plan to receive a list of covered physicians. o Suggest he talk with his doctor about his concerns and to find out what coverage his doctor does accept. o Provide him with the state SHIP contact information to receive Medicare coverage guidance. (See o Remind him of the services of Medicare. 3. This complaint does not involve suspected Medicare fraud, errors, or abuse and is not an SMP complex interaction. Enter this conversation in SIRS as a basic interaction. NOTE: For more information about the difference between complex interactions and other types of questions received by SMPs, see Appendix A of the SMP Counselor Training Manual. Chapter 4 Page 69

78 Closing Strategies used by unscrupulous individuals involved in health care fraud are vast and ever-changing. It is impossible to outline every kind of scenario you may encounter in your work at the SMP. Because the methods used to prevent, detect, and report fraud, errors, and abuse evolve over time, this manual will be updated periodically. In addition to the training provided in this manual, the SMP Resource Center periodically offers additional complex interactions training through webinars, newsletter articles, and online at Chapter 4 Page 70

79 SMP Complex Interactions Training Manual Appendices Appendix A: SMP Referrals Flow Chart Appendix B: SMP Unique ID User Guide Appendix C: Can They Do That? Medicare Part C and Part D Plan Marketing Rules Page 71