In this episode of AHLA's monthly series on fraud and abuse issues, Matthew Wetzel, Partner, Goodwin Procter, speaks to Greg Russo, Managing Director, Berkeley Research Group, about HRSA-paid COVID claims and some of the potential fraud and compliance risks that providers might face as the public health emergency continues and eventually comes to an end. They discuss HRSA’s guidance for providers, provider concerns over coding, and longer-term consequences beyond the public health emergency. From AHLA's Fraud and Abuse Practice Group. Sponsored by BRG.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
In this episode of AHLA's monthly series on fraud and abuse issues, Matthew Wetzel, Partner, Goodwin Procter, speaks to Greg Russo, Managing Director, Berkeley Research Group, about HRSA-paid COVID claims and some of the potential fraud and compliance risks that providers might face as the public health emergency continues and eventually comes to an end. They discuss HRSA’s guidance for providers, provider concerns over coding, and longer-term consequences beyond the public health emergency. From AHLA's Fraud and Abuse Practice Group. Sponsored by BRG.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
The following message and support for a H a is provided by Berkeley research group, a global consulting firm that helps organizations advance in the areas of disputes and investigations, corporate finance, and strategy and operations BRG helps clients stay ahead of what's next for more information, visit think brg.com.
Speaker 2:Good morning. Good evening, wherever you may be and welcome to the American health law associations fraud abuse podcast. I'm your host, Matt Wetzel as the COVID 19 pandemic appears to be winding down in the end of the public health emergency. And of course, all of its related government waivers may draw to a co a close this year. We continue to assess and analyze the long term consequences of the last two years. One area that will linger or for several years to come as the government's treatment of paying for COVID care for the uninsured changes to the government's reimbursement approach. Over the last two years may have the unintended consequence of increasing providers, fraud and abuse risks, and may certainly require a continued examination of provider controls around billing implemented during the public health emergency. Joining me today to discuss these issues is Greg Russo managing director of the Berkeley research group based in Washington, DC, Greg provides strategic advice to healthcare organizations and he helps his clients understand the healthcare regulatory environment based in part on his ability to leverage large data sets that offer you unique insights to clients, including with respect to damage calculations, government investigations, internal investigations, and of course our topic for today, provider reimbursement, Greg welcome Greg. We had a chance to connect last week and talk a little bit about some of the ongoing issues associated with the COVID 19 public health and urgency. And you raised one important dynamic, which has to do with uninsured claims and HRSA's goal of covering those claims. And I wonder if you'd be willing to walk through some of the issues that you raised, including HRSA's guidance for providers and its willingness to cover those insured claims throughout the public health emergency.
Speaker 3:Sure. I'd be happy to in the early days of the pandemic, the legislation that was passed, created, uh, an interesting program that HRSA now, uh, administers that program was funded through of few different, uh, bipartisan bills. It came from the family's first coronavirus response act, as well as the cares act. And what that program entails is it entails the reimbursement for providers of care that is related to those with COVID 19 and are uninsured at the time of care. Now that care relates to testing treatment and vaccine administration, the program, um, has been in operations since, uh, March of 2020, and it has provided a significant amount of funds to providers throughout the country over 18 billion to dollars thus far have been, um, provided to providers, uh, from all different geographic regions and many different types of providers. There are some lab companies in there. There are some hospital systems. There are, um, there are some COVID testing providers as well that are in there.
Speaker 2:And Greg, so, um, talk to me a little bit about these uninsured claims. So prior to the public health emergency, how would these be covered and, and paid for if, if at all
Speaker 3:Right prior to the, to the creation of the program, the uninsured claims would be uninsured. There, there wouldn't be any reimbursement for them and the federal government. And, uh, regulators recognize that in the face of a pandemic, as widespread as COVID 19 providers would have a number of disincentives to provide care to those who are uninsured. Typically those who are uninsured are just looked at as, um, the responsibility of the hospital. There are some programs in certain states to cover uninsured care, but, uh, but generally it's just, um, assumed that the, that the providers will render care to those individuals. However, with the pandemic, um, starting in March of 2020 regulators recognized that there needed to be a, um, de different avenue to ensure that providers continue to offer services to uninsured and continue to provide really high level quality care because we wanted COVID 19 to spread as little as possible, and that required the highest level of care to be delivered to individuals, even if they were on. Sure.
Speaker 2:Presumably you could look at this as a program to incentivize providers to treat, uh, the uninsured, as opposed to treating the uninsured as if they are, you know, bad debt or uncollectable debt or uncollectable payments. This gives an incentive to providers to, to, you know, really focus on, on their, their needs, especially as it relates to COVID
Speaker 3:That's right. And for the most part versus reimbursement rates are, uh, at the Medicare we reimbursement rates. So, uh, generally good. Now I know that there are a lot of providers that would say the Medicare reimbursement rates aren't good, but if you consider that before the pandemic, these claims weren't getting paid at all. So to get reimbursement at the Medicare reimbursement rate is, um, a significant difference from a payment of now, there are certain, um, caveats to the program and in certain requirements that a provider has to, um, has to deal with and as with many different government programs, right, that the details are really where it, uh, where it gets interesting and where it gets difficult for providers. And, um, it's no different with this program. What I think is incredibly interesting about this program is that it is set up to pay for COVID 19 testing treatment and vaccinate. And it defines that as an individual who has a primary diagnosis code of COVID 19. Now there are a few exceptions, but by and large, it's a person who has a primary diagnosis code of COVID 19. That is something that at face value seems very easy, but those of us who work in the healthcare marketplace know that the, the nuances of coding are much more, um, are just much more difficult and challenging and create a lot of questions when, uh, the program is created in such a way that the reimbursement for claims requires a primary COVID diagnosis.
Speaker 2:Interesting. So in other words, we've got a program here that's been set up to incentivize providers who ordinarily might not test or treat or vaccinate, um, an, a uninsured patient for any other illness. Uh, however, under this program, there are funds that are available to the extent that the primary diagnosis is COVID, but of course, we know that those coding issues can be quite complex. And what are some of those coding concerns that providers have expressed, or that you've noted, uh, in your own work with, with, uh, with clients?
Speaker 3:Sure. Uh, and I will, uh, we'll get into that in just a moment. I do wanna make sure we understand that I am in no way shape or form indicating that providers weren't treating uninsured patients and weren't doing a, um, weren't delivering high quality care before the pandemic. But what this program did, was it ensured that the providers would have that incentive to provide complex, complete, robust care to uninsured patients. Now, the coding challenges that, um, that providers have, uh, are, are numerous, we all in healthcare have, um, heard the stories of, um, of, of coding challenges over the years. And, um, it is absolutely no different with this, with this program in this situation, except for the how rapidly coding changed with the advent of the pandemic. There was the creation of diagnosis codes in, um, an amount of time that we, we had not seen before. And, and that then caused issues as the coding professionals and providers were, were forced to rapidly shift the manner in which the a COVID things, some of the challenges with this program relate to COVID having to be a primary diagnosis. So if an individual presents at an emergency room with a broken arm and they happen to get a COVID test while they're there, and our COVID positive, it's pretty easy to say that that patient showed up at the emergency room because of the broken arm. And therefore the primary diagnosis code is a broken arm. Secondary diagnosis code would be COVID. And that's a claim that wouldn't be reimbursable in this program because COVID would not be primary. However, there begins to get there begins to become gray areas. What if someone shows up with a cardiac issue and a cardiac issue that may have, uh, related to the COVID 19 that the patient has. And so a patient has, has the cardiac issue and has COVID 19, which of those is primary. And if the cardiac issue is primary, then this claim is not reimbursable under the HRSA program. It gets even more challenging when we look at the interaction between sepsis and COVID 19, I'm not a clinician, but there is a lot of clinical literature out there that suggests COVID causes viral sepsis. However, the coding documentation and coding guidelines indicate that when sepsis is present, sepsis is the primary diagnosis of a patient. And so what are providers to do when they have a patient who has COVID 19, they've tested for it, it is a positive result. There is no, no, no doubt that the patient has COVID 19. The patient also has sepsis. The sepsis then becomes primary. However, the clinicians may know that the only reason their having to treat sexist is because the patient is COVID positive in terms of the hears up program. If you read the rules of it, it does not appear that that claim would be reimbursable
Speaker 2:UN unless COVID were listed as primary.
Speaker 3:That is correct. Yes. Unless COVID, that were listed as primary and for a provider to have coded that claim with COVID as the primary diagnosis, then they would not be following the coding guidelines.
Speaker 2:So just to kind of recap, it sounds as if HRSA has set up a program, admirable and intent to cover these uninsured claims, but they've set up a little bit of a potential dilemma for providers, um, who are trying to decide how to code these claims. For example, you noted the broken arm versus COVID in that instance, uh, you know, there might be an incentive for a provider to, uh, mark COVID as the primary, as opposed to the broken arm and the chicken versus egg, uh, example you, uh, cite with sepsis, same situation. And even with the cardiac situation where, you know, there might be some relation or connection to the underlying illness or, or, or disease, and that there is this incentive to have COVID listed as the primary. So that for example, an uninsured claim that might have gone unpaid prior to COVID might now be paid for one of these providers.
Speaker 3:That's right. Yeah. There are definitely incentives to COVID as primary. There are also incentives to code suspected COVID because the HRSA program recognizes that not everyone is going to have a COVID diagnosis because the provider is unable to confirm that during the, is it, and HERSA also accepts and pays claims where it is suspected COVID as the primary diagnosis. Now that also creates, um, incentives for providers, uh, and whether they're, um, operating rightly or wrongly, there is still that incentive there to code patients as suspected COVID. Now there are questions, uh, with respect to the program for those patients who have been coded as suspected COVID does the program reimburse for a claim where it is suspected COVID, but no diagnosis testing has been completed. I, uh, I think that the, the official judgment of HRSA is, is unclear. We don't know what that will be. My interpretation is that HRSA would and should not pay for those claims. If, if an organization is not doing a diagnostic test to identify whether a P patient has COVID, then how can there be suspected COVID with a caveat though, which is to say that if there are claims that a provider has from early 20, 20, so March, April, 2020, if there is suspected COVID with no testing, does the provider have a good argument to HRSA to say that they weren't in a position to test yet? They still suspected COVID. And again, I, I don't know what HRSA would, would do or, or say about that. Um, but we might get some clarity over the next few months as the office of the inspector general is currently in the midst of audit and evaluating this program. And the claims that have been submitted to this program, we anticipate that they'll be publishing a report. And in that report offering hopefully some priority as to the claims that have been either correctly or incorrectly submitted.
Speaker 2:Greg, you mentioned, um, following the coding guidance. And I wonder if you could talk a little bit about that sort of, you know, I think one of the, one of the themes we're hearing today is, uh, dilemma, right? There's a provider's dilemma in some of these, um, you know, details associated with her's program and you, you mentioned coding guide guidance. What are providers supposed to do? What is the guidance they're supposed to follow and how has that changed or shifted throughout the public health emergency?
Speaker 3:So the, uh, coding guidance is what providers should be following in all, in all situations. And there was specific code coding guidance that was published with respect to the, uh, public health emergency and to the creation of the COVID 19 diagnosis codes. And that coding guidance is what providers should be following. I, it is my opinion that that should be driving the day. The coding guidance should be driving the day and not the interest in getting reimbursement from the HRSA program.
Speaker 2:Got it. You mentioned the O I report, what are we thinking in terms of timing? When do we think we'll anticipate hearing something from OIG on the program?
Speaker 3:Well, I haven't heard from anyone at the OIG as to when, uh, they anticipate that it will, uh, that their report will be published. Uh, I think based on, um, having read lots of OIG reports and seen when the studies have started and completed, that we should expect to see something later this year, hopefully fall timeframe. But I think before the close of the year, we'll get, uh, something from them. Now there's a lot of money here that's been out. I said over 18 million that relates to claims that have been paid for testing treatment and vaccines, but those 18 billion don't split evenly amongst those three, there's been a little more than 11 million paid for testing, almost six for treatment and under two for vaccine administration. So I think there's going to be a considerable interest in the payment for testing services. And when you look at how those payments have, uh, been made or the, the, the ma the, um, amount in which they've been made, there are a handful of providers that have gotten very large amounts of money from this program. And I think that the OIG is going to, um, have some specific interest in those providers, whether it's in the course of doing their review or shortly after doing their review, should they find that anything in the program causes, uh, larger concern?
Speaker 2:So we are, you know, we've been talking today about the increase in funds from HRSA. We've been of talking about some potential incentives for what I might consider bad behavior on the coding front, uh, as well as the potential for increased scrutiny, especially when it comes to testing, uh, on the back end here, as we approach the close of the public health emergency, or the expected close of the public health emergency, I should say, uh, at some point in 2022, why does this still matter? I mean, why should providers continue to focus on the HRSA program, uh, for COVID and what could some of the longer term consequences or downstream impacts be?
Speaker 3:Well, first, I think the providers should still be concerned about this because I, I have been unable to find any information as to when the program will officially end, other than there has been, there has been an amount of money that has been allocated, and therefore I interpret that once that amount of money is exhausted, then the program will end. So I think that there I, there is the ability providers have the ability to continue submitting claims and continuing to get reimbursement. Second, I think providers, uh, should be concerned because of the OIG report and potential auditing that could take place in the future. So ensuring that what they have done has been proactively audited and, um, they've, they, the providers have ensured that their approach is correct and accurate and defensible. Then I think that the, um, the, the next concern that providers have is what should be the going forward question that providers have with respect to this program and coding guidance. And I think that pro I think that what this program has highlighted is the connections that providers need to ensure that they have in their organization between coding professionals, compliance professionals and the legal team, the questions that are raised by this program, I don't think are questions that the com the coding team should be answering in and of their, their own accord. I think that this should be something that the coding team should be getting guidance from the compliance team and the internal, uh, legal team, because there is, as I've described some gray area here. And I think that there may be some risks that an organization takes. And if that's the case, you need that internal legal team present to understand what those risks are and to make a calculated decision. And you need the compliance staff, uh, also to, um, to, to weigh in on that. And for those reasons, I think that it's imperative that providers ensure they have the connections built between those three teams within their organization.
Speaker 2:In other words, compliance controls are key here.
Speaker 3:Yes, that is correct.
Speaker 2:Well, Greg, this has been a really interesting, uh, dive into a program that, of course, as we noted has only the best intentions, but potentially some downstream consequences that were unintended. What are some final thoughts or final points you wanna relay about the HRSA program, Greg, and, and where should we be focused moving forward?
Speaker 3:Well, I, I, I absolutely agree with the way that you've characterized the program th this program had, um, exceptional intense. Um, I think that it, um, it was a very good thing for providers and a very good thing for patients. And because of that, I am, um, uh, very happy that providers have been able to take advantage of these additional funds. As we have seen many to times in healthcare, there are often bad actors and, um, it's taking, going forward. We need to take the over 18 million, 18 billion that have been paid out on this program thus far, and, uh, figure out where the bad actors are and organizations, I think, need to be sure that their organization was not a bad actor, um, and be proactive in, uh, in, in doing those checks and ensuring that they've got the, the answers as to how they've operated before anyone comes knocking
Speaker 2:Well. So, uh, while Greg, uh, really appreciate those insights and especially the focus on, you know, sort of the long term thinking that providers should approach this program with just, you know, I think there might be some assumption out there that, well, you know, it's, COVID 19, the public health emergency is on its way to a close once this is done, we don't have to worry about these issues anymore, but I think based on what you're saying, Greg, it sounds like that's really not the case and that, um, these are longer term concerns that, uh, that providers should be mindful of the practices, procedures, and policies that they're applying when it come comes to, especially these gray cases, uh, of COVID that you describe. And then of course, the long term threat of government enforcement, uh, when it comes to the fraud and abuse laws, especially as it takes an, a greater interest in the increased, uh, you know, uh, uh, uh, availability of, of funding from, from the government for COVID treatment.
Speaker 3:Definitely agree.
Speaker 2:Well, Greg Russo, managing director of the Berkeley research group. Thank you so much for joining us today. We have been so, uh, happy to have you here and to hear your thoughts and opinions on this important program. Thank you.
Speaker 3:Thank you very much, Matt,
Speaker 2:And thanks very much to you as well. Our listeners, please stay tuned for another addition of our ALA fraud abuse podcast next month. I'm your host, Matt Wetzel. Thanks so much.
Speaker 4:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a L a speaking of health law, wherever you get your podcasts to learn more about a a, and the educational resources available to the health law community, visit American health law.org.