(January 18, 2013): Specialty dental practices around the country are receiving audit letters from “Zone Program Integrity Contractors” (ZPICs), contractors working for the Centers for Medicare and Medicaid Services (CMS). This latest audit focus by ZPICs is rather surprising in light of the fact that very few dental procedures qualify for Medicare coverage and payment. The purpose of this article is to examine this occurrence and discuss how a dentist should respond if his specialty dental practice is audited by a ZPIC.
I. Dental Coverage Under Medicare – Background
Historically, Congress has affirmatively included specific language designed to limit the types of dental services that would qualify for coverage and payment under the Social Security Act (Act). As Section 1862 (a)(12) of the Act states:
"where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under Part A in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services."(emphasis added).[1]
Notably, the exclusion of dental services from Medicare is nothing new. Dental services were carved out of coverage when Medicare was first passed. Moreover, the exclusion was extraordinarily broad – it was not merely limited to “routine dental services.” It was not until 1980 that Congress decided to make an exception for inpatient hospital services which were required as a result of serious dental needs which required hospitalization. At present, Medicare covered dental services are essentially limited to cases where the dental services are:
“. . . an integral part either of a covered procedure (e.g., reconstruction of the jaw following accidental injury), or for extractions done in preparation for radiation treatment for neoplastic diseases involving the jaw. Medicare will also make payment for oral examinations, but not treatment, preceding kidney transplantation or heart valve replacement, under certain circumstances.” (emphasis added).[2]
II. A Brief Overview of the Creation of ZPICs
On August 21, 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA). While most health care providers think of “privacy” when HIPAA is mentioned, the legislation was historic in its scope, greatly expanding the government’s investigative and enforcement authorities and providing ongoing funding for the future. HIPAA’s overall purpose was to protect the financial integrity of the Medicare Trust Fund and the statute has greatly facilitated the government’s efforts in this regard.
One of HIPAA’s most important provisions established the Medicare Integrity Program (MIP). MIP. The purpose of MIP was to strengthen CMS’ ongoing efforts to identify, pursue and prosecute health care fraud. Additionally, the statute was intended to deter potential future fraud. As part of this program, CMS established a new type of contractor, known as “Program Safeguard Contractors” (PSCs). These new contractors essentially assumed many of the program integrity functions previously handled by Carriers (Part B) and Fiscal Intermediaries (Part A).
Over the next decade (prior to their replacement by ZPICs), PSCs aggressively pursued alleged Medicare overpayments from physicians, home health agencies, hospice companies, behavioral health centers, and other health care providers around the country.
On December 8, 2003, Congress passed and the President signed the Medicare Modernization Act (MMA) into law. Section 911 of the MMA provided for significant reform of the existing Medicare Fee-For-Service contracting program. Among its many changes, the Carrier / Fiscal Intermediary system was replaced with a consolidated new type of administrative contractor known as a “Medicare Administrative Contractor” (MAC). Seven program integrity zones were created and MACs were selected to administer most Part A and Part B programs for these zones.
The MMA also created new program integrity contractors to perform the audit and review functions in these seven zones. Zone Program Integrity Contractors (ZPICs) were established to handle program integrity functions in these zones for Medicare Parts A, B, Durable Medical Equipment Prosthetics, Orthotics, and Supplies, Home Health and Hospice and Medicare-Medicaid data matching. In recent years, ZPICs have largely replaced most of the PSCs around the country. Any work being performed by PSCs (if any are still operating) will eventually be replaced by ZPICs.
Medicare Part C and D program integrity efforts are handled separately. A single national contractor (at this time, Health Integrity) was selected to serve as the “Medicare Drug Integrity Contractor” (MEDIC). CMS remains responsible for all aspects of the Medicare program and manages these private contractors, overseeing the work that they perform on the government’s behalf. The following zones are currently being handled as indicated below:
- Zone 1 – SafeGuard Services: CA, NV, American Samoa, Guam, HI and the Mariana Islands.
- Zone 2 – AdvanceMed: AK, WA, OR, MT, ID, WY, UT, AZ, ND, SD, NE, KS, IA, MO.
- Zone 3 – Cahaba: MN, WI, IL, IN, MI, OH and KY.
- Zone 4 – Health Integrity: CO, NM, OK, TX.
- Zone 5 – AdvanceMed: AL, AR, GA, LA, MS, NC, SC, TN, VA and WV.
- Zone 6 – Under Protest: PA, NY, MD, DC, DE and ME, MA, NJ, CT, RI, NH and VT.
- Zone 7– SafeGuard Services: FL, PR and VI.
III. Are Practices Prepared for Medicare Dental Audits?
Unfortunately, very few dental practices have developed and implemented an effective Compliance Plan or Compliance Program. Is one needed? We believe that every dental practice should have an effective Compliance in place. Notably, when issuing compliance guidance to individual and small physician practice groups, the Department of Health and Human Services, Office of Inspector General (OIG) wrote that the guidance was not merely intended to cover medical doctors, but also a wide variety of other clinical professionals. As the OIG wrote:
“[f]or the purpose of this guidance, the term "physician" is defined as: (1) a doctor of medicine or osteopathy; (2) a doctor of dental surgery or of dental medicine; (3) a podiatrist; (4) an optometrist; or (5) a chiropractor, all of whom must be appropriately licensed by the State.”[3] Furthermore, the OIG has stated that “[m]uch of this guidance can also apply to other independent practitioners, such as psychologists, physical therapists, speech language pathologists, and occupational therapists.” [4] (emphasis added).
It is important to keep in mind that a Compliance Plan or Program is far more extensive that merely policies and procedures covering health information privacy (HIPAA) and OSHA requirements. Every dental practice must also have effective procedures in place to guard against the commission of fraud or abuse against public payors, private payors and patients. Moreover, your staff must be trained to identify potential problems so that remedial steps can be taken to correct a potential or actual problem.
IV. How Will a ZPIC Auditor Look at Your Dental Claims for Services?
It is essential to keep in mind that the viewpoint of an auditor, when reviewing the medical records supporting a certain dental claim, is not the same as that of the treating dentist. An auditor’s perspective is that of someone who is trying to determine: Was the dental service really needed? Was it provided? Should we cover it? As you can see, the viewpoint of the auditor when assessing the sufficiency of medical documentation may be very different from that of the treating dentist.
In assessing the appropriateness of a claim and its associated documentation, we have developed a checklist that we refer to as “The Seven Elements of a Payable Claim.” In auditing your dental services, a ZPIC auditor will likely apply a similar approach. Here are the seven elements:
Element #1:: Medical Necessity of Dental Services Provided. An auditor will likely start by deciding whether a particular service was medically necessary. To avoid having a ZPIC auditor deny one or more of your dental services based on an alleged lack of medical necessity, your documentation must clearly show that the services were reasonable and necessary “for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.”[5] Sound simple? Not really. This is often an issue in dispute upon appeal, especially since the auditor is likely not a licensed dentist.
Element #2: Were the Dental Services Actually Provided. While dental services may be found to be medically necessary based on the clinical needs of the patient, your documentation still needs to show that the services were, in fact, rendered. This can be especially problematic when dealing with the few complex dental services that are covered under Medicare. Regardless of whether the patient is sedated, he / she likely has only a basic idea of what you are doing in their mouth. When they receive their Explanation of Benefits (EOB) form, outlining the services charged to Medicare, they are unlikely to recognize half of the charges. As you can imagine, this confusion can lead to complaints to Medicare and an audit of your records.
Element #3: Were the Dental Services “Tainted” for Any Reason? In other words, are the dental services problematic because of a violation of law, such as the Anti-Kickback Statute, False Claims Act or other statutory provision.
Element #4: Do the Dental Services Qualify for Coverage? Despite the fact that the dental services provided may be medically necessary, they still may not qualify for coverage and payment. Coverage is a “standalone” element. It can change from year to year and from payor to payor.
Element #5: Is Your Documentation of the Dental Services Complete? Be sure and pull all of the regulations and any other guidance issued by CMS, the MAC handling your zone and any other statutory guidance which may set out the documentation requirements associated with a particular dental service or claim. Remember, ZPIC reviewers take the position that “If it isn’t documented, it didn’t happen.” As a participating provider in the Medicare program, you are required to fully meet Medicare’s documentation requirements.
Element #6: Are your Dental Services Properly Coded? Importantly, even if all of the foregoing requirements have been met, it is still quite simple for a dentist to make a coding mistake, thereby possibly invalidating the claim for dental services. Have your staff members been trained on dental coding requirements? As the American Dental Association (ADA) notes:
“Accurate recording and reporting dental treatment is supported by a set of codes that have a consistent format and are at the appropriate level of specificity to adequately encompass commonly accepted dental procedures. These needs are supported by the Code on Dental Procedures and Nomenclature (Code). The Code is periodically reviewed and revised to reflect the dynamic changes in dental procedures that are recognized by organized dentistry and the dental community as a whole” (emphasis added).
The Code on Dental Procedures and Nomenclature is commonly referred to as the “CDT” code book. Like its medical cousin, the Current Procedural Technology (CPT), which is published by the American Medical Association (AMA), the CDT code book provides a dynamic set of coding guidelines to be followed by dental administrative personnel. Regular training of your staff is essential to help ensure accuracy and consistency in high qualify coding.
Element #7: Did You Bill for the Dental Services Rendered Correctly? The seventh and last element is “billing.” Assuming that each of the previous elements have been correctly addressed and met, has your staff correctly billed for the dental services rendered to the patient, private payor or public payor responsible for payment? r Billing Practices – Were the services rendered correctly billed to Medicare? None of are perfect. Mistakes occur. Your biller may accidentally double-bill a payor for a service. Alternatively, your biller may accidentally bill for the wrong code. When faced with an overpayment remember: If it doesn’t belong to you, give it back.” Virtually NO overpayments belong to a dentist or a dental practice. Any unclaimed overpayments which are either refused by a private payor (sounds odd but it occurs), or cannot be returned for other reasons (perhaps the patient to whom the refund was owed has died), is likely required to be turned over to your state’s “escheat” fund. Failure to turn over unclaimed monies in a prompt fashion can subject a dental practice to fines. In some states, it can even result in criminal action.
V. Final Remarks Regarding Medicare Dental Audits
In conclusion, it is important for dentists and other health care providers to recognize and accept the fact that full “compliance” with government rules, regulations and requirements isn’t necessarily something that comes naturally. When documenting a certain procedure, a specialty dentist is likely to include any and all information in the record which (in his or her professional opinion) should be documented to fully account for the patient’s clinical profile or condition, the reason for their visit and services you provided (along with a possible discussion of your decision process). As set out above the perspective of a ZPIC auditor is likely to be much more comprehensive.
Is your practice ready for a ZPIC audit? Do you have an effective Compliance Plan in place? Call Liles Parker for assistance in preparing for a ZPIC audit or responding to a ZPIC audit of your dental services. We can also assist you in the development and implementation of an effective Compliance Plan.
Robert W. Liles, Esq., is Managing Partner at the health law firm, Liles Parker, PLLC. With offices in Washington, DC, Houston, TX, San Antonio, TX and Baton Rouge, LA, our attorneys represent home health agencies, physicians and other health care providers around the country in connection with Medicare / Medicaid prepayment reviews, post-payment audits, Compliance Plan reviews and state peer review actions. Should you have any questions, please call us for a free consultation. Robert can be reached at: 1 (800) 475-1906.
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