one of the highest reimbursed individual Medicare providers in the country.

     The OIG analyzed documentation for 100 days of service sampled from April 2018 through August 2020 and that included both in-person and telehealth psychotherapy services. The psychiatrist under scrutiny owned a practice offering a variety of mental health services provided by herself, four licensed social workers with masters’ degrees, a registered nurse and one social worker, who was not a Medicare provider.

    The OIG determined the size of the over payment based on multiple deficiencies in documentation of the psychotherapy services. For example, the audit indicated treatment plans did not comply with Medicare requirements in 100 of the sampled cases. “Without a periodic summary of goals, progress towards goals and an updated treatment plan that described any improvement in the beneficiary’s condition, the clinician would not be able to determine whether the services provided were necessary, had a reasonable expectation to improve the beneficiary’s mental health or made progress towards goals,” according to the OIG.

Other deficiencies included undocumented start and stop times for face-to-face services, or total time spent on psychotherapy, having an unlicensed or unregistered therapist in New York State providing treatment and treatment plans that were not signed.

    During the COVID-19 pandemic, the Center for Medicare and Medicaid Services (CMS) has allowed telehealth services performed by a non-physician practitioner as an integral, though incidental, part of the service of a physician for diagnosis or treatment. The so-called “incident-to” service was to be supervised using real-time interactive audio and video technology.  Face-to-face incident-to services require that the

physician be physically present in the same office suite and be immediately available to

give assistance if needed. The audited psychiatrist was unable to show evidence that all

incident-to services were directly supervised. The report repeatedly stated that the

psychiatrist did not have compliance policies and procedures in place as mandated

by Medicare, and she did not provide adequate training to her therapists.

    One element of compliance requires that providers show “reasonable diligence” to periodically

review Medicare payments to determine if any over payments are made in error during a six -year

look back period. Over payments are to be returned within 60 days of discovering them. This is

known as the 60-day rule.

 

Reasons behind audits and method used

    The OIG conducts audits and reviews because it is mandated by statute to protect the integrity of the Department of Health and Human Services by reducing waste, abuse and mismanagement of funds, as well as to protect the welfare of its beneficiaries. In 2019, Medicare paid approximately $1 billion for psychotherapy services provided across the country. Prior OIG reviews found that Medicare had improperly paid millions of dollars for psychotherapy because the services did not show medical necessity, were billed incorrectly, lacked adequate documentation or were provided by unqualified therapists. This audit did not provide an opinion as to whether psychotherapy services were medically necessary.

    The OIG reported it conducted the audit of this psychiatric practice using generally accepted government standards. The sample consisted of 15,559 beneficiary days, from which a random sample of 100 days were sampled. Office of Audit Services (OAS) statistical software (i.e., RAT-STATS) estimated through an extrapolation process the amount of Medicare over payments.

 

Provider’s response

    The law firm of Kirschenbaum & Kirschenbaum, located in Garden City, New York, initially represented the psychiatrist and replied that the over payment amount is “inaccurate, unwarranted, or at the very least, grossly overestimated” and that a majority of the claims complied with Medicare requirements.

    After reviewing the psychiatrist’s explanations, the OIG reduced the number of deficiencies about non-compliance of incident-to requirements for three sampled days because the psychiatrist submitted patient sign-in sheets indicating she was present in the same office suite at the time of the service. However, other deficiencies were found. The OIG maintained its overall findings were valid and did not change the recommended recovery of over payment. A final case determination is unknown.

    The OIG recommendations for this case are not the final Medicare determination. Through a regional Medicare contractor, CMS will decide whether over payments exist and the amount required to be paid back. Providers have the right to appeal through a five-level process. The return of over payment is not required until after the second level of appeal.

     The current status of this particular case is unknown at press time.  Attorney Samuel Atlas from the firm of Kirschenbaum & Kirschenbaum said his firm was no longer representing this New York practice. He offered no additional comments.

 

Implications for psychologists

    Deficiencies noted in the case of this audit of a New York psychiatrist highlight requirements for all psychologists and social workers who offer psychotherapy to Medicare beneficiaries. For example, every practice under audit, including solo practitioners, is likely to have a better outcome if a written compliance plan is in place.  Group practices need to offer periodic training for their providers to understand current Medicare requirements. In documenting psychotherapy, all practitioners must include treatment plans, sign each therapy note and note start and stop times and total time spent with the patient. Although not included in this particular audit, documentation of medical necessity is another requirement often examined in Medicare audits.

 

    The complete OIG report and provider’s response can be found at: https://oig.hhs.gov/oas/reports/region2/22101006.asp.