Targeted Probe and Educate – A Step in the Right Direction

By: Denise M. Leard, Esq.

In recent years, CMS has shifted its audit strategy. It has moved from a pay and chase model to a model in which it does not let the money out the door. In doing so, it has greatly increased the number of prepay audits it conducts. While a prepayment audit is more desirable than an extrapolated post payment audit conducted many years after the provision of service, the sheer number of audits has caused many problems for suppliers. There are a few individuals who are really trying to take advantage of the program and are guilty of fraud, but the majority of providers are trying to comply with the documentation requirements but fall short. Unfortunately, the widespread prepay audits are causing undue stress and burden on providers who are trying to do it right. In addition, appeals are backlogged at the Administrative Law Judge level taking on average 3 to 4 years for a hearing. There has to be a better way to safeguard the program with less burden to both patients and providers. The recent initiative from CMS “Targeted Probe and Educate” (“TPE”) appears to be a step in the right direction.

Under TPE, providers won’t be subjected to unlimited request for documentation followed by vague denials that go on forever. Under TPE, the Durable Medical Equipment Medicare Administrative Contractor (“DME MAC”) is limited to requesting 20 to 40 medical records per supplier per issue. Once the records are submitted and reviewed by the DME MAC, the DME MAC must explain any denials and provide detailed education to the supplier. The supplier is then given 45 days to implement any appropriate changes. If the supplier is not compliant, the DME MAC can request an additional 20 to 40 records to determine if there are still issues. The process will then repeat itself with more education, if necessary. The DME MAC will conduct up to 3 rounds of TPE. If a supplier continues to exhibit errors after 3 rounds of TPE, a referral to CMS may be made. At that time, CMS has multiple options on how to handle the continued errors including referral to a Zone Program Integrity Contractor (“ZPIC”) or Unified Program Integrity Contractor (“UPIC”), 100% prepay review, or extrapolation just to name a few. On the bright side, once a supplier exhibits an acceptable error rate, the probes will cease. It is to a supplier’s advantage to learn from the education being provided and implement the appropriate corrective actions.

In 2014 CMS began using a medical review strategy called Probe and Educate for hospital inpatient status cases. This strategy was also used for Home Health. The Probe and Educate strategy used both claim review and education as a way to reduce errors. The data showed there was a decrease in errors after providers received education. The Probe and Educate strategy included broad spread probes with CMS choosing the topics for the probe. CMS decided to move from the broad Probe and Educate strategy to a more targeted strategy focusing on specific issues or providers. In Medicare Transmittal 1861¹, the Probe and Educate strategy was expanded into the TPE pilot, which allowed the Medicare Administrative Contractors (“MACs”) to select their own review topics. The pilot included Jurisdictions B, D, E² and F³ with the purpose of testing the strategy for DME and urban regions.

According to Transmittal 1861, the key elements of the Pilot included:

1. Replace all current complex and routine reviews in the MAC’s Improper Payment Reduction Strategy (IPRS) with three rounds of a prepayment Targeted Probe & Educate process. This pilot will be for the medical review process in one MAC jurisdiction. This instruction excludes any reviews or pilots that are otherwise mandated by CMS.
2. If high denial rates continue after 3 rounds, the MAC shall refer to CMS for additional action, which may include extrapolation, referral to the ZPIC/UPIC, referral to the RAC, etc.
3. The MAC, rather than CMS, will select the topics for review (based on existing data analysis procedures).
4. The MAC can target the strategy on the providers most likely to be submitting non-compliant claims, rather than reviewing 100% of the providers.
5. Limit the sample for each probe “round” to a minimum of twenty (20) and a maximum of forty (40) claims.

During the pilot, MACs were required to cease all complex review, routine reviews and documentation compliance reviews. CMS has deemed the pilot a success and has expanded TPE to all MAC jurisdictions. As a result TPE has been being used in all DME MAC jurisdictions since October.

Selection of Claims

The MACs should select claims for items and services that pose the greatest financial risk to the Medicare program and/or those that have a high national error rate. MACs will focus only on providers and suppliers who have the highest claim error rates or billing practices that vary significantly from their peers. The suppliers and specific items or services are identified by using data analysis. TPE claim selection is different from that of the previous probe and educate programs. In the previous programs, the first round of reviews were of all providers for a specific service, the TPE claim selection is supplier specific from the onset. This eliminates burden to providers who, based on data analysis, are already submitting claims that are compliant with Medicare policy. It’s important to note that if selected for review, suppliers are not excluded from other Medical Review activities, such as automated reviews, other pilot review programs, prior authorization, etc. as directed by CMS or other contractor reviews.

What should you do if selected for TPE? First, be sure to timely respond to any request for documentation. It will be necessary for the supplier to obtain medical records if it does not already maintain them. It is recommended that the supplier respond to a TPE audit just like it would any other type of audit. Provide the documents in a well-organized manner along with a summary of the records pointing out specifically where in the documentation the local coverage determination criteria can be found.

Once the results are received, the supplier will be given the opportunity for detailed education of the errors. Take full advantage of this opportunity. The supplier should make sure that it understands the error and what it needs to do to correct the problem. If the DME MAC suggest changes to the supplier’s paperwork, it should make the changes.

Once the education has been completed, the supplier should implement appropriate corrective action. The corrective action should include training of key personnel who will be in a position to assure that the supplier’s documentation moving forward meets Medicare guidelines. The sooner the supplier is compliant the sooner it will be released from TPE. If the supplier does not implement the appropriate corrective action and continues to have a high error rate it will receive additional probe reviews. The supplier will be given at least 45 days to implement changes before a new probe is started.

Under TPE, suppliers will be provided the education needed to submit complaint claims. By educating suppliers, CMS believes it will be able to reduce the number of claims being pumped into the appeals process. In addition, the feedback coming from the supplier community is positive. TPE appears to be a step in the right direction.

This material is provided for informational purposes only and is not legal advice. Readers should contact their own counsel to obtain legal advice with respect to any specific issue.

Denise M. Leard, Esq., is an attorney with the Health Care Group at Brown & Fortunato, a law firm based in Amarillo, Texas. She represents pharmacies, infusion companies, home medical equipment companies, and other health care providers throughout the United States and Puerto Rico. Mrs. Leard is Board Certified in Health Law by the Texas Board of Legal Specialization. She can be reached at (806) 345-6318 or dleard@bf-law.com.

¹Pub. 100-20, Transmittal 1861 (June 29, 2017).
²Jurisdiction E is the Medicare Part A and Part B carrier and includes the states of California, Hawaii, Nevada and the territories of American Samoa, Guam and the Northern Mariana Islands.
³Jurisdiction F is the Medicare Part A and Part B carrier and includes the states of Alaska, Arizona, Idaho, Montana, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.