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Testimony on Fraud in Medicare Programs by Michael F. Mangano
Principal Deputy Inspector General
U.S. Department of Health and Human Services

Before the Senate Committee on Governmental Affairs, Permanent Subcommittee on Investigations
June 25, 1997

Good morning, Mr. Chairman. I am Michael F. Mangano, Principal Deputy Inspector General of the Department of Health and Human Services, and I am here to report to you on our efforts to combat fraud, waste, and abuse in the Medicare program.

Medicare is one of our nation's most important social programs. It provides health care coverage for more than 38 million elderly or disabled Americans. Unfortunately, it also presents many opportunities for unscrupulous individuals to steal from U.S. taxpayers. Because of the huge sums of money being spent in support of Medicare-419 1 billion estimated for FY 1997-- there will always be individuals or companies that attempt to game the program purely for their own profit. We in the Office of the Inspector General have literally been waging a continuous war against this fraud and abuse since 1977.

Since last October, the Office of Inspector General and the Department of Justice have been involved in the resolution of over 700 criminal and civil cases that have led to settlements of over $1 billion for the Medicare Trust Fund, and we have excluded over 980 fraudulent and abusive providers from program participation. Once a program exclusion is imposed, Federal program payments may not be made to any individual, business or facility for items or services furnished, ordered, or prescribed by the excluded individual or entity. Exclusions imposed by the OIG apply not only for HHS and State health care programs, but also for all other Executive Branch procurement and non- procurement programs and activities. This means, for example, that a health care provider excluded from Medicare, Medicaid, and other State health care programs will be unable to continue participating in the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) program administered by the Department of Defense or in the Federal Employee Health Benefits Program (FEHBP) administered by the Office of Personnel Management.

Convicting abusive providers, keeping them out of the program, levying fines, recovering overpayments, negotiating settlements--all these actions are necessary to reduce Medicare fraud and abuse. But they will never be more than the second best way to do this. The best way is to prevent fraud, waste, and abuse from ever occurring in the first place. This requires identification and correction of vulnerability built into the programs themselves or into the management systems used to administer and monitor them. We find that most health care providers are honest. Only a few set out with intent to defraud the program. However, systemic weaknesses create gray areas that make Medicare vulnerable to abusive and improper billings, increasing the risk of improper payments.

Vulnerability to Abusive and Improper Billings

One source of vulnerability is the design of the benefit categories and reimbursement criteria themselves. Our audits, investigations, and evaluations often reveal patterns of unintended incentives, inherently ineffective controls, poorly defined eligibility criteria, excessive reimbursement rates, unmeasurable outcomes, baselines premised on inaccurate assumptions, and other such design weaknesses. When we spot these kinds of problems, we issue reports recommending regulatory or legislative reforms. Our office has testified before the Congress on many of these problems. Based on a review of all of our work in recent years, I would like to highlight here what we believe are the areas of highest risk for abusive and improper billings to the Medicare program.

Home Health. Between 1990 and 1996, expenditures for home health benefits had grown fivefold from $3.5 to $16.9 billion, and the number of beneficiaries increased from 2 to 3.7 million. Utilization also doubled, from an average of 36 to 76 visits per beneficiary. Some of the growth is appropriate and expected due to changes made to the benefit, demographic trends, technological advances, and a trend toward providing more care in the community instead of in institutions.

Unfortunately, fraud and abuse may also be a factor. Recently completed audits of eight home health agencies (HHAs) in Florida, Pennsylvania, and California have revealed that from 19 to 64 percent of the home health visits paid for by Medicare did not meet Medicare guidelines. We found visits that were not considered reasonable or necessary, patients who were not homebound, inadequate physician authorization, and services claimed but not provided.

Preliminary results from a study in four of the largest States confirm these conditions are wide-spread. Following are a couple of examples of fraud and abuse in the home health industry: False Cost Reports. First American Health Care of Georgia, Inc. was the largest privately held home health care provider in the country. When our investigation began, the company was known as ABC Home Health. Jack and Margie Mills were the majority shareholders and chief officers of the company and its subsidiaries. After extensive investigation and audits by the Office of Inspector General, the Mills and the First American parent company were convicted of several Medicare-related criminal offenses and were excluded from participating in the Medicare and Medicaid programs. The Mills' received significant prison time, and the related settlement provides for a return of $255 million to the United States. Offenses included improperly shifting unallowable costs onto Medicare cost reports such as lobbying and advertising expenses and promotional items such as $84,000 in gourmet popcorn. The company and its owners claimed items and services that benefitted the owners personally as reasonable and necessary "general and administrative" expenses related to the care of Medicare patients (e.g., golf course memberships, greens fees, a family vacation, and an expensive car for a son in college).

Services Not Rendered. On a smaller scale, the co-owner of a Washington, D.C. HHA was sentenced to 27 months in prison and ordered to pay full restitution of $100,000 defrauded from the Medicare and Medicaid programs. The HHA billed for 1,450 skilled nursing visits for which there are neither time slips nor nurses' notes documenting the visits were made. It also billed for home nurse visits when patients were actually hospitalized. Another co-owner was also convicted but has been in escape status since leaving his detention center assignment.

We have also found extreme and seemingly unjustifiable variation in payments to home health agencies. In 1994, lower cost home health agencies (those which provided less than the national average of visits per episode) averaged 33 visits per episode, whereas the higher cost agencies (those with visits per episode above the national average) average 102. Based on our studies, we believe the differences are due mostly to the discretion afforded home health agencies to influence the amount of care given to their clients.

We believe that the Health Care Financing Administration can strengthen controls of the home health benefit through several methods like restructuring the HHA reimbursement methodology by establishing a prospective payment system; placing a limit on the number of visits allowed per beneficiary; establishing a system of pre-authorizations; and/or establishing a copayment. In addition, programmatic operational actions can be taken such as emphasizing key policy points in the Medicare HHA manual and improving guidance; revising Medicare regulations to require the physician to examine the patient before ordering home health services; requiring intermediaries to provide beneficiaries with explanations of Medicare benefits for home health services so they can see the visits being charged to Medicare; and instructing intermediaries to augment focused medical reviews with physician and beneficiary interviews. HCFA should ensure more effective reviews of home health agencies, use of case management, and adequate funding for fiscal intermediaries to detect inappropriate claims.

I would like to note that this subcommittee issued a report back in 1981 on home health that recommended, as we are recommending today, that HHAs should be reimbursed under a prospective payment system. The subcommittee believed that a prospective payment system would force HHAs to be more cost- efficient in order to meet the target rate. In the absence of a prospective payment system, the subcommittee recommended that HCFA take a variety of actions including competitive bidding of subcontracts, competitive selection of intermediaries, and expediting regulations to require bonding of HHAs in their first 5 years of operations or under certain other conditions. The subcommittee encouraged increased intermediary audits of HHAs, better notification of HHAs regarding policy changes, and asked HCFA to pursue the use of termination and exclusions.

Medical Equipment and Supplies. Over the years, we have devoted significant resources to issues involving medical equipment and supplies. The problems have included claims for equipment that was never delivered, upcoding, unbundling, medically unnecessary equipment, and excessive payment rates. Our work has disclosed losses totaling several hundred million dollars for incontinence supplies, wound care, lymphedema pumps, and orthotic body jackets. We previously found abuses relating to seat lift chairs and power operated vehicles.

The widespread problems in this area have been due in part to high profit margins, ease of entry into the system, and weaknesses in payment safeguard functions. We believe that legislative and regulatory actions are needed to tighten up entry of suppliers into the Medicare program, and to give the Health Care Financing Administration greater authority to set prices for equipment and supplies. However, such authorities are needed throughout the Medicare program, not just in the area of supplies and equipment.

A specific area of concern is the home oxygen benefit. For beneficiaries who are deficient in the amount of oxygen in their blood, Medicare covers both oxygen and oxygen supplies and equipment, including the system for furnishing it, the vessels that store it, and the tubing and administration sets. Allowances more than doubled from 1992 to 1995, rising from $835 million to more than $1.6 billion. The root of the problem is not so much with billing abuses as with the fact that Medicare cannot get competitive prices. Even though it is a high-volume payer, Medicare is not able to negotiate volume prices as high-volume purchasers normally do. Medicare paid more than twice as much for oxygen equipment and supplies as the Department of Veterans Affairs according to our 1991 study. The difference remains greater than 40 percent in 1996. The Health Care Financing Administration estimated the savings could be at least $200 million per year from a 40-percent reduction on reimbursement for oxygen concentrators. In May 1997, the General Accounting Office (GAO) issued a report comparing Medicare and VA payments for home oxygen supplies and services and concluded that if Medicare had paid for oxygen and related supplies and services at the adjusted VA rates, the Medicare program would have saved as much as $500 million in FY 1996. The VA uses competitive bidding to lower its costs. Medicare does not have that option. Legislative options include allowing for competitive bidding or setting special payment limits.

Other program weaknesses create conditions in which Medicare pays more than it should, pays inappropriately, or pays improperly because of false billings. I would like to describe some examples of fraud in the medical equipment and supplies arena:

Incontinence Supplies. One of the highest-reimbursed Medicare suppliers of incontinence care products agreed to plead guilty to conspiracy to defraud Medicare of more than $70 million. He distributed adult diapers to nursing homes (which are not covered by Medicare) but billed Medicare for female urinary collection pouches. He agreed to forfeit $32 million in seized bank accounts, paid $2.5 million in restitution, and was sentenced to 10 years imprisonment. Another incontinence care supplier defrauded Medicare of $25 million, forfeited $12 million, and was sentenced to 57 months incarceration followed by 3 years supervised release.

Durable Medical Equipment. At least 19 individuals have been convicted in connection with over $20 million in false billings of durable medical equipment and supplies by a major supplier and related companies. The individuals were owners, physicians, sales people, and an accountant. The physicians were charged with signing medical necessity forms for equipment which was never received or needed, without seeing the patients. The sales people were charged with recruiting Medicare beneficiaries by giving them nonreimbursable items such as microwaves and air conditioners, while the company billed Medicare for reimbursable items such as hospital beds and wheelchairs. Several sales people were Russian or Hispanic and were targeting Russian and Spanish- speaking beneficiaries. One physician who was sentenced in absentia fled to the Dominican Republic and cannot be extradited at this time.

Lymphedema Pumps. These pumps are pneumatic compression devices that are used to treat swelling of tissues resulting from accumulation of fluid from lymphatic blockages. The pumps range in sophistication and can cost from $600 to $6000. One supplier was sentenced to 1 year in prison and 3 years supervised release and was ordered to pay $294,860 in restitution, fines, and penalties. He billed Medicare for lymphedema pumps at $4,500 each, but he delivered pumps that would have been reimbursed at $600 and pocketed the difference.

Nursing Homes and Related Services. The Medicare and Medicaid programs together paid $46 billion for nursing care of all kinds in 1995. This included $42 billion in payments to nursing homes ($9 billion under Medicare Part A and $33 billion under Medicaid), and $4 billion under Medicare Part B in payments to various providers of medical supplies and services for Medicare beneficiaries residing in nursing homes.

We have found a variety-of problems including inappropriate billings for mental health services for patients in nursing homes. At least $17 million, or 24 percent of all such billings, were in error in 1993. This included payments for socialization events billed as group therapy and payments for psychotherapy sessions for individuals not needing them and with diminished capacity to gain any benefit from them. Following are two examples of inappropriate billings for mental health services to nursing home residents:

Psychology Services. A company which employed psychologists to provide services to nursing home residents entered a civil settlement agreeing to pay $700,000 to settle allegations that it submitted false Medicare claims. The company billed for 45 to 50 minutes of psychotherapy to nursing home residents when only 20- to 30-minute sessions were held. Some of the psychologists billed for more than 14 hours of therapy a day -- one billed for the equivalent of more than 24 hours a day.

Psychiatric Services. In another example, a psychiatrist signed an agreement to pay the Government $300,000 to settle. He provided psychiatric care to Medicare beneficiaries in nursing homes in California, Rhode Island, Florida, Texas, New York, Washington and Oregon. His scheme involved duplicate billing through two separate entities, both of which he owned. During the investigation, his various companies were found to have 24 different mailing addresses, 23 different telephone numbers, and at least 12 different provider numbers.

We have become increasingly concerned about cost shifting from Medicare Part A to Medicare Part B in the nursing home setting. Nursing home residents are accessible and can be vulnerable, providing a unique opportunity for fraud, waste, and abuse. Unless protected by concerned family or friends, the attending physician, or enlightened policies and practices of the nursing home, nursing home residents may be subjected to health care practices in which decisions on care are governed as much by financial incentives as medical necessity.

We support the idea of a prospective payment system for Medicare Part A nursing facilities and would also advocate that this or a similar approach be more widely used by States under their Medicaid programs. We urge that as many services as possible be included in the prospective payment rate, such as most payments for enteral nutrition, incontinence supplies, and wound care. Services which are not included in the prospective payment rate should be consolidated into a single bill to be submitted by the nursing home under Medicare Part B, if appropriate.

It is just as important to ensure quality of care as it is to control costs. Prospective payment systems will bring their own incentives, some of which may provide a risk to quality of care through premature discharge or refusal to accept patients with complicated conditions. Therefore, it may be necessary to include higher payments for outlier cases and anti-dumping provisions similar to those that apply to hospitals.

Laboratory Services. We are nearing completion of a multi- year investigative initiative called LabScam. This is targeted at abusive marketing and billing practices, particularly "unbundling to which is the practice of running specimens through a single piece of automated multi-channel laboratory equipment and then billing separately for each component test. So far our investigation has generated receivables of over $800 million. Initially we focused our efforts on large, independent laboratories. We are now directing our attention to hospital outpatient labs. Here are two examples:

Independent Laboratory Case. Smith Kline Beecham Clinical Laboratories was named in a number of suits related to marketing and billing abuses common to all the laboratories, including unbundling. Smith Kline entered into a settlement agreement and a corporate integrity agreement with the Federal Government. The company agreed to pay $325 million and implement a stringent compliance plan under the supervision of the Office of Inspector General to settle its civil liability for false billings.

Hospital Outpatient Laboratories. As a result of a review of hospital outpatient laboratory billings in one State, we are expecting about 25 settlements amounting to about $10 million. We found that these hospitals were widely practicing unbundling of tests and submitted erroneous or excessive claims for urinalysis, organ panel, hematology and automated blood chemistry tests. This review is being extended nationally.

Fraud is not the only reason laboratory services are rising so rapidly. Incentives for increased utilization can be found in the practice of defensive medicine. Much of this is legitimately needed, but some of the increased utilization may be unnecessary. The frequency of testing for the Medicare population increased 96 percent from 1986 to 1993, while the population increased by only 14 percent. For all these reasons, laboratory services is one area we need to keep a close watch on.

Hospitals. Our short list of potential program vulnerabilities includes the largest or fastest growing components of the Medicare program. This certainly includes hospitals, the largest single destination of Medicare payments. According to the 1997 Annual Report of the Board of Trustees of the Federal Hospital Insurance Trust Fund, payments for the costs of fee-for-service inpatient hospital care represented 67 percent of Part A benefits. Based on Part A benefit payments of $128.6 billion, fee-for-service inpatient care amounted to $86.2 billion in calendar year 1996. We find a high risk for upcoding of discharge billings, gaming of the prospective payment window, and using accounting techniques to exaggerate "losses" upon the sale of facilities and then billing Medicare for millions of dollars to cover its share of these spurious losses.

Upcoding of discharge billings. Most hospitals are paid based on a diagnosis-related group (DRG) code for each discharge under the prospective payment system. Medicare does not currently have a process in place to validate the codes and assure proper payment is made. We are studying the use of commercial software currently used to detect billing irregularities and will determine the extent to which hospitals are upcoding hospital discharges for Medicare payment; that is, charging for a higher level of service than was actually delivered. We are finding upcoding with regard to conditions such as respiratory illnesses. The incentives and opportunities for upcoding are enormous, given more than $86 billion in annual reimbursements and the largely unmonitored billing environment. In our audit of HCFA's financial statements, we looked at a sample of hospital claims and are very concerned about an apparent lack of support for the level of DRG being claimed in some cases. More specific work will ensue from that review.

Prospective payment window. We are finding a substantial number of overpayments made to hospitals as a result of claims submitted for nonphysician outpatient services that were already included in the hospital's inpatient payment under the prospective payment system. Hospitals that submit claims for the outpatient service in addition to the inpatient admission are, in effect, submitting duplicate claims for the outpatient services. We have identified 4,660 hospitals that submitted improper billings for such outpatient services. These hospitals are given the opportunity to enter settlements with the Government under which their financial exposure is substantially less than if litigated under the Federal Civil False Claims Act. One of the most important parts of this project is the stipulation in each settlement agreement that each hospital will assure compliance with proper billing for future services. The total anticipated recovery under this nationwide project is approximately $90 million to $110 million over the next 2 years.

Exaggerated losses. When hospitals are sold, Medicare uses a system called the Recapture Program to account for gains and losses during the sale of depreciable assets. If the hospital sells for a profit (anything over its original value less depreciation) Medicare shares in the profit. If the hospital sells for a loss, Medicare shares in the loss. We are finding that sales are being artificially structured to report losses; to minimize profits in order to maximize Medicare payments at the time of the sale; or to minimize Medicare's recapturing of a portion of the profit.

Managed Care. Also included in this category of vulnerable program areas is managed care, which has grown rapidly in recent years to include 4.9 million Medicare beneficiaries, or 13 percent of the total Medicare population. Our studies have shown that most beneficiaries are satisfied with the care they receive from their Medicare managed care providers. However, we have found some indications that some sicker patients, such as dialysis patients and disabled persons, are far less satisfied and leave these programs at higher rates than other beneficiaries. In a 1991 study of health maintenance organization (HMO) marketing practices in Florida, we found that most beneficiaries did not feel pressured by sales staff and understood the differences between fee-for-service and managed care arrangements. A few marketing abuses were found such as sales staff targeting illiterate or otherwise limited beneficiaries and talking them into changing from one HMO to another without the beneficiary fully understanding what they had done. For example, one beneficiary said a driver picked him up to keep a medical appointment at his HMO. However, the driver took the beneficiary to a new HMO, whereupon he was enrolled in that HMO plan. The beneficiary thought he was merely keeping his appointment with is current HMO. A substantial number of beneficiaries did not understand that they had a right to back out of managed care if they were not satisfied. Subsequently, we have found weaknesses with appeal and grievance processes and have uncovered instances of false billings for institutionalized, dialysis, or Medicaid eligible Medicare beneficiaries on whose behalf the Medicare health maintenance organizations are entitled to a higher rate of reimbursement than other members.

Other Vulnerable Areas. Physicians billing for services not rendered or not needed is a continuing problem. For example, a urologist was recently sentenced to 24 months in prison for submitting false claims for complex procedures he did not perform. He will be excluded from Medicare for 10 years because of aggravating circumstances: i.e., he performed invasive procedures such as visual examinations of the bladder and urethra and assessments of the bladder's neuromuscular function which he admitted were not medically necessary. He has surrendered his medical license.

We are also becoming increasingly concerned about ambulance services. The Medicare bill has now reached $2 billion per year. We have seen a continuous stream of fraud cases involving false or inflated claims and billing for higher levels of service than provided by ambulance companies. We are also just now seeing a consolidation of that industry into the hands of a few large corporations. Recently, an ambulance company entered a global settlement of allegations that it billed the Government for nonallowable transportation services. The company agreed to forfeit $4.6 million in payments withheld by the Medicare carrier. Criminal investigation of several individuals is ongoing.

Management Authorities and Systems

Some of Medicare's most troublesome vulnerabilities stem not so much from the design of individual benefit categories, but from weaknesses in management authorities or ineffective information and control systems used by the Department to administer programs and monitor their cost and effectiveness. The following are examples of such weaknesses which we have observed over and over again in our work.

Enrollment of Providers. In my earlier discussion of durable medical equipment, I alluded to the need for stronger measures related to the enrollment of providers. This is true for almost all aspects of the Medicare program. One of the best ways to prevent Medicare fraud is to keep illegitimate providers from ever getting into the program.

This could be accomplished by mandating providers to supply social security numbers and, in the instances of entities, by supplying tax identification numbers. The Health Insurance Portability and Accountability Act also establishes a National Provider Identifier which will be used by all health care providers and will replace most provider numbers currently used by Medicare. This can lead to a significant improvement in our ability to identify providers, and we plan to monitor the implementation of this closely to ensure that there are adequate provisions to ensure the integrity of the system. However, I also need to stress to you today that the effectiveness of this new system may be limited by the statutory prohibition on the collection of Social Security numbers. We strongly recommend that the Congress authorize the collection of this information to ensure that fraudulent providers are identified and prevented from doing business with the Government.

Provider enrollment applications should be updated every 2 years. Other controls such as use of surety bonds and application fees to pay for on-site inspections and screening of applicants are also being considered as measures to strengthen the integrity of the system. In addition, changes are needed to prevent fraudulent providers from escaping the consequences of their illegitimate acts by declaring bankruptcy because of the fines imposed on them or disingenuously passing ownership of their companies on to family members or friends while continuing to manage the companies from behind the scenes.

Faster Decision Making. We all have had unsatisfactory experiences dealing with the complexity and size of our Government programs. Changing them is always difficult. In fact, the system of checks and balances of our government is designed in part to ensure that change occurs deliberately and cautiously. While we all can get frustrated with attempting to enact change, I can tell you that in fighting fraud and abuse, it is particularly disconcerting. In many respects, the Government is too slow to correct program deficiencies or close loopholes in the law which allow our programs to be abused. Program managers need more flexibility in running the programs in order to correct deficiencies before they result in millions of dollars being wasted. I would like to give you a couple of examples of this.

Reimbursement rates. When we find that a particular service or piece of medical equipment is overpriced, the Health Care Financing Administration has to go through an elaborate rulemaking process to reduce the amount Medicare pays for that item. This process involves an independent review to determine that the price of the item is "inherently unreasonable," publication of a proposed rule in the Federal Register, followed by a response to public comments and the publication of a final rule in the Federal Register. This process can easily take 2 years. For example, in December 1992, we reported that Medicare fee schedules for blood glucose monitors were excessive. While the monitors could be purchased for $50 at a drug or grocery store, we found that the Medicare fee schedules nationwide ranged from $144 to $211. In response, HCFA issued a final rule in January 1995 which established a flat payment amount of $58.71, resulting in annual savings of $5 million.

Coverage. The same process delays the implementation of decisions about which services or supplies to cover. For example, when we found that seat lift chairs were being aggressively marketed as a comfortable lounge chair, HCFA began the arduous, time consuming regulatory process needed to determine whether to withdraw coverage of this item. Fortunately, the Congress stepped in with legislation in 1989 to limit coverage to the seat lift mechanism only, and expenditures dropped from $122 million in 1988 to $14 million in 1991.

The Health Care Financing Administration needs more flexible and efficient authorities to make decisions about both prices and coverage.

Adequacy of Current Criminal and Civil Enforcement Measures

Last year we got a major boost in our efforts through the Fraud and Abuse Control Program, a key part of the Health Insurance Portability and Accountability Act. This program provides much needed resources, stronger enforcement tools, and a management structure to coordinate the efforts of numerous fraud fighting units of Federal, State, and local governments. The Fraud and Abuse Control Program is a creative and far-reaching program to root out fraud and abuse in the nation's health care system. It amounts to nothing less than an all out, pitched battle against health care fraud and abuse.

The program is under the joint direction of the Attorney General and the Secretary of Health and Human Services, working through the Inspector General. It is designed to provide a framework and resources to coordinate Federal, State, and local law enforcement efforts. It mandates a comprehensive program of investigations, audits, and evaluations of health care delivery; authorizes new criminal, civil, and administrative remedies; requires guidance to the health care industry about potentially fraudulent health care practices; and establishes a national data bank to receive and report final adverse actions imposed against health care providers. The Act also provides an innovative mechanism to fund these new anti-fraud efforts, thereby assuring that needed resources are always available for the effort.

The Health Insurance Portability and Accountability Act envisions a fraud fighting program that coordinates the efforts of a broad array of law enforcement and health care agencies. And it authorizes funding to support the strengthening of their methods and the development of new detection and enforcement techniques. We have already taken aggressive steps to develop such partnerships and build a national team to combat health care fraud and abuse. The combined and organized efforts of our partners presents a formidable obstacle to wrongdoers in the form of an unprecedented, comprehensive, nationwide program of audits, investigations, program evaluations, and sanctions.

CONCLUSION