Document, Document, Document: “If it isn’t written it wasn’t done” and other Medicare Myths

1. Document, Document, Document: “If it isn’t written it wasn’t done” and other Medicare Myths Presented by David M. Glaser, Esq. Gregory J. Warner Fredrikson & Byron, P.A. Compliance Officer (612) 347-7143 Mayo Foundation dglaser@fredlaw.com (507) 284-9029 gwarner@mayo.edu

2. Our Agenda: Dispelling These Myths: • “If it isn’t written, it wasn’t done.” • “The carrier has total authority to determine medical necessity.” • “Reassignment violations are fraud.” • “NPs and PAs can’t bill high level visits.” • “Incident to services must be billed by the supervising physician.” • “All physician notes must be signed.”

3. We will also discuss common misperceptions related to: • Consultations. • Preventive medicine. • Teaching physician rules. • Determining the date to refund overpayments.

4. Separating Fact From Fiction • McCarthyism is alive and well, and living in the health care industry. • Carriers, consultants, clients and counselors are often guilty of mistakenly believing some policy or conventional wisdom is based in law. • Sometimes, they’ll use interesting techniques to change behavior.

5. Question Authority • Is it a requirement or a guideline? • Medicare -- ask if it is in the statute, regulations, Medicare Carriers Manual, or carrier policy. • Get a copy of the rule in writing. • Ask your lawyer/consultant to explain all arguments supporting and refuting their position. • Determine if the rule was properly promulgated. • Just because they sound smart doesn’t mean they’re right.

6. Scenario 1 • A physician saw 1700 patients, you have charts for 1200. The physician has some “seat of the pants” notes for some of the remaining patients scribbled on the backs of scratch paper. • You compare your charts against the documentation guidelines and discover the following:

7. Audit Results Under-coded 13% 50 15 0 33 Correctly-coded 76% 30 50 19 33 Over-coded 11% 20 35 81 33 Dr. A Dr. B Dr. C Dr. D Dr. E

8. “If it isn’t written, it wasn’t done.” • Good advice, but not the law. • Medicare payment is determined by the content of the service, not the content of the medical record. • The documentation guidelines are just that: guidelines (although the carrier won’t believe that).

9. “If it isn’t written, it wasn’t done.” • Carriers typically point to Social Security Act Section 1833(e), which they often cite incorrectly as 1833(d)(1)(e) as support for their position.

10. Role of Documentation: The Law • “No payment shall be made to any provider of services or other person under this part unless there has been furnished such information as may be necessary in order to determine the amounts due such provider or other person under this part for the period with respect to which the amounts are being paid or for any prior period.” Social Security Act §1833(e)

11. Role of Documentation: The Cases • Carriers also often cite Anesthesiologists Affiliated v. Sullivan, 941 F.2d 678 (8th Cir. 1991). • In that case, the court rejected the defendant’s argument that even if the clinic made billing errors they were “merely a matter of unartful description of the services it provided.”

12. Role of Documentation: The Cases • This situation is distinguishable from E&M cases because the anesthesiologists’ defense was even if they did not provide services as claimed, they provided other reimbursable services. • In short, that is a case where the bill does not accurately describe the work done. • In most E&M cases, the bill describes the work done, there is simply a lack of documentation.

13. Role of Documentation: The Cases • A much better analysis is United States v. Krizek, 859 F. Supp. 5 (D.D.C 1994), 909 F.Supp. 32 (D.D.C. 1995, rev’d in part and aff’d in part 111 F.3d 934(D.C. Cir. 1997) • The documentation in this case was “seriously deficient.” • The court presumed certain work was done, despite a lack of documentation. • But See U.S. ex rel Semtner v. Medical Consultants, Inc., 170 F.R.D. 490 (1997).

14. Role of Documentation: Interpretation • Common Sense • Fire • Scenario 2 • Regardless of any case law, the regulatory framework is quite clear. • The Code of Federal Regulations contains no general documentation requirements. 42 C.F.R. 4245 requires physicians to furnish “sufficent information.” (There are specfic requirements for teaching services.)

15. Role of Documentation:Guidance from HCFA • The CPT Assistant explains: “it is important to note that these are Guidelines, not a law or rule. Physicians need not modify their record keeping practices at all.” • CPT Assistant Vol. 5, Issue 1, Winter 1995 • HCFA has publicly stated that physicians are not required to use the Documentation Guidelines.

16. Role of Documentation:Guidance from HCFA “Documentation Guidelines for Evaluation and Management Services Questions and Answers These questions and answers have been jointly developed by the Health Care Financing Administration (HCFA) and the American Medical Association (AMA) March 1995. 1. Are these guidelines required? No. Physicians are not required to use these guidelines in documenting their services.

17. Role of Documentation However, it is important to note that all physicians are potentially subject to post payment review. In the event of a review, Medicare carriers will be using these guidelines in helping them to determine/verify that the reported services were actually rendered. Physicians may find the format of the new guidelines convenient to follow and consistent with their current medical record keeping. Their usage will help facilitate communication with the carrier about the services provided, if that becomes necessary. Varying formats of documentation (e.g. SOAP notes) will be accepted by the Medicare carrier, as long as the basic information is discernible.”

18. Role of Documentation “6. How will the guidelines be utilized if I am reviewed by the carrier?If an evaluation and management review is indicated, Carriers will request medical records for specific patients and encounters. The documentation guidelines will be used as a template for that review. If the documentation is not sufficient to support the level of service provided, the Carrier will contact the physician for additional information.”

19. Role of Documentation:Guidance from HCFA • Documentation is relevant only if there is doubt that the services were truly rendered: • “7. What are my chances of being reviewed? • Review of evaluation and management services will only occur if evidence of significant aberrant reporting patterns is detected (i.e., based on national, carrier or specialty profiles). Our reviews are conducted on a ‘focused’ basis--there is no random review.”

20. Role of Documentation:Guidance from HCFA • The MCM confirms that documentation is relevant only when there is doubt services were really provided. MCM § 7103.1(I) says an overpayment exists if the “Physician Does Not Submit Documentation to Substantiate That He Performed Services Billed to Program Where There is Question as toWhether They Were Actually Performed . . .” (bold added). • The MCM does not articulate any documentation obligation, with the exception of the TPR.

21. Role of Documentation:Interpretation • MCM Section 15501.B requires carriers to “instruct physicians to select the code for the service based upon the content of the service.” • Instructions from many carriers specify that physicians, not their office staff, are to select the code. For example, a Travelers Medicare Bulletin read:

22. Role of Documentation:Travelers Medicare Bulletin • “Physician involvement in code selection--E&M Codes were designed to encourage physicians to become more closely involved in coding. Since office staff are not normally able to assess the differences in the amount or intensity of work associated with each encounter and since the physician is responsible (financially and legally) for submitted claims, it is essential that the physician actually code for the services provided.” (Underlining in original.)

23. Role of Documentation:OIG Interpretation • The OIG agrees: “accurate coding is achieved when physicians select codes which consistently fit the services physicians actually provided.” • OIG Report Number OEI-04-92-01060, Physician Use of New Visit Codes, May 1995.

24. Role of Documentation:Interpretation • HCFA has taken a similar position: “Although good documentation can establish the medical necessity and good quality of care for a procedure, it is not necessarily true that poor documentation proves that the medical necessity for a procedure was not present or that poor quality of care was rendered.” • OIG Report Number OEI-07-91-00680, Physician Office Surgery, June 1993, Medicare and Medicaid Guide (CCH) ¶ 41, 497, page 36063.

25. Choosing a Code • Time is irrelevant unless 50% of the time is counseling or coordination of care and that is documented coordination of care. • History, exam, decision making. • Documentation for risk management and billing are related, not identical.

26. Role of Documentation: The Bottom Line • Good advice, but not the law. • Poor documentation increases the difficulty of prevailing in an audit. • As of now, the carriers are instructed to use both the 1995 and the 1997 Guidelines, choosing the result most favorable to the physician. • “If it isn’t a rule, it isn’t an overpayment.”

27. Audit Review Results - What Do They Mean? DocumentationExceeded Code Under coded13% 50 15 0 33 DocumentationSupports Code Correctly coded 76% 30 50 19 33 DocumentationDoes NotSupport Code Over coded 11% 20 35 81 33 Dr. A Dr. B Dr. C Dr. D Dr. E

28. Common Dilemma: Should We Quantify Exposure • The government may use it against you. • It is an effective method of convincing skeptics.

29. Common Dilemma: Should We Quantify Exposure • If you do it, include a disclaimer like “our chart reviews are not audits designed to determine whether we have been overpaid or underpaid. First, they are not a statistically valid sample. Moreover, they only review the documentation, without attempting to determine the amount of work you actually performed. Therefore, these figures are far from scientific.

30. Common Dilemma: Should We Quantify Exposure However, since a Medicare review would base the initial overpayment determination solely on the documentation, these figures give you some idea of how your charts would fare in the first phase of a Medicare review.”

31. Common Dilemma: Retrospective vs. Concurrent Reviews • Consultants/Lawyers argue duty to refund mandates concurrent reviews. • This logic seems flawed. • Anecdotal evidence suggests concurrent reviews are more effective.

32. Scenario 2 • The president of your group is very productive. One day, a patient calls and complains she was billed for a complete physical, but she never removed any clothes. A review of that physician’s appointment book reveals that the physician worked from 9-3, took lunch, and saw 67 patients, 6 of which were billed as comprehensive physicals. The documentation supports all but 5 of the visits. (There is a comprehensive physical documented for the woman who called.)

33. Scenario 3 • One of your physicians likes to perform thorough exams of patients. The carrier medical director feels that the exams could have been more cursory, and denies the exams as being not medically necessary.

34. “The Carrier Has Total Authority to Determine Medical Necessity.” • While carriers like to believe this, many courts have adopted the “treating physician rule.” • The theory is that the patient’s physician is objective. Therefore, the physician’s opinion receives deference. • Medicare’s legislative history supports this argument.

35. “The Carrier Has Total Authority to Determine Medical Necessity.” • “It is a well-settled rule in Social Security Disability cases that the expert medical opinion of a patient’s treating physician is to be accorded deference by the secretary and is binding unless contradicted by substantial evidence… This rule may well apply with even greater force in the context of Medicare reimbursement. The legislative history of the Medicare Statute makes clear the essential role of the attending physician in the statutory scheme; ‘the physician is to be the key figure in determining utilization of health services.’” Gartmann v. Security of the U.S. Department of HHS, 633 F.Supp. 671, 680-681(E.D. N.Y. 1986).

36. “The Carrier Has Total Authority to Determine Medical Necessity.” • A carrier is expected to place “significant reliance on the informed opinion of the treating physician” and to give “extra weight” to the treating physician’s opinion. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).

37. “The Carrier Has Total Authority to Determine Medical Necessity.” • MCM § 7300.5.B forbids carriers from recouping an overpayment on the basis of a lack of medical necessity if a situation is ambiguous enough that the carrier requests its own physician consultant to review whether the services are covered. • This should place the burden of proof on a carrier during an appeal. • It provides a firm ground for challenging the carrier’s arguments that office visits can be denied as not medically necessary.

38. Scenario 4 • You have a new doctor join the staff. The billing staff, recognizing that it takes 6 months to get a provider number, simply use a recently departed physician’s number while waiting for the new number to arrive.

39. “It Is Fraud to Violate the Reassignment.” • Half myth, half truth. • Reassignment in a nutshell: Only the person performing a service can bill for it. • The reassignment rules create exceptions allowing other organizations to bill for a physician’s service. Technically, these exceptions apply only to physicians and suppliers of services.

40. Reassignment Violations Don’t Create an Overpayment • At least one false claim complaint (U.S. ex. rel Semtner v. Medical Consultants, Inc.) has included counts based on reassignment violations. However, that complaint ignores a key fact. • MCM 3060.D says a violation of the reassignment rules does not create an overpayment.

41. MCM 3060.D • “An otherwise correct Medicare payment made to an ineligible recipient under a reassignment or other authorization by the physician or other supplier does not constitute a program overpayment. It does allow revocation of assignment.

42. MCM 3060.D (cont.) • Sanctions may be invoked under §3060.13 against a physician or other supplier to prevent him from executing or continuing in effect such an authorization in the future, but neither the physician or other supplier nor the ineligible recipient is required to repay the Medicare payment.”

43. Reassignment Violations Don’t Create an Overpayment • The question is whether a claim can be false even when it does not result in an overpayment. Courts have differed on that question. • U.S. ex rel. Schumer v. Hughes Aircraft Company, 63 F.3d 1512, 1525 (9th Cir. 1995) and U.S. v. Kensington Hospital, 760 F. Supp. 1120, 1127 (E.D. Pa. 1991) allow the government to penalize claims even without proof of damages.

44. Reassignment Violations Don’t Create an Overpayment • By contrast, Stinson v. Provident Life & Accident Ins. Co., 721 F. Supp. 1247, 1258-59 (S.D. Fla. 1989) and Young-Montenay, Inc. v. U.S., 15 F.3d 1040 (Fed. Cir. 1994) hold that absent damages, false claims penalties are inappropriate. • Even most courts that don’t require specific proof of damages require some impact on the Federal Treasury.

45. Scenario 5 • An oncologist documents a consult as “Ms. Patient was referred to me by Dr. Smith to manage her colon cancer.” At the initial visit, the oncologist begins a course of chemotherapy. The oncologist mails a copy of his chart notes back to Dr. Smith with a brief cover letter thanking Dr. Smith for the referral.

46. “It’s not a consult if you assume care of the problem.” • Key test: is there a transfer of care. A transfer is the shift in responsibility for the patient’s complete care to the receiving physician at the time of the referral, where the receiving physician documents approval of care in advance. • Consultants may initiate diagnostic and therapeutic services after the initial or a subsequent visit.

47. “If the chart says referral, it can’t be a consult.” • The use of the word “referral” should be discouraged, because it is misleading, but its presence does not change the reality of the visit. • Determine whether a physician is seeking an opinion or advice regarding a specific problem.

48. Is it a Consult or Visit? • “A request for a consultation . . . and the need for consultation must be documented in the patient’s medical record.” MCM 15506.D. • A written report must be provided to the referring physician. This can be a letter or communication via the chart. (What about a carbon copy?)

49. Is it a Consult or Visit? • Any subsequent visit (i.e., not something to complete the initial consultation) is an established patient or SH visit. • Can have a consultation within a group if the consultant is in a separate specialty. • Don’t forget -- Need all three key components: history, exam and medical decision-making.

50. Is it a Consult or Visit? • Consultation for pre-operative clearance: Medicare pays the appropriate consultation code for a pre-operative consultation for a new or established patient performed by any physician at the request of a surgeon, as long as all of the requirements for billing the consultation codes are met. • These rules only apply to Medicare. For all other payors, rely on the CPT definition.