Now that we are quickly approaching the end of 2018, which by the way is so hard to believe, we need to be looking ahead to 2019 and getting our collective selves together to ensure we are prepared for what the new year will have in store. Payers’ aggressive stance on complete and accurate coding and documentation requirements is not slowing down and neither should your efforts to ensure compliance. As with each year, I try to provide you, my faithful reader, with a recap of the year that was and how I think it is going to impact the industry in the New Year!
CMS’ Final Rule
By now we are all familiar with what CMS decided to do in 2019 and beyond with regards to a single payment for New and Established Evaluation and Management Codes. Additionally, while their plan for that payment reduction/increase did not go into effect, it is still on the books for 2021 and as a matter of fact that rule has been finalized.
Below (1-3) are items that did NOT go into effect in 2019:
(1) Reduced payment when E/M office/outpatient visits are furnished on the same day as procedures; this means there will be no 50% reduction for a procedure furnished on the same day as an EM with Modifier 25.
(2) Established separate coding and payment for podiatric E/M visits.
(3) Standardized the allocation of practice expense RVUs for the codes that describe these services.
For CY 2019 and CY 2020, CMS will continue the current coding and payment structure for E/M office/outpatient visits and providers should continue to use either the 1995 or 1997 E/M documentation guidelines to document E/M office/outpatient visits billed to Medicare.
For CY 2019 and beyond, CMS is finalizing the following policies (This information is taken directly from the CMS Fact Sheet 11/2018) with minor modification for the reader:
- For established patient office/outpatient visits, when relevant information is already contained in the medical record, practitioners may choose to focus their documentation on what has changed since the last visit, or on pertinent items that have not changed, and need not re-record the defined list of required elements if there is evidence that the practitioner reviewed the previous information and updated it as needed. Practitioners should still review prior data, update as necessary, and indicate in the medical record that they have done so;
- Additionally, CMS is clarifying that for E/M office/outpatient visits, for new and established patients for visits, practitioners need not re-enter in the medical record information on the patient’s chief complaint and history that has already been entered by ancillary staff or the beneficiary. The practitioner may simply indicate in the medical record that he or she reviewed and verified this information; and
- Removal of potentially duplicative requirements for notations in medical records that may have previously been included in the medical records by residents or other members of the medical team for E/M visits furnished by teaching physicians.
Beginning in CY 2021, CMS will further reduce burden with the implementation of payment, coding, and other documentation changes. Payment for E/M office/outpatient visits will be simplified and payment would vary primarily based on attributes that do not require separate, complex documentation.
Specifically for CY 2021, CMS is finalizing the following policies:
- Reduction in the payment variation for E/M office/outpatient visit levels by paying a single rate for E/M office/outpatient visit levels 2 through 4 for established and new patients while maintaining the payment rate for E/M office/outpatient visit level 5 in order to better account for the care and needs of complex patients;
- Permitting practitioners to choose to document E/M office/outpatient level 2 through 5 visits using medical decision-making or time instead of applying the current 1995 or 1997 E/M documentation guidelines, or alternatively, practitioners could continue using the current framework;
- Beginning in CY 2021, for E/M office/outpatient levels 2 through 5 visits, CMS will allow for flexibility in how visit levels are documented — specifically a choice to use the current framework, MDM, or time. For E/M office/outpatient level 2 through 4 visits, when using MDM or current framework to document the visit, CMS will also apply a minimum supporting documentation standard associated with level 2 visits. For these cases, Medicare would require information to support a level 2 E/M office/outpatient visit code for history, exam and/or medical decision-making;
- When time is used to document, practitioners will document the medical necessity of the visit and that the billing practitioner personally spent the required amount of time face-to-face with the beneficiary;
- Implementation of add-on codes that describe the additional resources inherent in visits for primary care and particular kinds of non-procedural specialized medical care, though they would not be restricted by physician specialty. These codes would only be reportable with E/M office/outpatient level 2 through 4 visits, and their use generally would not impose new per-visit documentation requirements; and
- Adoption of a new “extended visit” add-on code for use only with E/M office/outpatient level 2 through 4 visits to account for the additional resources required when practitioners need to spend extended time with the patient.
CMS believes these policies will allow practitioners greater flexibility to exercise clinical judgment in documentation, so they can focus on what is clinically relevant and medically necessary for the beneficiary.
CMS intends to engage in further discussions with the public to potentially further refine the policies for CY 2021.
Audits in 2018 – CMS and Commercial
As with most years, the payers were very active with hunting down and clawing back monies they considered as overpayment to providers for services rendered their beneficiaries. The thing that bothered me most in 2018 was the often aggressive and sometimes foolish behavior of those prosecuting on behalf of the government and those prosecuting on behalf of the commercial payers. The good news for our clients (law firms we support and clients we represent) is DoctorsManagement was able to significantly reduce or outright eliminate more than $70 million in civil monetary demands and overpayment demands. This is a huge number and it represents clients not only in metropolitan areas. Greater than 60% of the clients we represented were in rural areas of the country, which confirms once again, where you are is of no consequence. Here are just a few highlights:
- $30+ million case dismissed in New Jersey brought by the OIG against a rehabilitation group;
- 30 counts of Fraud and more than $1 million in fines case dismissed in West Virginia brought against a Pain Management and Suboxone Provider;
- $2 million + AHLA case in GA Hospital System vs. Insurance Company – Panel of Judges found in favor of the Plaintiff;
- $2 million + AHLA case in IL Laboratory vs Insurance Company – Insurance Company settled four (4) days prior to hearing;
- Multiple Provider Groups in the Tri-State area targeted by commercial payers totaling more than $3 million in demands each were eliminated.
The fortunate thing for these cases above and those not mentioned is that they had incredible representation by attorneys such as Amanda Waesch and Bryan Meek of Brenna, Manna, and Diamond; Robert Liles of Liles/Parker; Ron Chapman II of Chapman Law Group; Jenna Milaeger of Goldberg Law Group; Lauren O’Donnell and Nicholas Harbist of Blank/Rome; and Thomas Force of the Force Law Firm. These are just a few of the outstanding and brilliant minds we are privileged and honored to support to ensure their clients receive due process and that no stone is left unturned during an investigation/examination of the facts. As I have written about and lectured over the years, to mount a strong defense or pursue litigation against a payer you must have the right team in place; a team that can work together and in synch to decimate the arguments or counter arguments from the other side.
Another program that I would like to talk about introduced by CMS is the Targeted, Probe, and Educate (TPE) Program. Now, unlike other CMS audits, this one has been truly well done by Novitas, First Coast Service Options, and other CMS contractors with which we have gone through the process. As of the date of this article’s publication, we have more than 12 clients going through this process at various stages but none at stage III. I must tip my hat to the director of the program and to all of the outstanding clinical reviewers I have had the pleasure of working with in 2018.
For those of you not familiar with the TPE program, here are a few things you need to know about the program for 2019 when your number is called. The information below (1- 10) comes from the Targeted Probe and Educate (TPE) Q&A’s:
- When performing medical review as part of Targeted Probe and Educate (TPE), Medicare Administrative Contractors (MACs) focus on specific providers/suppliers that bill a particular item or service rather than all providers/suppliers billing a particular item or service. MACs will focus only on providers/suppliers who have the highest claim denial rates or who have billing practices that vary significantly from their peers. TPE involves the review of 20-40 claims per provider/supplier, per item or service. This is considered a round, and the provider/supplier has a total of up to three rounds of review. After each round, providers/suppliers are offered individualized education based on the results of their reviews. Providers/suppliers are also offered individualized education during a round to more efficiently fix simple problems.
- The results of previous Probe and Educate (P&E) programs have been well received by the provider/supplier community. Additionally, positive results of the TPE pilot program included a decrease in appeals as well as an increase in provider education which resulted in decreased denial rates for a vast majority of providers as they progressed through the P&E process. These initial P&E programs, however, included all providers/suppliers that billed a particular service. In an effort to refine the P&E programs, CMS determined that efforts would be better directed toward those providers/suppliers who, based on data analysis, provide the most risk to the Medicare program, and not to all providers/suppliers billing a particular item/service.
- The 20-40 claim sample size is intended to allow the MACs to review enough claims to be representative of how accurately providers/suppliers have the necessary supporting documentation to meet Medicare rules and requirements, while not being overly burdensome.
- At the conclusion of each round of 20-40 reviews, providers/suppliers will be sent a letter detailing the results of the reviews and offering a 1-on-1 education session. MACs will also educate providers/suppliers throughout the TPE review process, when easily resolved errors are identified, helping the provider to avoid additional similar errors later in the process. CMS’ experience has shown that this education process is well received by providers/suppliers and helps to prevent future errors.
- During a one 1-on-1 education session (usually held via teleconference or webinar), the MAC provider outreach and education staff will walk through any errors in the provider/supplier’s 20-40 reviewed claims. Providers/suppliers will have the opportunity to ask questions regarding their claims and the CMS policies that apply to the item/service that was reviewed.
- The error percentage that qualifies a provider/supplier as having a high denial rate varies based on the service/item under review. The Medicare Fee-For-Service improper payment rate for a specific service/item or other data may be used in this determination, and the percentage may vary by MAC. It is important to note that the determination of whether a provider/supplier moves on to additional rounds of review is based upon improvement from round to round, with education being provided during and after each round in order to help the provider/supplier throughout the process.
- The appeals process is unchanged under the TPE process. If a claim denial is appealed and overturned, this would be taken into consideration in subsequent TPE rounds.
- At the conclusion of each round of review, the MAC sends the provider/supplier a letter detailing the results of the 20-40 claims reviewed during that round, including details regarding claim errors. This letter may be sent before or after the final one-on-one educational call.
- The education session in each round is developed based on the review findings from the most recently completed round of reviews and is not the same unless errors found in the reviewed claims are the same. The education will reinforce corrections that should be made for errors that continue to be identified in subsequent rounds.
- CMS is encouraging MACs to use all available sources of data when selecting providers to include in the TPE process. The results of previous P&E programs is one source of data that MACs will use to select providers for review. MACs will also use provider billing and utilization patterns as well as provider specific error rates. Using the results of previous P&E programs may be of benefit to many HHAs who improved throughout the P&E process, as these providers may not require additional reviews.
We have finally arrived at the recommendations portion of this article. Here, I will lay out for you what steps you must take to remain diligent in your efforts to remain compliant and to thwart threats both internally and externally:
- Update all relevant policies and procedures regarding coding, documentation requirements, code of conduct, training and education and add any policies that are missing.
- Perform internal and external reviews of your providers’ coding and documentation. Make sure to do this under Attorney/Client Privilege to ensure you protect the work product to the extent the law allows.
- Provide training and education to all staff on your compliance policies and procedures and have them sign-off that they have received the training and that they were afforded the opportunity to ask questions and only after they were comfortable did they sign the document. I have previously provided an Attestation Form earlier this year to NAMAS members (for a copy please email firstname.lastname@example.org)
- When you receive an audit letter, make sure to reach out to a trusted compliance resource such as DoctorsManagement, NAMAS, or your practice attorney as soon as possible to maximize the time for strategizing and time for reviewing your providers’ documentation and coding.
- Subscribe to a program such as Compliance Risk Analyzer (CRA – https://www.complianceriskanalyzer.com/). Programs such as this will allow you quarterly the ability to understand provider coding patterns and your susceptibility to audit via a true predictive analytic mole that rates your providers on a Risk Scale from 0-100, which ensures you are always in the know about potential volatility with regard to your practice coding pattern(s).
- If you have a $99 compliance plan-in-a-box that you opened the Word document, highlighted the word “Practice” and then changed it to your practice name, printed it and stuck it in a binder and have done nothing to make it specific to your practice; burn it, shred it, or simply destroy it because it is useless to you and will cause you more pain in the long-run. Contract with a competent regulatory firm such as DoctorsManagement to perform a GAP Analysis and customize your compliance program to ensure it works for you.
- Educate, Educate, Educate… Now is the time to be investing in your team (Front Office to Business Office) to ensure they understand coding and documentation requirements for your specialty. Don’t assume your staff will take the time to educate themselves on these and other critical regulatory topics… They won’t! It is up to you, the leader of your organization, to ensure proper training and education has been provided and make sure to document it in your Education Log. I have previously provided one of these to NAMAS members earlier this year (for a copy, please email email@example.com)
- If you see something, say something. If you encounter a problem within your organization, bring it to your supervisor or compliance officer as soon as possible so they can investigate and, if there is found to be a problem, embark on corrective action as soon as possible. When you know something is wrong and you do not report it, you are complicit and could be considered a culprit. No one wants that headache. If you are concerned about retaliation, you shouldn’t be since there are many laws on the books about this type of behavior on the part of corporate officials. If your organization has adopted a compliance plan, odds are they have a non-retaliation policy in place and that will protect you.
- Become of a member of a respected Coding, Auditing, Management, or Compliance organization. Membership has its privileges and rewards. There are some outstanding professional societies out there that you should, depending on your budget and focus, consider joining. These groups include: The National Alliance of Medical Auditing Specialists (NAMAS); National Society of Certified Healthcare Business Consultants (NSCHBC); Medical Group Management Association (MGMA); and Health Care Compliance Association (HCCA). Each of these organizations offers outstanding value and resources for their members.
- Last but not least… take care of yourself and your loved ones. As 2018 comes to an end, we must take time to celebrate those we lost this year and let those still around know how much we love and appreciate them. Whether you have lost contact with someone special or are simply at odds; keep in mind that time is short and none of us are guaranteed a tomorrow, so take advantage of and live your life to the fullest each and every day!
I hope each of you reading this article has had a great year and have an even better one in 2019! Thank you for keeping me relevant over the past 24-years of working in this incredible industry. The journey has been amazing and I wouldn’t trade it for anything… (Well maybe a large lottery jackpot)!
Peace and Love
Sean M. Weiss, CHC, CEMA, CMCO, CPMA, CPC-P, CMPE, CPC
Partner & Vice President of Compliance, DoctorsManagement, LLC