Groups lobby to limit 'unwarranted' E/M audits
Groups lobby to limit 'unwarranted' E/M audits
Two MD societies release suggestions to HCFA
A battle is brewing behind the scenes between federal fraud investigators and physicians over an attempt to define the difference between simple coding errors and intentional fraud and abuse.
Under the Health Insurance Portability and Accountability Act of 1996, a physician whose documentation fails to support the level of service submitted for an E/M service code - or who files a claim for services later found to be not medically necessary - is not guilty of fraud or abuse unless he or she acted "in deliberate ignorance" or "reckless disregard" of the truth, say provider advocates.
Given the problems providers have had with the proposed E/M codes, physician groups are concerned that "the Office of Inspector General may target practices without having first established they have acted in reckless disregard or deliberate ignorance of the truth," notes one provider lobbyist.
The fear among physician groups is that innocent providers will feel forced to settle with the OIG rather than risk going to court, where they could be slapped with steep penalties. If convicted, for instance, civil penalties can run up to $10,000 per service, with a maximum of three times the amount that was falsely claimed, plus a possible five-year exclusion from the Medicare and Medicaid programs.
In turn, the AMA has taken the stance that it will do all it can to ensure the federal government does not unfairly target physicians for investigation for fraud and abuse due to inadvertent coding errors that do not meet the law's definition of fraud and abuse.
Possible ways to avoid having physicians unfairly targeted for audits suggested to HCFA and the AMA by a joint American College of Physicians/American Society of Internal Medicine working group include:
1. HCFA and other auditors recognize that any HCFA/AMA documentation guidelines are not sole coding standards, but can be used as a guide. Auditors also should recognize alternative coding guidelines as they are made available.
2. The new documentation guidelines for E/M services should initially be used as an educational tool to assist physicians to better document their E/M services.
The documentation guidelines should not be used in a punitive fashion by carriers, the OIG, or other auditors during an initial review of the physician's claims. Instead, auditors should provide education and feedback to the provider to assist the provider in improving his/her documentation.
3. Claims denial and/or fraud and abuse investigations should only be evoked when a physician failed to improve his or her documentation or when there is a reasonable cause to suspect fraud or abuse.
4. The new documentation guidelines for E/M services must be open to annual improvement, allowing medical societies to suggest guideline changes to the CPT Editorial Panel for acceptance. The use of the new documentation guidelines cannot be retroactively applied to audits of medical records for services rendered prior to the full implementation of the new guidelines.
5. HCFA should increase its educational activities regarding the content and use of the new documentation guidelines by ensuring that its carriers send each physician who provides services to Medicare patients a copy of the guidelines. Physicians must be made aware that the guidelines exist. This means medical societies should not be the primary organizations saddled with this educational responsibility.
6. HCFA should use the information it obtains from medical review of documentation for E/M claims to provide general educational feedback to the physician community on the appropriate use of the new documentation guidelines to physicians for a specified period of time of at least six months before denying payment of claims.
7. HCFA should only use the documentation guidelines to review those physicians whose utilization patterns indicate that they are outliers. For example, a carrier would first have to identify, based on statistical profiles that recognize severity of patient case-mix, that a physician has an unusual pattern of utilization of the E/M codes. For such "outlier" physicians, the carrier could request documentation and compare them with the guidelines. If the physician's documentation does not comply with the guidelines, the physician should be advised of this and be offered educational assistance on how to document better. However, no claims would be denied based on this initial review.
8. The OIG should clearly inform the medical community how they plan to use the documentation guidelines in their review process.
9. The OIG should work with the medical community - including national medical specialty societies - to develop a model compliance plan using HCFA data gathered from medical review activities to further educate physicians on properly documenting evaluation and management services.
10. HCFA and the OIG should acknowledge that inadvertent coding errors and inadequate documentation do not constitute fraud or abuse.
11. HCFA and the OIG should refrain from counting billing errors or inadequate documentation in fraud and abuse estimates, and be careful not to impose sanctions on providers who simply commit honest mistakes that are not fraudulent or abusive behavior.
12. HCFA and AMA should educate physicians more about the legitimate use of time as a factor in documenting their services.
13. If billing entities not under the direct employment of the physician (e.g. billing companies, medical services organizations, physician hospital organizations, etc.) re-code physician-submitted encounter forms, or by policy do coding in lieu of physicians, the physician should not be the target of fraud and abuse investigations or sanctioned for acts or errors not under the physician's control.
14. HCFA and the OIG should work with the AMA and physician specialty societies in an open process to draft, adopt and regularly revise any audit tools and algorithms, as well as teaching programs to educate personnel who will conduct audits for carriers or federal agencies. These tools, algorithms, and related materials should be publicly disclosed and available for an adequate period of notice and comment before they are implemented.
15. In order to ensure that the documentation guidelines are properly implemented and utilized by HCFA and the OIG, this process should be monitored by the appropriate independent government agency, such as the U.S. General Accounting Office.
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