Payer audits: Time for a system overhaul, but stay vigilant and be prepared to mount a robust defense

[This quarterly column is written by Caral Edelberg, CPC, CPMA, CAC, CCS-P, CHC, President of Edelberg Compliance Associates, Baton Rouge, LA.]

The face of health care compliance is rapidly changing. Having spent the past week attending the largest health care compliance gathering in the country, I am convinced that no one is immune to payer audits. I am further convinced that the definitions of “right” and “wrong” are as varied as the number of individuals who practice medicine and monitor health care compliance.

When auditors are incentivized to find something wrong, they will. When rules and regulations are purposely vague, subjective, and left open to interpretation by auditors without medical training or knowledge of the medical specialty areas they are auditing, only those providers with the resources and financial means to stay the course stand a chance of winning audit appeals. To hear governmental representatives tell it, a few bad apples spoil it for the rest. However, the means of identifying the bad apples crushes the rest in the basket right along with them.

A close friend of mine recently coined the phrase “reverse fraud” to describe the witch hunt that payer auditing has become. I am beginning to believe he is correct, and providers need a coalition to protect themselves. The high number of audit findings that are eventually overturned speaks volumes about the lack of objective direction and payer audit errors prevalent in the industry today. However, efforts are underway to improve the situation.

The American Health Information Management Association (AHIMA) is supporting the Medicare Audit Improvement Act of 2013 (HR 1250). According to AHIMA, this bill will make critical changes to the current Recovery Audit Program (RAC) by:

• Establishing a consolidated limit for medical record requests;

• Improving auditor performance by implementing financial penalties and by requiring medical necessity audits to focus on widespread payment errors;

• Improving recovery auditor transparency;

• Allowing denied inpatient claims to be billed as outpatient claims when appropriate; and

• Requiring physician review for Medicare denials.

Getting involved in helping to legislate a solution presents a perfect opportunity for us to refine a system that needs immediate overhaul.

Some pearls gleaned from listening closely to federal agents, auditors, attorneys, and representatives of the payers:

1. Be sure you monitor your practice data and know if you are an outlier in any aspect of your practice. For emergency medicine, we are most vulnerable to overutilization of 99284 and 99285 evaluation and management services. The subjectivity involved in determining each of these levels, specifically medical decision-making, leaves much open to interpretation. You may find that even with comprehensive history, exam, and medical decision-making, you will be challenged on the medical necessity of the service you provide. Documentation should focus on the risk factors, clinical criteria, and medical necessity of the services you provide. This is the “final frontier” payers use to down code records that are documented to a high level of service but don’t contain enough support to establish the same level of medical necessity. For example, why did that suspected ankle sprain in the 90-year-old require a comprehensive history and physical examination? It is pretty obvious to emergency medicine practitioners, but, unbelievably, it is less evident to a payer auditor who has little or no ED experience. Risk factors, details about the mechanism of injury, differential diagnoses, and rationale for the extended ED course help to support medical necessity for a higher level of service when appropriate.

2. Watch your written communication. Stay away from correspondence and directives that base documentation improvement on increasing revenue. Documentation should support the patient’s need for the care provided. Document the details about how that care was provided and ensure that the quality of care never wavers. The federal government can and will subpoena your e-mails, correspondence, employee records, etc. If you have questions within your practice about documentation, coding, and billing issues, talk, don’t e-mail. A recent audit uncovered numerous e-mails in which a disgruntled provider alleged “fraud” when asked by the billing company to document routine services. A fraud investigation may include subpoenas for your hard drives, and investigators will find strings of text that are suspicious or indicate fraudulent billing and use them against you.

3. Be sure you are monitoring the coding and billing performed in your name. If you have questions, address them with the individuals that can provide the highest level of detail. Monitor data through routine reporting of key elements of your practice — E/M distribution compared to your region, spikes or drops in acuity or charges, differences in billing patterns for each provider in your group, and billing for teaching physicians and physicians supervising non-physician practitioners (PAs and NPPs). Any spikes in acuity, charges, and payment are easy for payers to spot, but don’t always mean there is a problem when you can provide the rationale if asked. Payers routinely monitor practice data for individual physicians, so comparing E/M distribution for all physicians in your practice is an important step in identifying and managing outliers.

4. When meeting or telephone conferencing with payer auditors and other representatives, prepare discussions in advance, review data about your practice and region, provide data and information to support any outliers in your practice, and always include a physician representative from your practice as well as someone well versed in coding and billing. Be prepared to defend your case on clinical merits and not revenue expectations. Anecdotally, a federal agent recently admitted that he routinely attends payer audit discussions with providers without identifying himself as an agent, as he feels providers “open up” better to auditors. So, be prepared to present your case with everything you have as though it is your final opportunity to defend your actions.

Prevention is the best solution to health care fraud and abuse. Unfortunately, you may be doing everything right and still be audited. Expect it, prepare for it, defend it, and maintain a hard line defense to protect your practice from the limitations of the system.