Thursday, November 15, 2012

Too Little, Too Late?

     New legislation may be in the works to curb Medicare's harassment of doctors.
     Sam Graves, a republican representative from Missouri, introduced legislation in October that may reform the rampant auditing of doctors by Medicare.
     The Medicare Audit Improvement Act of 2012 (House of Representatives 6575) would limit the amount of documentation Medicare can request before paying doctors for medical services.  If the Act is passed in Congress, Medicare would not be allowed to request records for more than 2% of all submitted charges in a prepayment audit, or 500 requests within any 45 days at a medical facility.
     It is unfortunate that this legislation, if passed, would take effect in January 2013--long after my clinic has had to produce copies of records in response to thousands of Medicare requests, and still had not received payment for most patient services.
    For twenty-one months Colasante Clinic has been subjected to a 100% prepayment review by Medicare--no 2% limit for me!-- including many requests for office notes that were confiscated by the FBI in its raid on my clinic, and essentially impossible to get back.
    True, the FBI has put in place a complicated process by which my staff are supposed to be able to request (and pay for) copies of our looted patient charts--sort of like paying ransom to get your kidnapped child back.  But the time limit imposed by Medicare for returning records is 30-45 days, and the FBI and prosecutor couldn't move that fast--especially since Medicare was demanding heaps and heaps of copies--not to mention that the degree of efficiency required in a solo clinic like mine precludes using staff for long periods of time to request and send copies of records.  We were strong-armed, in effect, into relinquishing payment for all those medical visits and services.
     Given how few services were paid by Medicare even after we sent copies of patient records to prove that we provided necessary services, it would have been a waste anyway.
     I guess I should have stopped seeing all Medicare patients forever, after the raid on my clinic.  But I kept assuming that Medicare's auditing professionals would see from all the records we did send, that we were providing necessary services and documenting adequately.  I forgot that Medicare, like other giant corporate-type enterprises with money as the bottom line, would train its auditors to use any means whatsoever to deny me payment.  Not only do they train them, they reward them with a percentage of the money taken back from doctors, or never paid at all.
     The Medicare Audit Improvement Act of 2012 would be step in the right direction for all of us.  I think it just might be the first piece of legislation to limit, rather than expand, the powers of Medicare.  It would penalize Medicare for making errors in payment as a result of faulty audits.  It would prevent the Medicare Secretary from conducting audits in the first place, unless there is evidence of a "widespread payment error rate"--which is set at 40%.
     Since Medicare's auditors seem to be trained to call just about anything in the chart note an "error," then as long as there is no clarity about how documentation errors are defined, Medicare's practice of badgering doctors like me is unlikely to end.  Moreover, Medicare will be able to publish on the internet the results of its audits, denials, and reviews--which could make doctors look like incompetent billers, or even thieves, when in fact the Medicare documentation guidelines themselves are so full of labyrinthine language and contradictions that writing a simple office note becomes a major effort, and is many times more complicated and fraught with risk than analyzing and diagnosing the sick patient about whom the note is being written in the first place.
   One part of the proposed legislation disallows nurses (like the Registered Nurse in my previous note) from issuing denials of payment for medical necessity, unless a physician reviews each denial as well, and signs it.
     It has been my experience that nurses--whatever their wonderful qualities--are not able to determine whether a medical service ordered by a physician is "necessary" or not.  Nurses simply are not trained to think in this way, and don't make decisions based on an understanding of pathophysiology.  Therefore, they are likely to deny payment for many services they can't fathom, especially if they are put in front of piles of documents at a Medicare office desk, and given bonuses for tabulating trivial reasons for not paying for services.
     Medicare's current "recovery program" is aligned to take back money from doctors and hospitals and put it into the depleted Medicare Trust Fund, without considering how this affects the way physicians care for patients, or the treatment of illness.  Physicians who perceive that they will not be paid for services, whether they consider them necessary or not, will simply not provide those services--to the patient's detriment.
     The American Hospital Association (AHA) issued a letter endorsing the proposed Medicare audit restrictions, and pointing out that physicians currently have no real appeal rights under the current system, nor do they have time or cash flow to hire lawyers to oppose the systematic take-backs by Medicare.  Every day I hear about one or two more physicians who have decided to drop Medicare altogether, because of the misguided recovery audit program.
     Vice President Rick Pollack of the AHA writes:  "[Medicare] recovery auditors are paid contingency fee payments, a potential conflict of interest, leading to concerns that they focus on claims and services that have the highest likelihood of error, in order to increase their fees.  Hospitals are experiencing a significant number of inappropriate denials amounting to hundreds of thousands of dollars in unjust recoupment payments for medically necessary care...and hospitals are then successfully overturning RAC denials 75 percent of the time."
     Hospitals may be able to finance disputes with Medicare over denials of payments, but solo doctors certainly can't do this.  Therefore, solo doctors give up that 75 percent (or more) of payments withheld by auditors for services the physicians must have considered necessary, or they wouldn't have ordered them.  These are funds that are unfairly returned to Medicare (if it was ever paid out at all), and become boast-money for the feds all the way up to the president:  Look how much money we took back from doctors and hospitals who were stealing from the American people.  It's an ugly lie that makes big government look good to people who don't know better.
     Pollack summarizes the problem we all face, by insisting that "medical auditors be kept out of medical decisions that should be between patients and their physicians."
     As things currently stand, Medicare auditors face no penalties at all for making mistakes when they deny payments to physicians, or when they say that a physician provided services that weren't "necessary."  In fact, the current auditing system encourages auditors to deny as many services as possible, by giving as a reward a percentage of the "savings" taken back from doctors.  This is a corrupt way to run a government program, it is grossly unfair to doctors, and it should be illegal.
     If the Medicare Audit Improvement Act is passed, auditors will face financial penalties for making errors, and physicians may have some of their due process rights restored, at least when it comes to the problem of infuriating Medicare payment denials.

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