Sunday, December 29, 2013

The Government's Response: Notes, Part 3, "Inadequate Documentation"

     The allegation of inadequate documentation is a method to which the government has stooped to turn a flagging case into one that appears to have substance.  Not that it can't work for them:  we have the example of Dr. Natale, a surgeon sent to prison last year for ten months for documentation errors (
     (Shouldn't the government spend its resources going after sham "clinics"--the ones with no patients, no charts, no staff, and no history of treating anyone, the ones that bill and collect from Medicare by using lists of Medicare numbers, the ones that shut down and remove their "earnings" to foreign bank accounts the  moment detection is imminent--instead of working docs who aren't criminals?)
     The feds are after me, now.  So let me address how fraught with problems, and how amenable to attack, doctors are because the government has among its weapons the term "inadequate documentation."
     Medicare stopped paying for patient care in June 2011, immediately after the FBI raided Colasante Clinic.  The clinic was placed on a "100% review," which meant Medicare would reject all my claims for payment until its reviewers look at copies of the patients'  medical charts to confirm that medical services for which I billed had been justified.  The FBI raid must have triggered this action, but the federal prosecutor steadfastly denied, to my attorneys, a role in it.  He seemed to consider it a coincidence.
     My clinic was required, thereafter:  1) to send electronic claims for the work we'd done;  2) await Medicare's formal, written refusal to pay without hard copies of patient records;  3) copy the chart notes for patients who had been treated;  4) send records by certified mail, and accept Medicare's decision as to the legitimacy of the claims.  It so happened, when a response was not forthcoming,  that Medicare's representatives would tell us they "hadn't received the records."  We ended up sending records for the same patients and same services three or more times.  Moreover, the FBI had taken all the charts, so we didn't have them to copy as proof of services prior to June 2011.  This allowed Medicare, in turn, to demand refunds for payments they had already made and were now demanding proof, which was impossible to retrieve.  The clinic was in a chaos of paper, and billing staff outnumbered providers two to one.  The cost of copying and sending records wouldn't even have equaled that of payment for many claims, but the clinic was operating at a loss and had to get paid to survive.
     For more than a year Medicare responded to all the records we sent with form letters denying payment on grounds of "inadequate documentation."  Patients who presented with with chest pain and underwent an EKG were, it seemed inadequately documented.  What was "inadequate," I wanted to know?  There would be a written chart note describing the patient's current complaint and a history of coronary disease;  there was a copy of the EKG with a handwritten interpretation and my signature.  But payment was denied every time, for every service.  On what grounds could Medicare deny payment for hundreds of flu shots when the records we mailed included a signed consent form, an office note, a record of the type and dose of flu serum, the lot number, expiration date, site of administration ("left deltoid, IM"), signature of the nurse who administered it, signature of the provider who authorized it--what else did Medicare's reviewers need as proof that a flu shot had been requested and given?
     You get the picture.  If anyone was "scheming," it was Medicare, and it was the government.  My clinic sent records, tons of them, but we never received payments.  Instead, we were sent denial after denial.   I'll need a lawyer to collect on the $1 million it owes, and I have talked to several.
     Medicare's hugger-mugger bureaucracy allows it to reject any claims it chooses.  The system is impervious to challenge, despite the existence of a formal process for challenging payment decisions.  We went through all the established routes, requesting "reviews" of decisions and attempting to talk with real people, even high-level administrators.  I sent a series of certified letters asking Medicare to send representatives to my clinic to "help us" understand what more it needed as justification for payment.  After several months without a reply, I got a real letter from a real official, who told me Medicare would never send anyone to my clinic to help, and who confirmed that the rejections of payments would remain.  I was not to be paid.  Medicare had decided, I suppose, on the basis of the FBI raid, that I was a criminal.  No due process, no trial, no conviction.  If that's not autocratic, and undemocratic, what is?  My patients suffered the most.  They wanted to pay cash for my services, but Medicare has rules in place that disallow patients from paying anything out of pocket to Medicare providers, and make it a crime for providers to accept payment.
      Medicare's guidelines about documentation are elementary, when it comes to tests.  For instance, to justify an abdominal ultrasound a doctor has to show in the medical record that a patient has any one of dozens of symptoms or conditions.  Sometimes hundreds (or even thousands, in the case of generic lab tests) of possible symptoms or diagnoses will serve as "adequate" rationale for performing a test--and making a note of the symptom in the chart serves as "adequate documentation."  Justification for an EKG could be "chest pain," "heart fluttering," "heartburn," "arm pain," "dizziness," "passing out," or even "abdominal pain."  The doctor's judgment is a key factor in determining the need for an EKG, or any test.  Every test done in my clinics had a justification, in writing, in the medical record.  Did the government make up this accusation?
      Documenting office visits is more complicated than doing so for tests.  Medicare has established two sets of toilsome rules for ascertaining the "level" of an office visit, and hence the payment due.  The first set was introduced in 1993, and the second in 1999.  Providers are permitted to base their charges on either set;  I found the 1993 rules more sensible.
     The 1993 documentation rules require that a provider count bullet points in three separate categories, based on the office note, and bill for the visit based on the sum in each category--payment is based on the lowest of the three sums.
     Here is the breakdown of the chart note, as auditors see it.  Category 1:  chief complaint;  review of systems;  past, medical and social history;  recent medical visits elsewhere;  a rendition of the doctor-patient discussion prior to undergoing an exam;  Category 2:  physical exam;  lab tests;  other diagnostic tests, both in and outside the clinic;  consultative reports.  Category 3:  assessment and plan, which mandates a written discussion of the provider's thought processes and decision-making about the patient's constellation of symptoms, test results and physical findings.   The 1993 analysis of the chart note is based on the SOAP-note formula doctors learn in medical school and therefore is intuitive, although counting bullet-points is not.  There are ten to fourteen bullet points possible for each of the first two categories, but the third one is subject to a judgment call, therefore vulnerable to charges of "inadequate documentation."
     There are forty-seven different office visit codes that may be used to represent most family practice visits:  five new patient visits, based on complexity of visit;  five established patient visits, based on complexity;  six new patient preventive visits, based on age and complexity;  six established patient preventive visits, based on age and complexity;  five new patient house call visits, based on complexity of visit;  five established patient house call visits, based on complexity;  five critical care visits, based on time spent stabilizing very ill patients;  three additional-time codes;  three office-visit without patient present codes; three an after-hours add-on code;  a weekend and holiday add-on code;  and an emergency visit add-on code.  Examples of codes for billing are:  99211, 99212, 99213, 99214, 99215, 99201, 99202, 99203, 99204, 99205, 99391, 99392, 99393, 99394, 99395…etc.  Doctors must know these codes if they hope to represent their office visits properly.  If more than one office visit service is provided on the same day (e.g., a preventive visit done on the same day as a sick visit), the proper "modifiers" have to be affixed to the codes, or the claims will be spit out and left unpaid by the insurance companies.  There are several dozen modifiers.  If nursing home visits are performed, an entirely different set of codes is used to bill for them.
     In addition to these office visit codes there are innumerable codes for "separately identifiable" (Medicare's language) services:  for rectal exams, prostate exams, stool guaiac testing, breast and pelvic exams, Pap smear collection, smoking cessation counseling, self-care teaching, gait training, and more.  One might appreciate these services being included in the physical exam codes, but Medicare has evolved endless subcategories of complexity not unlike the government's IRS formulas, and like most of the government's creations, its Medicare protocols are a regulatory nightmare.
     The "bullet point" system for determining which level office visit to choose is roughly as follows.  If a visit with an established patient included ten items from category one (complaint, review of systems), and eight items from category two (physical exam), and involved a moderate level of complexity in category three, it would be correct to code 99214.  If the same office visit included fewer bullet points in any of the first two categories, one would have to "downcode" to the lowest category--e.g., if only seven bullet items were addressed in category one, even though a complete physical exam with twelve items was done and a high complexity assessment/plan was documented, the billing code must be reduced to  99213.  There is a caveat, however, introduced after family practitioners insisted that their time with the patient should be considered and included as a factor in payment.  It states that if more than 50% of the office visit is spent talking with the patient about medical concerns (not separately coded, like smoking), then the provider is permitted to "upcode" to a higher level charge based on that time.  The documentation requirement is that a notation be made in the chart that the charge is based on time.  It might corroborate the charge to include an estimate of the time spent and topics under discussion at the visit, but these aren't mandatory.
     My providers and I followed these guidelines closely.  We developed a documentation sheet that would correlate with the 1993 Medicare rules so that reviewers could see at a glance how much work was performed in each of the audited categories.  We had a checklist to make it easier for providers to document what they did, without taking their eyes and attention off patients--who, after all, should be the main focus of attention.
     But are they?  Doctors in private practice spend so much time trying to unravel the humbuggery of documentation and coding guidelines that they get distracted from the patient's presence and problems.  The guidelines turn something natural--a doctor/patient encounter--into an artificial construct, which is open to measurement and attack by outsiders, including Medicare, for the purpose of withholding payment.  Documentation has become an obstacle to good patient care, and a staggering and fear-ridden enterprise for physicians.
     Nevertheless, I did understand the guidelines and I followed them--and trained my staff to do the same. Perhaps I understood the guidelines too well.  Maybe the guidelines were never intended to be used in the exacting ways I used them.  I was a little obsessive about making sure we did things right.  I stayed at the clinic past midnight many evenings, counting bullet points, making sure the providers' charges were accurate, correcting codes, and suggesting ways for them to take better care of patients at future visits.  I was their supervisor, and had an ardent sense of responsibility for every patient's well-being.  If I hadn't seen a particular patient and a provider had missed a possible diagnosis, or should have followed a certain algorithm for managing a symptom, I gave instructions for their next patient visit, or had the patient called back so I could I outline a plan of treatment.
     The government caused Medicare to stop paying me, and now may be using this refusal to pay (for services that were necessary, and rendered) as a way of accusing me of inadequate documentation.   But this is a circular allegation, and one that won't hold up once my charts are available for scrutiny.  It didn't hold up, in fact, when an outside consultant from New York did a statistically generated analysis of my office records.  Perhaps the government's prosecutors think they can bank on an accusation of "inadequate documentation" because Medicare's guidelines are so steep and craggy that physicians all across the country can be made to fall into their dizzying, livelihood-threatening, payment-rejecting chasms, whenever a whistleblower or federal prosecutor decides to target them.


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