9/30/ OIG Compliance Success. About Your Speaker. The guidance may result in de facto erosion of the attorney-client privilege

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1 1 About Your Speaker OIG Compliance Success PRESENTED BY: SEAN M. WEISS, PARTNER DOCTORSMANAGEMENT, LLC Partner with DoctorsManagement, LLC serving as Vice President and Chief Compliance Officer Currently serve as the Corporate Director of Coding for Adventist Health System Based in Knoxville, TN Argue more than 150 ALJ, ZPIC, RAC and Carrier hearings annually with 98% success rate in eliminating or significantly reducing overpayment demands Serve as compliance consultant for some of the nations largest health systems Published Author Train DOJ, CMS, RAC and ZPIC auditors Former Physician Services Consultant for Columbia/HCA Former Senior Analyst and Compliance Officer for Tenet Health System DOJ Focuses on Individual Accountability 3 Key Elements of the Yates Memorandum 4 On September 9, 2015, the Department of Justice ( DOJ ) issued new guidance on individual accountability for corporate wrongdoing. In the memorandum and an accompanying speech by the Deputy Attorney General Sally Q. Yates, the DOJ announced a new initiative designed to combat corporate misconduct and seek accountability from individuals involved in suspected corporate wrongdoing. While the Yates memorandum provides six specific criteria designed to guide prospective DOJ enforcement, largely against C suite individuals, it offers several significant takeaways and may call for a shift in how companies and their directors carry out their compliance and internal investigation functions. To be eligible for any cooperation credit, corporations must provide to the DOJ all relevant facts about the individuals involved in the corporate misconduct. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires, and declinations as to individuals in such cases must be memorialized. Civil DOJ attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual s ability to pay. Takeaways for Health Care Companies and Their Directors and Counsel 5 The guidance may result in de facto erosion of the attorney-client privilege 6 Cooperation is all or nothing companies cannot receive cooperation credit without identifying culpable individuals and divulging all relevant facts. According to the Yates memorandum, companies can only receive cooperation credit in criminal or civil matters by completely disclos[ing] all relevant facts about individual misconduct regardless of an individual s position, status, or seniority in the company. With this new all or nothing approach, companies cannot receive partial credit for cooperation that stops short of identifying culpable individuals. As noted in the 2008 so-called Filip memorandum issued by a previous Deputy and codified in the U.S. Attorneys Manual, a corporation need not disclose, and prosecutors may not request privileged communications or work product as a condition for the corporation s eligibility to receive cooperation credit. This prohibition expressly includes notes and memoranda from interviews in connection with internal investigations, so long as the corporation timely discloses relevant facts about the putative misconduct. Companies will need to weigh carefully the benefits of this type of voluntary disclosure against the risk of not receiving credit, or that the information will be leveraged by the government in subsequent proceedings. 1

2 Continued Attorney Client Privilege 7 The guidance may create complications for entities seeking to resolve corporate allegations while insulating individuals from liability. 8 While the Filip and Yates memoranda both purport to limit disclosures to strictly non-privileged information, the newer memo leaves the door open to the DOJ s implicitly seeking privileged communications, or a waiver, under the auspices of searching for all relevant facts necessary for a company to earn cooperation credit. While facts may not be subject to privilege, the process in gathering them, as well as internal investigation documents (including interview notes, memoranda, and other work product) may be privileged and would be of particular concern if expected to be discussed, especially if the documents contain statements or information on culpable individuals, or if a corporation s internal investigation aside from privileged documents was largely unfruitful in identifying culpable individuals. This new guidance may complicate a corporation s ability to earn cooperation credit while preserving the attorney-client and work product privileges. Absent extraordinary circumstances or approved departmental policy, the Yates memorandum instructs DOJ attorneys not to in either criminal or civil matters agree to a corporate resolution that includes an agreement to dismiss criminal charges against, or provide immunity for, individual officers or employees. Companies seeking to expressly release certain individuals in connection with finalizing a settlement agreement are expected to face significant hurdles in light of this policy instruction. Further, investigations will likely take longer to complete since DOJ attorneys will now need to justify and receive approval in the event of a declination to pursue individual charges. Board members and executives must remain attuned to corporate activities. 9 Conclusion 10 With this new emphasis on organization-wide criminal and civil individual accountability, board members and other corporate executives need to remain abreast of company activities and initiatives to the extent necessary to be satisfied that the corporation and its key employees are acting in a manner consistent with the law. With the DOJ targeting personnel at the virtual onset of investigations, executive-level personnel may become unwittingly implicated in suspected wrongdoing. Internal documentation demonstrating how executives are working in good faith to operate the company in a manner consistent with applicable law, providing prompt responses and solutions to reported issues, among other things, are components that can be used to de-escalate prosecutorial inquiries in their nascence. Similarly, board-level efforts to evaluate compliance practices must be maintained and well documented. Increasingly, boards of directors may find it worthwhile to engage their own counsel, independent of that representing the company and management, as they consider potential action possibly adverse to the personal interests of company executives. Attempting to up the ante in enforcement, the DOJ s Yates memorandum targets individuals and essentially provides that companies must expose them to individual liability in order to receive any kind of cooperation credit. While the Yates memorandum does not constitute binding law, its dictates nevertheless apply to all pending matters and future investigations of corporate wrongdoing by the federal government. What remains to be seen is what effect this guidance will have on individual prosecutions and corporate resolutions; however, the DOJ s position is unequivocal, and it is clear that, going forward, [t]he rules have just changed. Reference and Citations 11 A Few Things 12 It is not my intent to cover every slide in this presentation I expect to get through approximately 120 and here are the reasons why: George B. Breen, Stuart M. Gerson, and Daniel C. Fundakowski. Epstein Becker Green [1] See Individual Accountability for Corporate Wrongdoing, Sept. 9, [2] See Deputy Attorney General Sally Quillian Yates Delivers Remarks at New York University School of Law Announcing New Policy on Individual Liability in Matters of Corporate Wrongdoing, Sept. 10, [3] U.S. Dep t of Justice, United States Attorneys Manual (1999). [4] Id. (emphasis added). [5] Sally Quillian Yates, Deputy Attorney Gen., U.S. Dep t of Justice, Deputy Attorney General Sally Quillian Yates Delivers Remarks at New York University School of Law Announcing New Policy on Individual Liability in Matters of Corporate Wrongdoing, (Sept. 10, 2015). Slides 2-9 Majority are for reference Some are for entertainment All have a purpose, what it is at the time of this presentation is still to be determined The solutions offered in this presentation are based on our trial by fire with other clients so you don t have to go through the same thing(s) I do not offer opinions as then tend to get me in trouble; therefore I will only offer answers for questions asked where information based on documented authoritative and factual information and can be backed-up in writing; unless you want me to give you my opinion but then you get what you asked for and I can not be held responsible for what comes out of my mouth 2

3 Agenda 13 Defining Medicare Fraud 14 Historical Background Modifier Usage (25 and 59); Creating an Audit Escalation Process; Impact of Medical Necessity and How Medical Decision Making Drives the Level of Service: Policy Provided How to structure effective policies to mitigate risk and ensure profitability Structuring Your OIG Compliance Program Knowingly submitting false statements or making misrepresentations of fact to obtain a federal health care payment for which no entitlement would otherwise exist; Knowingly soliciting, paying, and/or accepting remuneration to induce or reward referrals for items or services reimbursed by Federal health care programs; or Making prohibited referrals for certain designated health services Fraud also includes: Knowingly billing for services not furnished, supplies not provided, or both, including falsifying records to show delivery of such items or billing Medicare for appointments that the patient failed to keep; and Knowingly billing for services at a level of complexity higher than the service actually provided or documented in the file Defining Medicare Abuse 15 Understanding What Constitutes Risk 16 Billing for services that were not medically necessary; Charging excessively for services or supplies; and Misusing codes on a claim, such as up-coding or unbundling codes. Medicare abuse can also expose providers to criminal and civil liability Federal Laws Governing Fraud and Abuse 17 False Claims Act (FCA) 18 False Claims Act (FCA); Anti-Kickback Statute (AKS); Physician Self-Referral Law (Stark Law); Social Security Act; and United States Criminal Code. The FCA protects the government from being overcharged or sold substandard goods or services. The FCA imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal government. The knowing standard includes acting in deliberate ignorance or reckless disregard of the truth related to the claim. Example: A physician submits claims to Medicare for a higher level of medical services than actually provided or that the medical record documents. Penalties: Civil penalties for violating the FCA can include fines of $5,500 $11,000 per false claim and up to three times the amount of damages sustained by the government as a result of the false claims. There is also a criminal FCA statute by which individuals or entities that submit false claims can face criminal penalties. 3

4 Anti-Kickback Statutes (AKS) 19 Stark Law 20 The AKS makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward referrals of items or services reimbursable by a Federal health care program. Example: A provider receives cash or below fair market value rent for medical offices in exchange for referrals. Penalties: Civil penalties for violating the AKS can include fines up to three times the amount of kickback. Criminal penalties for violating the AKS can include fines, imprisonment, or both. If certain types of arrangements satisfy regulatory safe harbors, the AKS will not treat these arrangements as offenses. For more information on safe harbors, visit the United States The Physician Self-Referral Law, often called the Stark Law, prohibits a physician from making a referral for certain designated health services to an entity in which the physician (or member of his or her immediate family) has an ownership/investment interest or with which he or she has a compensation arrangement, unless an exception applies. Example: A provider refers a beneficiary for a designated health service to a business in which the provider has an investment interest. Penalties: Penalties for physicians who violate the Stark Law include fines, repayment of claims, and potential exclusion from participation in all Federal health care programs. (U.S.) Department of Health & Human Services (HHS) Office of Inspector General s (OIG) website at on the OIG website. Criminal Health Care Fraud Statute 21 Exclusions 22 The Criminal Health Care Fraud Statute prohibits knowingly and willfully executing, or attempting to execute, a scheme or artifice in connection with the delivery of or payment for health care benefits, items, or services to: Defraud any health care benefit program; or Obtain (by means of false or fraudulent pretenses, representations, or promises) any of the money or property owned by, or under the custody or control of, any health care benefit program. Example: Several doctors and medical clinics conspire in a coordinated scheme to defraud the Medicare Program by submitting claims for power wheelchairs that were not medically necessary. Penalties: Penalties for violating the Criminal Health Care Fraud Statute may include fines, imprisonment, or both. Under the Exclusion Statute, the OIG must exclude from participation in all Federal health care programs providers and suppliers convicted of: Medicare fraud; Patient abuse or neglect; Felony convictions related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service; or Felony convictions for unlawful manufacture, distribution, prescription, or dispensing of controlled substances. The OIG also has the discretion to impose exclusions on a number of other grounds. Excluded providers cannot participate in Federal health care programs for a designated period. An excluded provider may not bill Federal health care programs (including, but not limited to, Medicare, Medicaid, and State Children s Health Insurance Program [SCHIP]) for services he or she orders or performs. At the end of an exclusion period, an excluded provider must affirmatively seek reinstatement; reinstatement is not automatic. The OIG maintains a list of excluded parties called the List of Excluded Individuals/Entities (LEIE), at on the OIG website. Civil Monetary Penalty Laws (CMPL) 23 Strike Force 2014 Actions 24 Under the CMPL, Civil Monetary Penalties (CMPs) apply for a variety of conduct. The CMPL authorizes penalties of up to $50,000 per violation, and assessments of up to three times the amount claimed for each item or service, or up to three times the amount of remuneration offered, paid, solicited, or received. Violations that may give rise to CMPs include: Presenting a claim that you know or should know is for an item or service not provided as claimed or that is false and fraudulent; Presenting a claim that you know or should know is for an item or service for which Medicare will not pay; and Violating the AKS. As of June 2014: 1,100 Criminal Actions 1687 Indictments $1,354,056,211 Recoupments There are now 9 Strike Force Offices in the US LA, Brooklyn, Detroit, Chicago, Dallas, Houston, St. Louis, Tampa and Miami 4

5 Latest Strike Force Enforcement Actions 25 Strike Force 26 January 14, 2015; U.S. Department of Justice Michigan Physician Sentenced to 15 Months in Prison for her Role in a $2.1 Million Medicare Fraud Scheme January 12, 2014; U.S. Department of Justice Physician Owners of Mental Health Clinic Sentenced for $97 Million Medicare Fraud Scheme December 3, 2014; U.S. Department of Justice Owners of Orlando Health Care Clinic Charged with $3 Million Medicare Fraud Scheme November 26, 2014; U.S. Attorney; Southern District of Florida Miami Home Health Agency Owner and Operator Pleads Guilty for Role in Multiple Medicare Fraud Schemes November 19, 2014; U.S. Attorney; Southern District of Florida Eleven Individuals Charged for Their Role in Medicare and Medicaid Fraud Scheme Executed in Florida, Nicaragua, and the Dominican Republic November 14, 2014; U.S. Department of Justice Michigan Physician Pleads Guilty for Role in $19 Million Medicare Fraud Scheme November 14, 2014; U.S. Department of Justice Two Arrested in Illegal Kickbacks Case Involving Clinical Laboratory Testing November 13, 2014; U.S. Department of Justice Five Florida Residents Plead Guilty for Roles in $6 Million Miami Home Health Care Fraud Scheme November 13, 2014; U.S. Department of Justice Owner of Miami Home Health Company Pleads Guilty for Role in $30 Million Health Care Fraud Scheme November 13, 2014; U.S. Attorney; Eastern District of Michigan Owners of Detroit Area Home Health Agency Plead Guilty to Health Care Fraud Conspiracy November 5, 2014; U.S. Department of Justice Detroit Area Man Arrested in Connection with Home Health Care Fraud Scheme November 5, 2014; U.S. Department of Justice Owner and Administrator of Two Miami Home Health Companies Sentenced to 80 Months in Prison for $74 Strike Force accomplishments from cases prosecuted in all nine areas during FY 2014 include9: 165 indictments, informations and complaints involving charges filed against 353 defendants who allegedly collectively billed the Medicare program approximately $830 million; 304 guilty pleas negotiated and 38 jury trials litigated, with guilty verdicts against 41 defendants; and Imprisonment for 248 defendants sentenced during the fiscal year, averaging more than 50 months of incarceration. In the seven and a half years since its inception, Strike Force prosecutors filed more than 963 cases charging more than 2,097 defendants who collectively billed the Medicare program The accomplishments figures presented in the bullets include all reported Strike force cases handled by DOJ Criminal Division attorneys and AUSAs in the respective USAOs during FY 2014 More than $6.5 billion; 1,443 defendants pleaded guilty and 191 others were convicted in jury trials; and 1,197 defendants were sentenced to imprisonment for an average term of approximately Cases in NY 27 Cases in NY 28 Brooklyn (Eastern District of New York) In November 2013, the mastermind of a $77 million fraud scheme was sentenced to 15 years in prison. From 2005 to 2010, the defendant owned and operated a clinic in Brooklyn that billed Medicare under three corporate names: Bay Medical Care PC, SVS Wellcare Medical PLLC and SZS Medical Care PLLC (collectively, Bay Medical Clinic). The defendant and her employees at the Bay Medical Clinic paid cash kickbacks to Medicare beneficiaries and used the beneficiaries names to bill Medicare for more than $77 million in services that were medically unnecessary or never provided. The defendants billed Medicare for a wide variety of fraudulent medical services and procedures, including physician office visits, physical therapy and diagnostic tests. In April 2014, the office managers at URI Medical Service, PC, was sentenced to 12 months in jail and, along with the office manager of Sarang Medical, PC, was ordered to pay $5.9 million in joint and several restitution. URI and Sarang purportedly provided physical therapy, electric stimulation treatment, and other medical services to Medicare beneficiaries. According to the indictment, from approximately March 2007 through May 2012, the office managers and their co-conspirators artificially increased demand for medical services by providing Medicare beneficiaries with free goods and services, such as massages, facials, lunches, gift cards, and recreational classes. They then submitted false claims to Medicare for medical services, such as office visits, physical therapy, lesion destruction, and electrical stimulation treatment, which were medically unnecessary, not provided, and otherwise did not qualify for reimbursement. Once the beneficiaries arrived at the clinics, they were required to give their Medicare numbers to staff and to see a doctor, regardless of medical need, in order to receive the free, nonmedical inducements. The office managers acted as patient recruiters and were paid for referring beneficiaries to the clinics. Both pleaded guilty to conspiracy to commit health care fraud and both were excluded from participating in any federal health care programs; the URI office manager was excluded for 18 years and the Sarang office manager was excluded for 10 years. In May 2014, two individuals were indicted and charged with health care fraud, conspiracy to commit health care fraud, and illegal use of individually identifiable health information. Since 2008, the defendants allegedly engaged in a long-running scheme to submit false claims for DME to a government-sponsored organization for managed care in New York. The scheme involved the defendants using information for approved, in network equipment providers to obtain approvals that were then used to secure payments on behalf of sham companies that the defendants set up. Companies believed to have been involved in the scheme submitted fraudulent claims to the managed care organization in amounts over $13 million since 2008; the organization paid out over $4 million in reimbursement of those claims. In May 2014, two defendants were indicted and charged with conspiracy to commit health care fraud, making false statements relating to a health care matter, falsification of records in a federal investigation and money laundering. Between approximately October 2009 and August 2012, the defendants owned and operated a series of medical clinics that were used to submit more than $14.3 million in Medicare claims, of which $5.3 million was paid. The indictment alleges that the majority of the claims were fraudulent because they were for services such as vitamin infusions, physical and occupational therapy, and diagnostic tests that were medically unnecessary, not provided, or otherwise not reimbursable. The defendants also allegedly laundered the proceeds of the fraudulent scheme and falsified documents, which they then provided to Medicare auditors and FBI in order to conceal the fraudulent scheme. Monetary Amounts Recouped In Full 29 OIG Enforcement Activity 30 During Fiscal Year (FY) 2014, the Federal government won or negotiated over $2.3 billion in health care fraud judgments and settlements, and it attained additional administrative impositions in health care fraud cases and proceedings. As a result of these efforts, as well as those of preceding years, in FY 2014, approximately $3.3 billion returned to the Federal government or paid to private persons. Of this $3.3 billion, the Medicare Trust Funds received transfers of approximately $1.9 billion during this period, and over $523 million in Federal Medicaid money was similarly transferred separately to the Treasury as a result of these efforts. The HCFAC account has returned over $27.8 billion to the Medicare Trust Funds since the inception of the Program in 1997 In FY 2014, the Department of Justice (DOJ) opened 924 new criminal health care fraud investigations. Federal prosecutors filed criminal charges in 496 cases involving 805 defendants. A total of 734 defendants were convicted of health care fraud-related crimes during the year. Also in FY 2014, DOJ opened 782 new civil health care fraud investigations and had 957 civil health care fraud matters pending at the end of the fiscal year. In FY 2014, the FBI investigative efforts resulted in over 605 operational disruptions of criminal fraud organizations and the dismantlement of the criminal hierarchy of more than 142 health care fraud criminal enterprises. In FY 2014, HHS Office of Inspector General (HHS-OIG) investigations resulted in 867 criminal actions against individuals or entities that engaged in crimes related to Medicare and Medicaid, and 529 civil actions, which include false claims and unjust-enrichment lawsuits filed in Federal district court, civil monetary penalties (CMP) settlements, and administrative recoveries related to provider selfdisclosure matters. 5

6 OIG Enforcement Activity Continued HHS-OIG also excluded 4,017 individuals and entities from participation in Medicare, Medicaid, and other federal health care programs. Among these were exclusions based on criminal convictions for crimes related to Medicare and Medicaid (1,310) or to other health care programs (432), for patient abuse or neglect (189), and as a result of licensure revocations (1,744). HHS-OIG also issued numerous audits and evaluations with recommendations that, when implemented, would correct program vulnerabilities and save program funds. Sequestration: Due to sequestration of mandatory funding in 2014, there were fewer resources for DOJ, FBI, HHS, and HHS- OIG to fight fraud and abuses against Medicare, Medicaid, and other health care programs. A total of $31.5 million was sequestered from the HCFAC program in FY 2014, for a combined total of $62.1 million in the past two years. Physician 33 Physician 34 In November 2013, a cardiologist was sentenced to six-and-a-half years in prison and ordered to pay $19 million in restitution after pleading guilty to charges of attempt and conspiracy to commit health care fraud and false or fraudulent claims. According to published reports, the physician-owner of two companies spent more than $6 million in advertising on Spanishlanguage media to entice patients to visit his clinics. The New Jersey and New York clinics, Cardio Med Services LLC (Cardio- Med) and Comprehensive Health care & Medical Services LLC (Comprehensive), purported to provide cardiology, internal medicine, and other medical services to Medicare and Medicaid beneficiaries. During the visits, the physician-owner ordered and performed essentially the same diagnostic tests for nearly all the patients he treated, regardless of their symptoms. He also instructed his non-physician employees to order and perform diagnostic tests for patients of other doctors working at his companies, even though he had not examined those patients and the other physicians had not ordered the unnecessary tests. He admitted that he falsified patient charts and falsely diagnosed a majority of his patients with coronary artery disease and debilitating and inoperable angina to justify prescribing and administering unnecessary treatment, therefore subjecting them to serious risk of injury or death. In January 2014, the physicians group Hematology and Oncology Center PLLC of Somerset, Kentucky, its oncologist owner, and its office manager agreed to pay $2 million to resolve civil FCA allegations that they purchased non-fda approved chemotherapy drugs at steep discounts from a foreign distributor known as Quality Specialty Products and submitted or caused the submission of false claims to Medicare for those drugs. The practice group and office manager pleaded guilty to misdemeanors under the FDCA and agreed to a voluntary exclusion from the Medicare program for six years. In March 2014, a licensed psychiatrist formerly employed by the Department of Veterans Affairs was sentenced to a year-anda-half in jail and was ordered to pay $1.2 million in restitution. According to court documents, the psychiatrist billed Medicare approximately $4 million for home treatment of beneficiaries. However, many of those visits never occurred. On a number of occasions, he submitted claims to Medicare for home medical visits at locations within New York City, even though he was physically located in China at the time of these purported home visits. Additionally, he submitted claims to Medicare for 55 home medical visits to beneficiaries who were hospitalized on the date of the purported visits. In addition to the sentencing, the Copyright psychiatrist 2015 DoctorsManagement, was excluded LLC from participating in any federal health care programs for 15 years In April 2014, a doctor of osteopathic medicine who owned the dermatological practices AGS, Inc. and Central West Virginia Dermatology Associates, Inc., was sentenced to eight years and three months of incarceration and was ordered to pay $265,330 in restitution and a $2.6 million fine. Between May 1998 and June 2004, the doctor allegedly submitted false claims to Medicare and Medicaid and, as a result, he reached a settlement with the United States in August 2005 that included his voluntary exclusion from all federal health care programs for 10 years. According to the government, after his voluntary exclusion the doctor arranged an elaborate scheme to hide his involvement with his dermatology clinics and continue billing and receiving payment from Medicare and Medicaid, which included sham sales of the clinics. He later lied in Federal bankruptcy court, lied to a Federal investigator, stole the identity of another physician, and obstructed an IRS investigation. The doctor was convicted by a jury on charges of health care fraud, bankruptcy fraud, identity theft, and the filing of false tax returns. In April 2014, Hope Cancer Institute, Kansas-based practice, and its oncologist owner agreed to pay $2.95 million to settle civil FCA allegations that they submitted false claims to federal health care programs for the administration of the cancer drugs Rituxan, Avastin, and Taxotere at higher dosages than were actually provided to the beneficiaries. As part of the settlement, the doctor agreed to a ten-year exclusion from all federal health care programs. In June 2014, a North Carolina physician pled guilty to criminal health care fraud and tax evasion and agreed to pay $6.2 million to settle civil FCA allegations that he submitted claims to federal health care programs for medically unnecessary tests and procedures and for services never provided. The government alleged that the physician and his medical practice submitted claims for echocardiograms, allergy tests, hemorrhoidectomies, Enhanced External Counterpulsation (EECP) therapy and other tests and procedures that were never provided or, if provided, were not medically necessary. Hospital Fraud 35 Hospital Fraud 36 Fifty-five hospitals located throughout 21 states paid a total of over $34 million to resolve FCA liability related to claims for kyphoplasty, a minimally-invasive procedure used to treat spinal compression fractures. In many cases, kyphoplasty can be performed safely and effectively as an outpatient procedure without any need for a more costly inpatient hospital admission. The settlements resolve allegations that the hospitals knowingly billed Medicare for medically unnecessary admissions for kyphoplasty procedures in order to increase their profits and circumvent lower outpatient reimbursement rates. In August 2013, Shands Teaching Hospital & Clinics Inc., Shands Jacksonville Medical Center Inc. and Shands Jacksonville Healthcare Inc. (collectively, Shands Healthcare), paid the government and the state of Florida a total of $26 million to settle FCA allegations that six of its health care facilities submitted false claims to Medicare, Medicaid and other federal health care programs for inpatient procedures that should have been billed as outpatient services. In April 2013, Intermountain Health Care Inc. paid $25.5 million to settle claims that it violated the Stark Statute and the FCA by engaging in improper financial relationships with referring physicians. These improper financial relationships included employment agreements under which the physicians received bonuses that improperly took into account the value of some of their patient referrals and office leases and compensation arrangements between Intermountain and referring physicians that violated other requirements of the Stark Statute. These issues were disclosed to the government by Intermountain. In July 2013, Sound Inpatient Physicians Inc., a nationwide hospitalist firm, paid $14.5 million to settle allegations that it overbilled Medicare and other federal health care programs. The agreement resolves allegations that the firm upcoded Evaluation & Management services rendered to inpatients. The parent company bills on behalf of the providers for the professional services, while the physicians are being paid a flat salary. In May 2013, Adventist Health System/West, dba Adventist Health, and its affiliated hospital, White Memorial Medical Center, paid $14.1 million to settle FCA allegations that Adventist Health violated the Anti-Kickback Statute and Stark Statute by improperly compensating physicians who referred patients to the White Memorial facility by transferring assets, including medical and non-medical supplies and inventory, at less than fair market value. In January 2013, Cooper University Hospital agreed to pay $12.5 million to settle allegations that it created a fraudulent advisory board in an effort to induce referrals to its cardiology department. The hospital recruited local outside primary care physicians and non-invasive cardiologists to serve on a sham advisory board. The physicians were paid approximately $18,000 a year to attend four meetings. However, these meetings were largely marketing affairs and there was little evidence of any services being provided by the physician members. In addition to the monetary settlement, the hospital enacted and agreed to maintain a number of corporate reforms designed to enhance accountability, training, and other aspects of its compliance operations. 6

7 Hospital Fraud 37 Hospital Fraud 38 In June 2013, the Chief Financial Officer of a hospital in California was sentenced to 8 months of home confinement and ordered to pay $10.6 million in restitution after pleading guilty to charges of conspiracy to pay kickbacks for patient referrals and other related crimes. According to court documents, the CFO oversaw the issuance of checks to companies owned by co-conspirators for the referral of recruited beneficiaries admitted to the hospital. The hospital executed sham consultant contracts with these companies to conceal the kickback payments. The hospital then billed Medicare and Medi-Cal for hospital stays and related services provided to the recruited beneficiaries, including admissions that were medically unnecessary. Medicare and Medicaid paid the hospital more than $10.5 million in reimbursement for these false claims. In November 2012, Morton Plant Health Care, Inc. and its affiliated hospitals, all part of the BayCare Health System, paid the United States $10.1 million to settle FCA allegations of improperly billing for certain interventional cardiac and vascular procedures as inpatient care when those services should have been billed as less costly outpatient care or as observational status. In November 2012, Freeman Health System paid $9.3 million to resolve FCA allegations that it knowingly provided incentive pay to physicians in a manner that violated the Stark Law. In particular, the government alleged that Freeman provided incentive pay to 70 physicians employed at clinics operated by the health system based on the revenue generated by the physicians referrals for certain diagnostic testing and other services performed at the clinic. In July 2013, Dubuis Health System and Southern Crescent Hospital for Specialty Care, Inc. (Southern Crescent) paid $8 million to settle allegations that they knowingly kept patients hospitalized beyond the time considered to be medically necessary in order to increase their Medicare reimbursement and to maintain Southern Crescent s classification as a long-term acute care facility. In July 2013, Beth Israel Deaconess Medical Center (BIDMC) paid $5.3 million to settle civil allegations that it violated the FCA by improperly admitting patients and then billing for inpatient stays with respect to services that should have been provided in an outpatient setting, resulting in overpayment by Medicare for unnecessary hospital stays. In February 2013, St. Joseph s Medical Center paid $4.9 million to resolve the hospital s civil liability to the United States under the FCA for admitting patients to the hospital unnecessarily from 2007 to More specifically, the hospital voluntarily disclosed that it admitted patients for short stays (typically one or two days) that were not warranted by the patient's medical condition, and thereby generated a larger reimbursement than was medically necessary for each patient. In April 2013, St. Vincent Healthcare and Holy Rosary Healthcare (collectively, the Hospitals) agreed to pay $3.9 million to resolve allegations under the Stark law. These Montana Hospitals self-disclosed that, between July 2003 and December 2010, they paid certain employed physicians incentive compensation that was based, in part, on the volume or value of referrals made to the Hospitals. More specifically, the physician formula for compensation included inappropriate revenue related to such designated health services as EKG and EMG services at the Hospitals. In addition, the Hospitals identified numerous arrangements or contracts it held with independent physicians or physician groups that the Government contended violated the Stark Law. These arrangements or contracts included violations relative to expired or unsigned contracts, unwritten agreements, untimely payment of rent under lease terms, and potential deviations from fair market value rental charges. In January 2013, EMH Regional Medical Center (EMH) paid $3.8 million and North Ohio Heart Center Inc. (NOHC) paid $541,870 to resolve allegations that they submitted false claims for medically unnecessary cardiac procedures. In particular, the government alleged that between 2001 and 2006, EMH and NOHC performed angioplasty and stent placement procedures on patients who had heart disease but whose blood vessels were not sufficiently occluded to require the particular procedures at issue. Hospital Fraud 39 Physician Fraud 40 In July 2013, University Medical Center (UMC), doing business as University of Louisville Hospital, paid $2.8 million to settle FCA allegations that it may have violated federal law concerning the relationships it had with certain health care providers. University of Louisville Hospital operates a separate fast track unit within the emergency department to address non-urgent care. This in-house immediate care center, FirstCare, is staffed by UMC-employed physician assistants (PAs) and nurse practitioners (NPs) under the direction of the Department of Emergency Medicine physicians who in turn operate as University Emergency Medicine Associates (UEMA). From January 1, 2006 through December 31, 2010, the salaries and benefits paid to FirstCare PAs and NPs were claimed on UMC cost reports filed with Medicare. At the same time, UEMA physicians generally treated the FirstCare PAs and NPs as their own employees including, to various degrees, billing and collecting from Medicare for their professional services. The United States contended that UMC provided an improper benefit to UEMA in violation of the FCA and other federal law. In October 2012, Wyoming Medical Center (WMC) paid $2.7 million arising from the alleged submission of fraudulent claims to Medicare. More specifically, the settlement resolved allegations that WMC submitted higher-paying inpatient reimbursement claims to Medicare for (a) procedures that had been performed in an outpatient setting, (b) hospital stays where there was no record of a physician ordering inpatient-level care, and (c) services provided to patients who did not meet requirements for inpatient admission. The United States also settled allegations that WMC prolonged inpatient hospital admissions without medical necessity in order to qualify patients for Medicare-covered, long-term care at a skilled nursing facility. In addition to the settlement agreement, WMC agreed to enter into a 5- year CIA with HHS-OIG. In February 2013, an individual and his two companies (identified as Wasserman), paid $26.1 million to resolve FCA allegations that he and his company violated the Anti- Kickback Statute by accepting free pathology services from Tampa Pathology Lab ( TPL ) for biopsy specimens they sent to the lab. The government also alleged that Wasserman billed Medicare for medically unnecessary skin repair procedures and for evaluation and management services that he did not perform. In addition to paying the settlement amount, the individual agreed to a five-year voluntary exclusion from participation in any federal health care programs as part of the resolution. In July 2013, the United States District Court for the District of Columbia granted the United States motion for partial summary judgment against a Doctor and his two companies, Ishtiaq Malik M.D., P.C. and Advanced Nuclear Diagnostics, for submitting false nuclear cardiology claims to federal and state health care programs and awarded over $17 million in damages and penalties. The United States alleged that the doctor and his companies violated the FCA by double-billing multi-day nuclear stress test studies, billed for services that were already included in the payment for these tests, and billing for services not rendered. In December 2012, a California physician was sentenced for his role in a hospital fraud scheme to 1 year and 1 day in prison and ordered to pay $11 million in restitution. He previously pleaded guilty to conspiracy to receive kickbacks. According to court documents, Tustin Hospital paid marketers to recruit patients and drive them from Skid Row around Los Angeles, past other hospitals, to be admitted to its facility. The physician admitted these patients and then he and the hospital billed Medicare for in- patient services, even if the services were not medically necessary. The physician admitted that many of the recruited patients had been coached to recite false symptoms, and that he falsified medical records to justify the admission of some patients. On average, he admitted approximately 60 patients per month to the hospital, even though some did not require hospitalization. Physician Fraud 41 Physician Fraud 42 In July 2013, Jackson Cardiology Associates (JCA) and its owner paid $4 million to resolve FCA allegations that JCA s owner and certain JCA cardiologists performed medically inappropriate cardiac procedures, including invasive catheterizations at Allegiance Health. Specifically, the government alleged that JCA s owner ordered catheterizations for patients based on findings from nuclear stress tests that he improperly read as positive. The government found that three-quarters of these patients had no significant heart blockages. These catheterizations involve snaking a hollow tube into the heart through an incision in the patient s groin. In August 2013, Imagimed LLC and its former owners and former chief radiologist paid $3.57 million to resolve FCA allegations that they submitted false claims for magnetic resonance imaging (MRI) services. In particular, the government alleged that the defendants submitted claims to Medicare, Medicaid and TRICARE for MRI scans performed with a contrast dye without the direct supervision of a qualified physician. Since a potential adverse side effect of contrast dye is anaphylactic shock, federal regulations require that a physician supervise the administration of contrast dye when it is used for an MRI. The government also alleged that Imagimed submitted claims for services referred to Imagimed by physicians with whom Imagimed had improper financial relationships in violation of the Stark Law and the Anti-Kickback Statute. In June, 2013, an oncologist and his wife paid $3.1 million to resolve FCA allegations that they jointly defrauded Medicare, Tricare, and other federal programs by overbilling for medication and services and/or billing for medication and services not provided. In December 2012, an Illinois physician was sentenced to 10 years in prison and ordered to pay $2.9 million in restitution after being convicted on charges of health care fraud and fraud of visas, permits, or other documents. The physician was the manager and co-owner of House Call Physicians, LLC, a suburban home health care provider. According to court documents, the physician directed House Call Physicians to bill Medicare for: (a) services that were not medically necessary, including uncomfortable nerve conduction tests; (b) services purportedly provided by physicians when, in fact, they were performed by physician assistants; and (c) services performed by a podiatrist with a suspended license. Two other defendants were sentenced to 6 months and 18 months of incarceration, respectively. The two were also, respectively, fined $20,000 and ordered to pay $791,095 in restitution. After completing his sentence, the physician, a Canadian citizen who was not authorized to work in the United States, will be surrendered to the Department of Homeland Security for a deportability determination. In November 2012, a Michigan physician was sentenced to 5 years of incarceration and ordered to pay $2.9 million in restitution after being convicted on charges of health care fraud and conspiracy to commit health care fraud. The physician was an obstetrician/gynecologist who served as a general practitioner for three clinics operating in the same location: Blessed Medical Clinic, Alpha and Omega Medical Clinic, and Manuel Medical Clinic. According to evidence presented at trial, the physician joined a conspiracy to bill Medicare for medically unnecessary neurological tests. Some of the tests involved sending an electrical current through the arms and legs of the patients. Clinic employees, who lacked any meaningful training, administered the diagnostic tests. Patients were recruited with prescriptions for controlled substances, cash payments, and fast food. 7

8 Physician Fraud 43 Civil Monetary Penalties (CMPs) 44 In July 2013, Northwestern University agreed to pay $2.93 million to resolve FCA allegations of grant fraud by one of its cancercenter physician researchers. The physician was the principal investigator on several National Institutes of Health (NIH) grants related to cancer research. Instead of using the funds as the grants required, he allegedly spent the money on family trips, meals, and hotels for himself and friends. He also charged consulting fees to the grants which went to unqualified friends and family members, including his brother and cousin. Northwestern additionally allowed the researcher to subcontract work under the grants without following NIH guidelines. A civil suit against the individual doctor is proceeding. In April 2013, the owner of Winnetka Medical Group, a cosmetic health care clinic, pled guilty to health care fraud and was sentenced to 42 months in prison and was ordered to make full restitution. The defendant billed Medicare, Anthem Blue Cross, and Blue Shield of California for three unusual and high-paying procedures, even though he lacked the equipment necessary to perform them. The defendant even billed Medicare for 26 patients who were already dead on the date he claimed to have performed the procedures. In total, the defendant submitted approximately $7.5 million in fraudulent claims to Medicare and was paid over $3 million. In May 2013, Las Vegas Urology, LLP agreed to pay $1 million to settle allegations that it submitted false claims to federal health care programs. An investigation of the practice s billing and medical records showed that it had billed for intra-abdominal pressuretesting that had never been performed and upcoded its billings for cystourethroscopies, consultations, and ultrasound tests. In addition to the settlement agreement, the practice has entered into a three-year CIA with HHS/OIG. In January 2013, a Missouri psychotherapist was sentenced to 36 months imprisonment and ordered to pay $1 million in restitution for health care fraud. The defendant also agreed to surrender his psychotherapy license. Between September 17, 2008 and April 5, 2012, the defendant submitted Medicare and Medicaid claims for daily or near daily psychotherapy services to 19 beneficiaries for which he was paid $1.3 million. Although the defendant provided some services for most of the beneficiaries, he admitted that he never saw them more than once a week. The defendant further admitted that he forged, or caused another person to forge, the signatures of five the beneficiaries on patient sign-in sheets in order to obtain payments South Carolina In January 2013, Heritage Medical Partners agreed to pay $170,260 to resolve allegations that, from April 2008 through December 2008, Heritage violated the CMP Law by requesting that its 5,474 patients who were Medicare beneficiaries pay a $50 administrative fee. Heritage told these Medicare beneficiaries that the Federal Government (Medicare) continue[s] to increase the amount of paperwork we re required to fill out to assure you receive the benefits to which you re entitled and that Heritage instituted the fee as partial compensation for the time the physician and staff spend assuring [patients] receive prescription renewals quickly [and] maximum benefits from Medicare... HHS/OIG alleged that a portion of the $50 constituted payment for Medicare services that are covered and reimbursed by Medicare and constituted a request for payment other than copayments or coinsurance, which violated Medicare assignment regulations. Heritage agreed to return the money it collected to patients and pay a penalty to HHS/OIG. Illinois In November 2012, ForTec Medical, Inc.; ForTec Litho, LLC; ForTec Litho Florida, LLC; ForTec Litho Central, LLC; and ForTec Litho NY, LLC (collectively, ForTec), agreed to pay $126,249 to resolve their liability under the CMPL for offering remuneration in exchange for referrals. From 2006 through 2011, ForTec allegedly provided customers, including physicians, with an all-expense paid trip to the Masters Golf Tournament in Augusta, Georgia. Invitations to these trips were extended to physicians based on their use of ForTec s products and services and the potential for additional business from those physicians. New Mexico In December 2012, University of New Mexico Hospital (UNMH) agreed to pay $30,000 to resolve its liability under the patient dumping statute. UNMH allegedly failed to provide an adequate medical screening examination and failed to stabilize a suicidal patient when it did not prevent the suicidal patient from hanging himself in the hospital. The patient came to the emergency room experiencing suicidal ideations and was placed in an observation room, but he was not provided a medical screening examination for 7 hours. During this time, the patient used his shoelaces to hang himself from an air vent in the observation room. The patient was found still alive by a security employee. UNMH then treated and admitted the patient. UNMH self-reported the incident to the State. CMPs 45 Modifier 59 Change Illinois In October 2012, University of Chicago Medical Center (UCMC) agreed to pay $50,000 to resolve its liability under the patient dumping statute. UCMC allegedly failed to provide appropriate medical screening and stabilizing treatment within its capabilities to a male patient who arrived at their emergency department complaining of severe jaw pain as a result of a physical assault. The results of a CT scan taken by UCMC revealed injuries that he needed corrective surgery. However, UCMC did not provide further treatment and discharged the patient with instructions to go to another hospital for further care. Massachusetts In May 2013, Trustees of Tufts College and Tufts University School of Dental Medicine (TUSDM) agreed to pay $841,120 for allegedly violating the CMP Law. TUSDM submitted claims to Medicare for various services from four of their clinics. However, HHS/OIG alleged that these claims were improper because the services were provided by dentists who were not credentialed by Medicare or the services were not supported by sufficient medical record documentation. Georgia In May 2013, C.F. Health Management, Inc., d/b/a Gainesville Pain Management (GPM), and its physician agreed to pay $1.5 million for allegedly violating the Civil Monetary Penalties Law. HHS/OIG alleged that GPM submitted false or fraudulent claims by: (1) inappropriately using certain modifiers to submit claims for payment for multiple units when only a single unit may be billed per patient encounter, and (2) inappropriately billing for certain services when less expensive services were actually provided. Pennsylvania In July 2013, Bravo Health Pennsylvania, Inc. (Bravo), agreed to pay $225,000 to resolve its liability under the CMP provisions applicable to a Medicare Advantage organization. HHS/OIG alleged that patient medical records Bravo provided to HHS/OIG were intentionally altered prior to their submission or resubmission. Specifically, Bravo allegedly added apparent diagnoses notations or signatures to the patient medical records. CMS has defined four new HCPCS modifiers to selectively identify subsets of Distinct Procedural Services (-59 modifier) as follows: XE Separate Encounter, A Service That Is Distinct Because It Occurred During A Separate Encounter XS Separate Structure, A Service That Is Distinct Because It Was Performed On A Separate Organ/Structure XP Separate Practitioner, A Service That Is Distinct Because It Was Performed By A Different Practitioner XU Unusual Non-Overlapping Service, The Use Of A Service That Is Distinct Because It Does Not Overlap Usual Components Of The Main Service These modifiers, collectively referred to as -X{EPSU} modifiers, define specific subsets of the -59 modifier. CMS will not stop recognizing the -59 modifier but notes that CPT instructions state that the -59 modifier should not be used when a more descriptive modifier is available. CMS will continue to recognize the -59 modifier in many instances but may selectively require a more specific - X{EPSU} modifier for billing certain codes at high risk for incorrect billing. For example, a particular NCCI PTP code pair may be identified as payable only with the -XE separate encounter modifier but not the -59 or other -X{EPSU} modifiers. The -X{EPSU} modifiers are more selective versions of the -59 modifier so it would be incorrect to include both modifiers on the same line. The combination of alternative specific modifiers with a general less specific modifier creates additional discrimination in both reporting and editing. As a default, at this time CMS will initially accept either a -59 modifier or a more selective - X{EPSU} modifier as correct coding, although the rapid migration of providers to the more selective modifiers is encouraged. However, these modifiers are valid modifiers even before national edits are in place, so contractors are not prohibited from requiring the use of selective modifiers in lieu of the general -59 modifier when necessitated by local program integrity and compliance needs. Pub One-Time Notification Centers for Medicare & Medicaid Services (CMS) Transmittal 1422 Modifier 25: Change and Impact 47 How to Define Significant, Separately Identifiable 48 Modifier 25 may be appended to E&M services reported with minor surgical procedures (global period of 000 or 010 days) or procedures not covered by global surgery rules (global indicator of XXX). Since minor surgical procedures and XXX procedures include pre-procedure, intra-procedure, and post-procedure work inherent in the procedure, the provider should not report an E&M service for this work. Furthermore, Medicare Global Surgery rules prevent the reporting of a separate E&M service for the work associated with the decision to perform a minor surgical procedure whether the patient is a new or established patient. Citation: CMS. National Correct Coding Initiative Policy Manual. Chapter 1 General Correct Coding Policies, E, Modifiers and Modifier Indicators. Notice the portion of the above that states, Whether the patient is new or established. As many of your practices have and continue to do when a patient is seen for a complaint and the clinical indication is to provide an injection or minor procedure at the same visit we have always referred to the Modifier 25. However, based on the above unless there is a significant, separately identifiable evaluation above and beyond the pre-service work-up of the procedure consider the services bundled. The question is what determines a significant work-up? This is highly subjective because what is significant According to Merriam-Webster dictionary the definition of significant is, a: having or likely to have influence or effect : important; also : of a noticeably or measurably large amount. So how do we incorporate this into what we do? The historical, examination and complexity of decision making need to be above and beyond what the provider would normally do. Does that mean ask more questions related to the History or Present Illness; examine more organ systems or body areas then what they would normally do; or does the complexity need to be at a certain level (i.e. Moderate Complexity) to support the definition of Significant? The answer is all of the above. Many will disagree with me but before you do think about how complexity of a provider s decision making influences what they do and when they do it. 8

9 Impact of Modifier History of Present Illness and Chief Complaint 50 Take orthopedics as an example. Patient is seen by the PCP who says, You have patella tendonitis and it requires an injection of cortisone. The PCP sends the patient to the orthopedic practice for injection for patella tendonitis. How many of your providers are going to simply inject the patient because the PCP said that was what they needed? Not a single one; why because what if it s not tendonitis and it s a partially torn MCL? What if the area is so swollen that injecting it would make it worse and actually prohibit proper healing. This is why providers evaluate before treating. According to Wisconsin Physician Services (WPS) Definition of the 25 Modifier is Significant, separately identifiable evaluation and management (E/M) service by the same physician* on the day of a procedure. Here is my recommendation for the practice. Create a policy on when and how the modifier 25 is going to be used in the practice. Make sure you provide statements such as The modifier will only be used when it is appropriate. When a patient s presenting problems require work-up above and beyond the normal pre-service and post-service of a procedure. Provide some examples specific to your specialty. The chief compliant may be taken by a member of the ancillary staff. Q 15. Can the medical assistant (MA) document the chief complaint? There may be some rare instances where the MA documents "F/U for HTN" and the physician then documents the exam and medical decision-making. Can we code this as a visit or must we use the NOC 99499? A 15. There is no restriction on a medical assistant documenting the chief complaint. However, the physician must validate the CC in the documentation. The History of Present Illness must be performed by the Physician. Q 18. Who can perform the History of Present Illness (HPI) portion of the patient's history? A 18. The history portion refers to the subjective information obtained by the physician or ancillary staff. Although ancillary staff can perform the other parts of the history, that staff cannot perform the HPI. Only the physician can perform the HPI. Q 19. If the nurse takes the HPI, can the physician then state, "HPI as above by the nurse" or just "HPI as above in the documentation"? A 19. No. The physician billing the service must document the HPI. WPS Medicare History Element of E/M (Q&As) WHO DETERMINES WHAT IS "MEDICALLY NECESSARY" 51 Medical Necessity 52 A. Treating Physicians The first section of the Medicare statute is the prohibition Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided. From this, one could conclude that the beneficiary's physician should decide what services are medically necessary for the beneficiary, and a substantial line of authority in the Social Security disability benefits area holds that the treating physician's opinion is entitled to special weight and is binding upon the Secretary when not contradicted by substantial evidence. Some courts have applied the rationale of the "treating physician" rule in Medicare cases, and have rejected the Secretary's assertion that the treating physician rule should not be applied to Medicare determinations. In Holland, the court concluded: Though the considerations bearing on the weight to be accorded a treating physician's opinion are not necessarily identical in the disability and Medicare context, we would expect the Secretary to place significant reliance on the informed opinion of a treating physician and either to apply the treating physician rule, with its component of "some extra weight" to be accorded that opinion, [even if contradicted by substantial evidence], or to supply a reasoned basis, in conformity with statutory purposes, for declining to do so. Medical necessity of a service is the overarching criterion for payment in addition to the individual requirements of a CPT code. It would not be medically necessary or appropriate to bill a higher level of evaluation and management service when a lower level of service is warranted. The volume of documentation should not be the primary influence upon which a specific level of service is billed. Documentation should support the level of service reported. The service should be documented during, or as soon as practicable after it is provided in order to maintain an accurate medical record /Selection of Level of Evaluation and Management Service (Rev. 178, ) How Does Auditing Impact Compliance 53 Monitoring and Auditing 54 What we learn from our audits should translate into compliance Policies and Procedures are derived from audits or in theory should be If we use out of the box P&Ps without modification are we really compliant? If we are not updating our P&Ps based on our audit findings do we have P&Ps? As a result of audit findings, providers as always can expect to see increased efforts by the federal government to prevent, identify, and punish healthcare fraud. CMS action plan: Increased number of prepayment reviews Increased post-payment reviews of medical necessity and medical record documentation supporting claims Overpayment recovery Providers identified by the audit as submitting improper claims will be targeted for more extensive investigation Increased review of evaluation and management claims (2010 study shows that more than 55% of levels selected were incorrect.) Demand for more documentation from providers who submit claims Increased security measures to prevent submission of claims from improper providers The organization must evaluate the effectiveness of its compliance program on an ongoing basis by monitoring compliance with its standards and procedures and by reviewing its standards and procedures to ensure they are current and complete. A review of pending claims not yet submitted can establish a benchmark that will be used in ongoing reviews to chart the success of the organization s compliance efforts. (Counsel often recommend this be conducted under attorney-client privilege). 9

10 AUDITING, MONITORING & TRENDING 55 Auditing and Monitoring 56 Sentencing Guidelines & USSC Advisory Committee Recommendations Two components: (1) Traditional Auditing and Monitoring to review/assess adherence to applicable laws, regulations and policies, and (2) Periodic evaluation of the effectiveness of the compliance program itself. Auditing and Monitoring efforts should be tied to (driven by) results of the risk assessment process. Activities with greatest risk should normally be highest audit priority. Internal and external auditing and monitoring of the claims submission process. Baseline audits serve as a basis for future audits. Minimum of 30 charts should provide a strong statistical sample for a baseline audit! After baseline audits, periodic audits should be conducted to ensure the effectiveness of the program. Every quarter you should pull 5-10 charts per provider. Large facilities should do it at a higher frequency. Baseline (Snapshot) Audits 57 Erroneous vs. Fraudulent 58 Identifies over time the practice s progress in reducing or eliminating potential areas of vulnerability This process known as benchmarking allows the practice to chart its compliance efforts by showing a reduction or increase in the number of claims paid and denied The process is used to examine the claim development and submission process from patient intake through claim submission and payment This process provides identification of elements within this process which may contribute to non-compliance or that may need to be the focus for improving execution Erroneous- claims submitted to the carriers with inadvertence or negligence. Refunds should be made once a detection is made. Providers are not subject to civil penalties, interest or jail Fraudulent- claims submitted intentionally or with reckless disregard for the intent of inappropriate monetary gain. Providers are subject to civil penalties and jail Compliance Monitoring 59 Auditing and Monitoring Implementation 60 The OIG acknowledges that full implementation of all components may not be feasible for all practices Practices should adopt those components which are likely to provide an identifiable benefit based on previous history of specific billing problems or compliance issues Auditing and monitoring of the plan must be one of the seven steps adopted It is advised that providers participate in other compliance programs, such as the hospitals or other settings in which the physician practices This step is crucial to the success of a compliance program This process not only ensures the practice s standards and procedures are current, but also whether they are accurate and if the compliance program is working ensuring individuals are carrying out their responsibilities 10

11 The World of Compliance According to OIG Having the OIG and DoJ show up to your office and not having an effective compliance program will make you 62 Establishing and following a compliance program will help physicians avoid fraudulent activities and ensure that they are submitting true and accurate claims. The following seven components provide a solid basis upon which a physician practice can create a voluntary compliance program: Conduct internal monitoring and auditing. Implement compliance and practice standards. Designate a compliance officer or contact. Conduct appropriate training and education. Respond appropriately to detected offenses and develop corrective action. Develop open lines of communication with employees. Enforce disciplinary standards through well-publicized guidelines. With the passage of the Patient Protection and Affordable Care Act of 2010, physicians who treat Medicare and Medicaid beneficiaries will be required to establish a compliance program. *Source: OIG/ A Roadmap for New Physicians 61 Effective Compliance Programs Lead to Accurate Coding, Which is Essential There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of matters addressed merely a passing phase. Chief Judge Ervin United States Court of Appeals for the fourth Circuit in Rehabilitation Association of Virginia v. Kozlowski, 42 F. 3d 1444, 1450 (4 th Circuit 1994) It is the provider s duty to present an accurate claim. This is more binding than the desire to act as a financial advocate for the patient or the practice. Complete and accurate coding ensures Accurate claims are submitted, which stems from a comprehensive compliance program that forces both staff and providers to take notice in what they are selecting for levels of service, procedure or service codes, and diagnosis codes. Without an effective compliance program practices fail to demonstrate a Good Faith effort to comply with the standards established by the payers. 63 Sean M. Weiss 64 CMS and Their Bounty Hunters Who s Looking At Your Practice

12 Laws To Be Familiar With Federal Health Care Fraud and Abuse Laws 67 Waiving copayments routinely The False Claims Act Statute: 31 U.S.C The Anti-Kickback Statute Statute: 42 U.S.C. 1320a 7b(b) Safe Harbor Regulations: 42 C.F.R The Physician Self-Referral Law Statute: 42 U.S.C. 1395nn Regulations: 42 C.F.R The Exclusion Authorities Statutes: 42 U.S.C. 1320a 7, 1320c 5 Regulations: 42 C.F.R. pts (OIG) and 1002 (State agencies) The Civil Monetary Penalties Law Statute: 42 U.S.C. 1320a 7a Regulations: 42 C.F.R. pt Criminal Health Care Fraud Statute Statute: 18 U.S.C. 1347, 1349 Waiving copayments on a case by case basis for financially needy Providing free or discounted services to uninsured patients 68 When It Is Appropriate to Waive Copayment or Deductibles Waiver of Copayment Policy 70 When the cost of collecting exceeds the amount you are trying to collect. This is a referred to disproportionate write-off or a small debt write-off. After making a reasonable effort for collections you are unsuccessful. This is referred to as a bad debt write-off What is considered a reasonable effort to collect? When the patient declares a financial hardship or indigence. Title XIX of the Social Security Act What questions do you have to ask? Are there any specific forms to complete? 69 Hardship Advisory Form

13 Why Develop a Compliance Plan? 73 Why Develop a Compliance Plan? 74 Federal Sentencing Guidelines Health Care Reform Must be an effective program to prevent and detect violations of the law. OIG Compliance Guidance Individual and Small Group Physician Practices, 65 Fed. Reg. 59,434 (Oct. 5, 2000) Compliance plans to become mandatory as a condition of participation in Medicare and Medicaid... but only after CMS promulgates implementing regulations to establish the core elements for mandatory compliance programs Risk Areas for Physician/Provider Practices 75 Risk Areas for Physician Practices 76 OIG Compliance Guidance for Physicians Accurate Coding & Billing OIG Work Plan Compliance with Medicare Assignment Rules Billing for non-covered services, unbundling, failure to properly use coding modifiers, upcoding Reasonable & Necessary Services Incident-To Services Evaluation & Management Service Coding Medical record & orders should support appropriateness of service Physician Documentation Improper Inducements, Kickback and Self-Referrals Financial arrangements with referrals sources, joint ventures, leases, gifts/gratuities Day Repayment Requirement 78 New Compliance Obligations 6402 of PPACA requires reporting and repayment of overpayments within 60 days of identification (or due date of next cost report, if applicable) Applies to Medicare and other federal health care programs What s identification? Failure to repay within 60-days may be a false claim 13

14 60-Day Repayment Requirement 79 Monthly Exclusion Checking 80 Regulatory guidance will be forthcoming... (or so we ve heard) Absent guidance, providers must struggle to come up with practical approaches to complying with the 60-day requirement What is exclusion checking? Growing number of State Medicaid Programs are requiring monthly screening of current employees and contractors. State Medicaid Director Letter instructed states to require providers to search the HHS-OIG website monthly to capture exclusions and reinstatements that have occurred since the last search. HHS-OIG CIAs still only require annual screening Monthly Exclusion Checking 81 The Road Ahead! 82 Need to have a policy Increasingly aggressive federal/state enforcement Before hiring and at least annually Alphabet soup of government contractors looking for fraud, waste and abuse Need to check the websites Whistleblowers driving government priorities Increasing importance of comprehensive and aggressive compliance efforts Check everyone, including physicians What is a Compliance Program? 83 WHY HAVE A COMPLIANCE PROGRAM? 84 Risk Minimization Financial Risks & Operational Risks Health & Safety Risks Reputational Risks Better Image, Improved Relationships, Greater Trust Community Regulators External Pressures CMS (ZPIC, RAC, UPIC, PSC, Private Payors, etc.) Governmental Expectations (e.g. DHHS OIG) (Possibly) Reduced Fines and Penalties Greater Efficiency and Improved Outcomes Better trained workforce, better morale Elimination of uncertainty and confusion about roles and responsibilities Better quality operations Identifying and addressing problems early Reducing likelihood of government audits & investigations 14

15 WHY HAVE A COMPLIANCE PROGRAM? 85 WHAT ARE THE PURPOSES OF A COMPREHENSIVE COMPLIANCE PROGRAM? 86 Consequences of Noncompliance Fines, penalties, and legal fees Imposed compliance settlements More regulatory and audit agency scrutiny Management time and effort required to perform damage control Management turnover Lower faculty and staff morale Increased bureaucracy and lower efficiency Lingering effects. Guilt by association: when one of us is tarred, we all wear the feathers Source: Steve Jung Example: Mission Statement: To serve, safeguard, and promote ethical practices at the Medical Practice by: Identifying compliance risks and effective methods to mitigate those risks; Improving delivery of compliance resources; Educating and promoting awareness of ethical and legal standards of conduct through effective programs; and Partnering with responsible representatives to monitor compliance and to ensure that appropriate and effective corrective actions are taken where non-compliance is detected UNITED STATES SENTENCING GUIDELINES (USSG) ELEMENTS OF COMPLIANCE Organization must promote culture that encourages commitment to compliance with the law by minimally: 1. Establishing compliance standards and procedures to prevent and detect violations 2. Governing authority oversight: shall Be knowledgeable about content and operation of program Exercise reasonable oversight regarding implementation and effectiveness Assign specific high-level person(s) direct, overall responsibility Give adequate resources Assessing specific compliance risks Give adequate authority Have person report directly to governing authority or subgroup on implementation and effectiveness RISK INVENTORY AND ASSESSMENT IN 2 STAGES Stage 1 Risk Identification Cradle to Grave of whatever can go wrong in the risk area NOT an inventory of legal rules. Event driven and plain language Steps 1. Identify Risk areas 2. Identify specific risks within these areas Stage 2 Risk Evaluation 15

16 LEADING VS. LAGGING INDICATORS 91 Kick The Tires 92 Leading predictive of future outcomes Assessment of training effectiveness Culture willingness to report concerns Hotline trend reports Well-understood Standard Operating Policies (SOP) Clear and understood delegations Lagging where compliance breakdowns have occurred Once a compliance program has been established, develop a process to evaluate it and measure its effectiveness Individual hotline reports Audits findings, etc. Fines, lawsuits, sanctions, etc. What is Compliance? 93 Who Is Liable? 94 A voluntary program, but strongly recommended by the OIG A complete set of policies and procedures as they pertain to a practice and its operations It is designed to identify potentially abusive, deficient, or fraudulent activities and create methods and controls to assure that they are identified and corrected Auditors have indicated practices that have an effective compliance plan in place are less likely to be prosecuted for fraud due to their inability to convince a jury beyond a reasonable doubt of intentional deception even if there are mistakes detected. Any entity who is found to be fraudulently submitting claims (not only the provider) Potential civil/criminal penalties Up to $10,000 per claim for each fraudulent claim submitted Possibly held liable for up to three times the amount unlawfully claimed Criminal penalties range from 5 years in prison, $250,000 per claim, and exclusion from federally funded programs Benefits of a Compliance Program 95 Categories of Policies Needed 96 The OIG believes the following benefits can be awarded to practices that have effective compliance programs: Internal controls Better documentation Highly educated employees Reduced denial percentage Significantly reduced risk of penalties/fines Reduced exposure to audits Anti-Kickback Statutes Code of Conduct Stark I and II self-referral legislation Compliance attestation Waiver of co-pay and Duties of compliance personnel deductibles Infrastructure of compliance plan Patient termination Auditing and monitoring process Self-disclosure protocol Procedures for handling search Job descriptions, background warrants, subpoenas and and employment checks investigations Employee training Reporting of wrongdoing Non-retaliation Response and prevention 16

17 What Your Compliance Program Should Contain 97 Compliance Standards and Procedures 98 Establish compliance standards and procedures that are reasonably capable of reducing the prospect of erroneous claims and fraudulent activity, while identifying any aberrant billing practices. Effective compliance standards will identify the organization s risk areas and establish internal controls to contain those risks. Standards of Conduct Indicate what is appropriate conduct with regard to all office operations. Provide standards to prevent criminal conduct Must be in writing. If it is not in writing, you do not have P&P s. Corporate commitment - if the top brass in the company don t buy in, then the program is destined to fail. Applies to all employees. This means everyone! Everyone must understand his/her role (sign it). A Compliance Pledge is a MUST! Measuring the Effectiveness of Your Plan 101 OVERSIGHT, GOVERNANCE & LEADERSHIP EXPECTATIONS 102 Develop benchmarks and goals in team with Compliance Committee, Board, and department managers What do you want to measure? U.S. Sentencing Guidelines Now Provide.. The organization s governing authority shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to (its) implementation and effectiveness. High level personnel shall ensure that the organization has an effective compliance and ethics program [for which] specific individuals within high level personnel shall be assigned responsibility. Specific individuals within the organization shall be delegated day-to-day operational responsibility for the compliance and ethics program. [These individuals] shall report periodically to high-level personnel and appropriate, to the governing authority, or an appropriate subgroup of the governing authority, on the effectiveness of the program. To carry out such operational responsibility, such individual (s) shall be given adequate resources, appropriate authority, and direct access to the governing authority or an appropriate sub-group of the governing authority. 17

18 Oversight Responsibilities 103 The Compliance Officer 104 The organization must designate one or more high-level individuals to oversee compliance activities. Responsibilities may include oversight of all compliance activities or be limited to implementation of specific compliance functions. The organization must not put individuals who have demonstrated a propensity for violating the law into positions of substantial discretionary authority. Loyal, responsible, and trustworthy. This person(s) must have the authority to maintain the compliance plan. A Compliance Officer is usually one of the most powerful and influential people in an organization. Should report regularly to the board or chief officer(s) to assure that the plan is effective Must be able to delegate compliance responsibilities to appropriate individuals. They are, in most cases, considered to be a separate unbiased part of the organization. Some Roles of the Compliance Officer 105 Pay Attention to What Employees are Saying 106 To know and administer all aspects of the plan To ensure proper delegation of responsibilities to members of the staff is done so in writing and to whom it is believed are the most honest, loyal and capable of making the judgments called for in the delegation To consult with outside counsel to obtain interpretations of gray areas To bring to the attention of the compliance committee/board all changes in circumstances that could reasonably suggest that the plan should be modified or changed to current standards To promptly carry out all duties assigned to the compliance officer by the plan and established through the steering committee To report to the compliance committee/board on a quarterly basis as determined by the compliance committee or established policies Investigate concerns employees raise to see if there's any validity. Show employees that you are following up and showing due diligence, even if your first impression is that the employee is raising an HR issue. Pushing employees away may make them angry that their complaint fell on deaf ears with management and could lead them to file a whistleblower claim. Education and Training 107 Effective Training and Education 108 The organization must communicate its standards and procedures to all employees, professional staff, and physicians in a meaningful and effective manner by implementing an effective training program that explains the requirements of the compliance program and applicable laws. Compliance training may involve in-person training sessions, newsletters, other written materials, and/or bulletin boards. Three steps for setting up educational objectives: 1. Decide who needs training (coding, billing and compliance staff). 2. Decide what type of training is best for the practice. 3. Decide when and how much training is needed. 18

19 Types of Education 109 Sample Attestation 110 The importance of compliance and provisions of the plan Overview as it relates to providers Outline of the education and review process Specific risk areas to providers Provider billing guidelines General principles of coding and documentation of CPT & ICD10 Importance of proper CPT coding Importance of proper ICD coding Regulations by type of CPT coding: Evaluation and Management Codes Admits Daily in-patient visits New vs Established patient visits Consults Emergency Room Preventative Medicine Incident-To billing I have received a copy of Anywhere USA Company s compliance plan including all policies and procedures. As it has been explained to me by the compliance officer and as I have read it, the manual contains descriptions of appropriate and inappropriate company behavior. I have read, understand and agree to abide by all policies and procedures included in the manual. This attestation, as I understand it, does not constitute an employment contract between Anywhere USA Company and its employees. Employee Date Compliance Manager Date 111 Crate an Audit Committee 112 Proactively audit: Coding Contracts Care 113 Monitoring and Auditing 114 Auditing and Monitoring: A Critical Process The organization must evaluate the effectiveness of its compliance program on an ongoing basis by monitoring compliance with its standards and procedures and by reviewing its standards and procedures to ensure they are current and complete. A review of pending claims not yet submitted can establish a benchmark that will be used in ongoing reviews to chart the success of the organization s compliance efforts. (Counsel often recommend this be conducted under attorney-client privilege). 19

20 AUDITING, MONITORING & TRENDING 115 Claims Submission Audit 116 Sentencing Guidelines & USSC Advisory Committee Recommendations Two components: (1) Traditional Auditing and Monitoring to review/assess adherence to applicable laws, regulations and policies, and (2) Periodic evaluation of the effectiveness of the compliance program itself. Auditing and Monitoring efforts should be tied to (driven by) results of the risk assessment process. Activities with greatest risk should normally be highest audit priority. The primary purpose for this type of audit is for compliance with coding, billing, and documentation requirements. Reviews can be done either retrospectively or prospectively What are the differences and the risks for performing each? Audits can be used to determine whether: Bills are accurately coded and accurately reflect the services provided Documentation is being completed correctly Services or items provided are reasonable and necessary; and Any incentives for unnecessary services exist Periodic Audits 117 REPORTING & CORRECTIVE ACTION 118 The OIG recommends that these are performed at a minimum of one per year There is no set formula for the number of records that should be reviewed A basic guide is five or more medical records per federal payer or five to ten records per physician Encouraging reporting of noncompliance (Code of Conduct, Hotline, Whistleblower & Non-Retaliation Policies, Training) Have clear policies and procedures regarding required reporting to regulatory agencies and other third parties (accreditors, contract partners) Establish and follow (escalating) sanction policies Establish and follow procedures for communications with managers/supervisors and appropriate institutional officials (Department Chairs) about noncompliance events. CORRECTIVE ACTION PLAN Medical Practice.docx Keep Open Lines of Communication 119 Lines of Communication 120 Solicit feedback Maintain visibility with employees Comfort in reporting potential problems without fear of being pointed out or terminated is important. Trust is a factor! Staff must be made to understand that reporting a noncompliant activity is imperative to protect the practice Failure to report potential fraudulent activity is a violation of the program! Could lead to immediate termination! If you think it s a problem, it probably is! 20

21 Open Lines of Communication 121 Lines of Communication 122 The organization must put in place an accessible system for reporting inappropriate activities and for communicating compliance questions and concerns. Standards and procedures must emphasize that failure to report erroneous or fraudulent conduct is a violation of the compliance program. Standards and procedures also must stress that no retaliation may be taken against individuals who in good faith report what reasonably appears to be misconduct or a violation of the compliance program. One important strategy for nipping whistle-blowers in the bud is to manage employees' complaints more effectively. Many employee complaints that come into a compliance office either directly to the compliance officer or through other channels, such as the hotline appear to be human resource problems, and are typically referred to the HR department. It's time for compliance officers to slow down and reconsider referrals to HR. Listen Carefully 123 Response and Prevention 124 Employees may gripe about their supervisors and how badly they treat employees, which seems like an HR issue. If an compliance violation is detected, the organization should take all reasonable steps to respond appropriately to the violation Before you refer them to HR, listen closely to what they are saying about the supervisor and inefficiencies and whether they could result in a compliance issue. Take corrective action to rectify any harm resulting from the current offense Prevent similar offenses from occurring in the future. If an employee is calling from the billing department and talking about management in a way that indicates the employee is pressured to get bills out the door, that may potentially mean there is the same pressure on all employees, and that may be creating mistakes on the bills. Investigation and Disciplinary Action 125 Corrective Action 126 Do not discriminate! Disciplinary action should apply to every member of the practice, regardless of position (written policy). The compliance officer has the obligation to follow-up on any information with regard to non-compliant activities. What steps will be taken to assure that the same offenses do not occur again? How many times do we allow a problem to reappear until we do something about it? 21

22 ROLE OF LEGAL COUNSEL 127 Perhaps some or all of the above? Provide legal advice and final word on all legal questions Serve as Subject Matter Experts in various areas. Interpret/Assess external enforcement and liability environment Lead/Assist with investigations Assist with risk assessments, gaps analyses, possibly under attorney client privilege Policy drafting and implementation Assist with training General problem-solving Auditing from the Auditor s Perspective Hands On E&M Auditing Presented by: Sean M. Weiss, CMCO, CPMA, CMPE, CPC-P, CPC Partner/VP & Chief Compliance Officer & John Burns, CPC, CPC-I, CEMC, CPMA The Department of Audit and Regulatory Compliance DoctorsManagement, LLC Copyright ABOUT YOUR FACULTY Focused on Audit Appeal Representation at the Federal, State and Commercial Payer level Partner with DoctorsManagement serving as VP and Chief Compliance Officer (2012-Present) Founder of The CMC Group, LLC ( ) Former Vice President DecisionHealth ( ) Former Senior Analyst and Compliance Officer for Tenet Health System Former National Physician Service Consultant/Columbia HCA Certifications: Certified in Healthcare Compliance- CHC (Pending ) Certified Medical Compliance Officer- CMCO (2015) Certified Professional Medical Auditor- CPMA (2013) Certified Professional Coder- Payers- CPC-P (2006) Certified Professional Coder- CPC (1999) Certified Medical Practice Executive- CMPE (1998) WHY ARE YOU INTERESTED IN AUDITS To make sure you re not under-coding and/or over-coding? You are responsible for identifying revenue opportunities (coding) for your practice? Because your compliance plan tells you that you must? To avoid going to E&M coding jail or the real one? WHY ARE PAYERS INTERESTED IN AUDITS EASY MONEY CMS requires Medicare Part B Carriers to conduct audits Auditors are looking to recoup overpayments E&M represents the largest expense to Medicare E&M coding patterns easy to monitor E&M documentation is fairly easy to audit Common types of payment errors: Medically unnecessary services (57.1%) Documentation errors (28.6%) Coding errors (14.3%) 22

23 EASY TARGETS 1862 OF MEDICARE LAW EM services are the easiest to audit, are in abundance and generate a lot of money for the carriers and other groups that perform audits! They are easy to request refunds for because of the high level of subjectivity and; 60% of providers don t have a clue of what or how to document appropriately. 20% of providers don t care and 10% are so paranoid they automatically under-code their services to avoid scrutiny! That means in reality, only 10% of providers get it right They are the single largest service billed for by providers. The government is broke and when this happens auditing becomes the logical step. Medicare will cover: Services that are reasonable and necessary for the diagnosis and treatment of illness or injury or to improve the functioning of a malformed body member Medicare Act 1801 states: Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical service are provided DEFINITION OF MEDICAL NECESSITY The definition according to the settlement agreement for Medically Necessary or Medical Necessity shall mean health care services that a physician, exercising prudent clinical judgment, would provide to a patient for the purpose of preventing, evaluating, diagnosing or treating an illness, injury, disease or its symptoms, and that are: a) in accordance with generally accepted standards of medical practice; b) clinically appropriate, in terms of type, frequency, extent, site and duration, and considered effective for the patient's illness, injury or disease; and c) not primarily for the convenience of the patient, physician or other health care provider, and not more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of that patient's illness, injury or disease. For these purposes, generally accepted standards of medical practice means standards that are based on credible scientific evidence published in peer-reviewed medical literature generally recognized by the relevant medical community or otherwise consistent with the standards set forth in policy issues involving clinical judgment. IS THERE A DIFFERENCE IN MEDICAL NECESSITY AND MEDICAL DECISION MAKING? Medical necessity is the overall analysis of the complexity of the full episode Medical decision making is merely a documentation audit process--- a bean counting process WHO DETERMINES WHAT IS "MEDICALLY NECESSARY" A. Treating Physicians The first section of the Medicare statute is the prohibition Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided. From this, one could conclude that the beneficiary's physician should decide what services are medically necessary for the beneficiary, and a substantial line of authority in the Social Security disability benefits area holds that the treating physician's opinion is entitled to special weight and is binding upon the Secretary when not contradicted by substantial evidence. Some courts have applied the rationale of the "treating physician" rule in Medicare cases, and have rejected the Secretary's assertion that the treating physician rule should not be applied to Medicare determinations. In Holland, the court concluded: Though the considerations bearing on the weight to be accorded a treating physician's opinion are not necessarily identical in the disability and Medicare context, we would expect the Secretary to place significant reliance on the informed opinion of a treating physician and either to apply the treating physician rule, with its component of "some extra weight" to be accorded that opinion, [even if contradicted by substantial evidence], or to supply a reasoned basis, in conformity with statutory purposes, for declining to do so. MEDICAL NECESSITY Medical necessity of a service is the overarching criterion for payment in addition to the individual requirements of a CPT code. It would not be medically necessary or appropriate to bill a higher level of evaluation and management service when a lower level of service is warranted. The volume of documentation should not be the primary influence upon which a specific level of service is billed. Documentation should support the level of service reported. The service should be documented during, or as soon as practicable after it is provided in order to maintain an accurate medical record /Selection of Level of Evaluation and Management Service (Rev. 178, ) 23

24 EVALUATION & MANAGEMENT (E&M) SERVICES For the sake of argument, a preventive E/M service differs from a problem-oriented E/M service only in that a patient who presents for the former lacks a current chief complaint. Pages xxiv-xxvi provide some excellent charts designed to assist users to assign the accurate levels of E&M service Who are you seeing? New, initial, established, subsequent, consultation, etc. Where are you seeing them? Outpatient, inpatient, emergency department, home, etc. Why are you seeing them? Preventive versus problem-oriented Office/outpatient (New/Established) Hospital observation (Initial/Subsequent/Discharge) Hospital inpatient (Initial/Subsequent/Discharge) Consultations (CMS discontinued payment in 2010) Emergency department Critical Care (Inpatient/Outpatient-AGE) Nursing Home Services (Initial/Subsequent/Discharge) Domiciliary, Rest Home, Custodial Care (New/Established) Home Services (New/Established) Prolonged services (Inpatient vs. Outpatient) Categories of E&M Services Care Plan Oversight (Home Health, Hospice, Nursing Facility) Preventive medicine (New/Established/AGE-specific) Non-Face-to-Face Physician Services (Interprofessional Telephone/Internet Consultations, CPT codes added for These are time based Neonatal/Pediatric/Newborn Care ( & added for 2014 for use of hypothermia for critically ill neonates) Complex Chronic Care Coordination services (New 2013) These will become Complex Chronic Care Management services in 2015 and Medicare will recognize Transitional Care Management Services (New 2013) TRUE OR FALSE: NEW PATIENT VISITS MAY NOT BE SELECTED BY PROVIDERS OF THE SAME GROUP PRACTICE IN THE SAME 3-YEAR PERIOD. Incorrect True NEW VS. ESTABLISHED PATIENTS A new patient is one who has not received any face to face professional service from the physician/qualified healthcare professional or another physician/qualified healthcare professional of the exact same specialty/subspecialty who belongs to the same group practice within the past three years Correct False Medicare regulation states: "Physicians in the same group practice who are in the same specialty must bill and be paid as though they were a single physician." Refer to the CPT Decision Tree on page 5 of 2013 CPT Professional Reset Questions IMPORTANT E&M TERMINOLOGY Concurrent Care The provision of similar services (e.g.., hospital visits) to the same patient by multiple providers on the same date (defined top page 5) Transfer of Care The process whereby a provider managing a patient relinquishes the responsibility to another provider and that provider explicitly agrees to accept responsibility Consultation A request by one provider for another provider to offer an opinion and/or advice regarding the management of the patient The 3 R s Time Inpatient- Unit/floor time (defined page 8) Outpatient- Face-to-face time (defined page 8) WHAT DEFINES THE LEVEL OF EVALUATION AND MANAGEMENT (E/M) CODE? History Exam Medical Decision Making Nature of Presenting Problem Counseling Coordination of Care Time KEY Components Contributory Factors 24

25 OFFICE AND OTHER OUTPATIENT SERVICES New patient visits Require all 3 key components Remember new patients have not received professional services within previous three (3) years Established patient visits Require 2 of the 3 key components is a level of E&M service that typically does not require the presence of a physician Tip: Highlight the time frames and number of key components required for each of the codes in this section NURSE VISITS Typical nurse visits include, patient education, injections, infusions, problem focused evaluations and specimen collection. Per CPT, Usually, the presenting problem(s) are minimal. Typically, five minutes are spent performing or supervising these services. General Requirements Non Physician must be: Employee or contractor for physician Follow physician orders resulting from his/her evaluation of the patient Be supervised by a physician Because medical necessity is required, vital signs and blood pressure checks may not be routinely performed at the time of another coded service in order to bill for a visit (e.g.., injections, INRs, etc.) OBSERVATION SERVICES CPT CODES & Reserved for patients designated/admitted as observation status in the hospital Observation is a status, not a physical location There are three levels for initial observation New in 2012: Times are now associated with these codes (30min/50min/70min thresholds) Use unit/floor time concept There are three NEW levels for subsequent observation # (resequenced) 30min/50min/70min thresholds There is one code to report observation discharge TROUBLESHOOTING OBSERVATION According to the AMA, the subsequent observation codes ( ) are to be used for both the provider who initiates observation and any other provider who evaluates the patient CMS states that consulting physicians asked to evaluate the patient in observation should report these services with office or other outpatient visit codes, (Report consultations to payers that still have consult coverage policies in place) We suggest (like Aetna and others) that the subsequent observation codes be employed by the provider who initiates observation (CMS now concurs) E/M services on same date as observation are not separately reported. Codes are used to report same day observation and discharge or same day hospital admission and discharge (POS codes are very important) Always base code selections on calendar dates Always select discharge code (e.g , ) based on whether the patient is inpatient or outpatient. HOSPITAL INPATIENT SERVICES for initial hospital care ( admits ) Defined as the first hospital inpatient encounter by the admitting physician for inpatient rounds Clustering levels of E/M for subsequent hospital visits can be an audit target (CMS 10/00) 99238, for inpatient discharges You MUST document >30 minutes to support for same day admit/discharge Same codes as observation but require POS 21 INPATIENT E&M: NEW FOR 2014 New Inpatient Rule: CMS-1599-F (aka 2 Midnight Rule ) CMS has issued the 1 st definition revision inpatient since DRGs were established in 1983 Requires provider to certify (signed/dated order) CMS will not issue an approved form A note from the admitting MD should suffice Six month probe and educate from 10/1/2013 3/31/2014 Physician should generally order an inpatient admission when he/she has determined either that the beneficiary requires care at the hospital that is expected to transcend at least 2 midnights or that will involve a procedure designated by the OPPS as an inpatient only procedure (e.g., coronary bypass) go.cms.gov/inpatienthospitalreview 25

26 CONSULTATION SERVICES CPT CODES MEDICARE MANUAL (CMS PUB 14-3) The request for consultation must be in writing Therapeutic or diagnostic services may be provided during the course of a consultation A written report to the requesting physician must be provided (outpatient setting only- shared records ) The requesting physician s NPI goes in box 17b of the CMS 1500 claim form Referrals are NOT to be coded as consultations CMS placed moratorium on consultation services ( ) The 3 R s (Request, Render, Respond) EMERGENCY DEPARTMENT SERVICES CPT CODES Only covered for patients registered in the ED of a hospital-based facility (POS 23). Any physician that provides services in the ED Do not report ED code if called in to consult Not required to be an emergency service No distinction between new or established patients Includes History, Exam, and Decision Making (all 3 required) No typical time associated with these codes CRITICAL CARE SERVICES CPT CODES Critical care: The direct delivery by a physician(s) of medical care for a critically ill or critically injured patient. A critical illness or injury is defined in 2013 CPT Professional (page 23) as one that acutely impairs one or more vital organ systems such that there is a high probability of imminent or life threatening deterioration in the patient s condition i.e. CNS failure, circulatory failure, shock, renal failure, etc. Time must be documented (suggested to use clock time) Time does not need to continuous (may be cumulative per day) CRITICAL CARE SERVICES Critical care may be provided on multiple days even without a change in treatment as long as the patient s condition continues to require a high complexity decision making. For any given period of time spent providing critical care services, the physician must devote his or her full attention to the patient, and therefore, cannot provide services to any other patient during the same period of time. See guidelines on pages of CPT 2013 Professional Same specialty providers are not permitted to report critical care Distinct providers (and diagnoses) are permitted to report critical care When one MD reports per diem code, others must refer to PROLONGED SERVICE CODES Face-to-face ( ) Non face-to-face ( ) Inpatient verses outpatient These are all add-on codes and require the documentation of time Need to understand levels of basic E/M services before one can report these codes accurately The services need to be unusual Prolonged service of less than 30 minutes total duration on a given day is not reported separately (already in work of E/M) Prolonged service of less than 15 minutes beyond the first hour or less than 15 minutes beyond the final 30 minutes is not reported separately ( midpoint ) PREVENTIVE MEDICINE SERVICES CPT CODES Age related codes (new versus established) Includes history, examination, counseling/anticipatory guidance/risk factors and orders for lab/diagnostic procedures. May report problem-oriented E&M with a modifier -25 (significant separately identifiable) with sufficient documentation Must require additional work to perform the key components of a problem-oriented E/M service ( significant ) vaccine/toxoid products, immunization administrations, ancillary studies involving laboratory, radiology, other procedures, or screening tests identified with a specific CPT code are reported separately. (page CPT Professional) 26

27 NON-FACE-TO-FACE PHYSICIAN SERVICES Telephone Services ( ) Codes are time-based For established patients only They are NOT paid by Medicare For physicians and other providers able to report E&M services Not reported if within 7 days of previous E&M or if decision to see in following 24 hours or next available urgent visit appointment Refer to for SLP, PT, CSW, dietician, etc. On-line Medical Evaluations (99444) Established patients only For physicians only Not reported if within 7 days of previous E&M or if decision to see in following 24 hours or next available urgent visit appointment Refer to for NPP on-line evaluation E&M: NEW FOR 2014 Interprofessional Telephone/Internet Consultations CPT Codes (Time specific minutes) Prolonged service codes for >30 minutes above is necessary Assessment and management codes where the patient s treating provider requests the opinion and/or treatment advice of a physician with specific specialty expertise Used in complex and/or urgent situations when face-to-face consult with the consultant is not feasible Geographic distance Not to be reported if consultant has seen patient within previous 14 days Not to be reported when the consultant agrees to accept the transfer of care NEWBORN CARE SERVICES CPT CODES For newborns (neonates) in the first days following birth prior to discharge Attendance at delivery (99464) and delivery/birthing room resuscitation (99465) are not separately reportable (parenthetical reference under initial care of newborn, per day (hospital of birthing center), normal newborn initial care of newborn, per day, (other than hospital of birthing center) normal newborn subsequent hospital care, normal newborn same day admit and discharge of normal newborn attendance at delivery delivery/birthing room resuscitation NEONATAL AND PEDIATRIC CRITICAL CARE (PER DIEM) Initial inpatient neonatal critical care Subsequent inpatient neonatal critical care Initial inpatient pediatric critical care, (29 days through 24 months) Subsequent inpatient pediatric critical care (29 days through 24 months) Initial inpatient pediatric critical care, per day, for the evaluation and management of a critically ill infant or young child, 2 through 5 years of age Subsequent inpatient pediatric critical care, per day, for the evaluation and management of a critically ill infant or young child, 2 through 5 years of age Remember, for ALL outpatient critical care, use Complex Chronic Care Coordination Services Added in 2013 ( ) In 2015, these will become Complex Chronic Care Management Services (with Medicare allowance) Patient centered management an support services for patients: Who reside at home, or in a domiciliary, rest home or assisted living Who typically have 1 or more chronic or continuous conditions expected to last at least 12 months or until death of the patient Per month codes Code selection depends on whether patient is seen during calendar month (no face to face visit per month) (one face to face visit per month) (add-on for each additional 30 minutes per calendar month) Time spent during day of face to face visit is not to be counted Transitional Care Management Services (TCM) Added in 2013: CPT codes ( ) For established patients whose medical and/or psychosocial problems require moderate or high complexities of MDM during transitions in care From inpatient setting to the patient s community setting (e.g.., home, domiciliary, rest home or assisted living) TCM begins on day of discharge and continues for next 29 days TCM requires one face to face visit within specified time frame First face to face visit of TCM is not reported separately (subsequent reported separately) Requires communication with patient/caregiver w/in 2 business days of discharge Moderate MDM and a face to face visit w/in 14 days (not separately reportable) Requires communication with patient/caregiver w/in 2 business days of discharge High MDM and a face to face visit w/in 7 days (not separately reportable) 27

28 E&M Documentation Guidelines Chief complaints Preventive vs. Problem-Oriented Complete reviews of systems 1995/1997 examination guidelines Using time to drive level of E&M Cloning Global period concepts Coding patterns Audits (OIG, CERT, RAC, ZPIC, etc.) CLONING: LET S CLEAR THE CONFUSION There is not a national policy issued by CMS in terms of cloning Some regional MACs have weighed in: lack of specific individual information (First Coast Service Option) exactly like previous entries (Palmetto GBA) cut and paste or carry forward (Palmetto GBA and NGS) Be sure each note is unique: Chief complaint HPI Examination (e.g., vitals) Assessment Plan HISTORY- SUBJECTIVE Chief complaint clear, concise statement detailing the reason the patient is presenting today, usually in the patient s own words According to CMS, the CC may be combined with the HPI HPI (history of present illness) ROS (review of system) PFSH (past family social history) Location where is it. (pain in LLQ abdomen) Quality how does is feel ( diffuse achy, tingling, numb etc) Severity how bad is it (1 10 for pain) Duration how long (3 days) HISTORY OF PRESENT ILLNESS-HPI Timing when does the symptom occur (worse after meals) Context what happen to caused it (abdominal pain after eating 25 oysters) Modifying factors what did the patient do in an attempt to alleviate their symptoms. (took otc) Associated signs and symptoms what else is bothering the patient. (diarrhea & vomiting) An inventory of the body systems of the patient to determine if the patient is experiencing additional signs and/or symptoms Expand on remarkable symptoms REVIEW OF SYSTEMS-(ROS) A complete ROS 10 or more systems Positive or pertinent negative responses must be individually documented with a statement that all other systems are negative. In the absence of such a notation, at least ten systems must be individually documented. PAST, FAMILY, AND SOCIAL HISTORY-(PFSH) Past history patient s experience with illness and/or injury Family history patient s family experience with illness Social history age relevant review of the patient s social activities 28

29 HISTORY DOCUMENTATION REMINDERS CC, ROS and PFSH may be listed as separate elements of history or included in documentation of the HPI Determining the Level of History Provider can use and get credit for history elements (not HPI) obtained at another visit as long as it is relevant and referenced Remainder of ROS and PFSH unchanged since 10/25/2013 ROS and/or PFSH may be recorded by ancillary staff or patient as long as the provider documents confirmation of the information Remember to always start in the highest level of history and work toward the lowest level the element located in the lowest level will determine the overall level of history TIP: If unable to obtain a history from the patient or other source, document the patient s condition that precludes getting it and you can be credited for a comprehensive level of history. EXAMINATIONS- OBJECTIVE 1995 guidelines Count the number of systems/areas Single system exams are not well-defined 1997 guidelines Count the number of elements or bullets performed Single system exams are defined Harder to meet without templates/macros EXAMINATION DOCUMENTATION REMINDERS A notation of abnormal without elaboration is insufficient documentation. Unlike history, examinations can not be deferred A brief statement/notation indicating negative or normal findings is sufficient. Normal or negative findings must be listed by body area or organ system. Page 9 of 2013 CPT states the only difference between an Expanded Problem Focused examination and a Detailed examination is that one is limited and the other is extended You will need to determine which guidelines suit your providers best and consider local carrier instruction Determining Level of Physical Examination NUMBER OF DIAGNOSIS AND/OR MANAGEMENT OPTIONS 95 - Body Areas 97 -Elements Problem Body Areas / Organ Systems Multi -Sys Single -Sys 1-5 Expanded Detailed 2 7 * with 1 detailed Eye/Psych = 9 Comprehensive 8 + organ systems 18 / 9 All Shaded + 1 Unshaded 29

30 AMOUNT AND COMPLEXITY OF DATA OVERALL RISK-TABLE OF RISK Select risk based on 1 highest level TIP You do not get 2 pts for independent review if you are also billing the global service CHART FOR THE OVERALL LEVEL OF MEDICAL DECISION MAKING Take the results of each of the 3 charts 2 of the 3 elements must meet or exceed the requirements on the far left If 2 elements are in the same level, that is the complexity of MDM If each element is in a different level, choose middle level intensity MDM E/M Time Definitions CPT Code Time Threshold CPT Code Time Threshold minutes minutes minutes minutes minutes minutes minutes minutes minutes minutes 99211* 5 (*no MD presence*) minutes minutes < or equal to 30 min minutes > 30 minutes minutes minutes minutes minutes minutes minutes minutes minutes minutes minutes minutes 99291, , +30 minutes minutes 99354, , 99356, , +30 minutes 30-74, +30 minutes SELECTING E/M BASED ON TIME For visits that involves more than 50 percent counseling or coordination of care, time can determine the level of coding. For example, if a 20-minute office visit with an established patient involved more than 10 minutes of counseling and coordination of care, you could automatically code the visit as a E&M CASE STUDY #1 John Smith 11/11/13 CC- Three (3) benign lesions on RT forearm and benign essential HTN check HPI- Mr. Smith is an established patient who presents with two small lesions on the RT ring forearm not evaluated before. He states the lesions have become painful and swelled over the past week. He denies any other complaints. Topical cream has had no effect. BP stable. ROS- patient states that finger has become red and irritated. He denies other skin or musculoskeletal issues PFSH- Meds reviewed and unchanged, takes multivitamins daily Physical Examination BP: 128/78, WT: 202 lbs, Height: 6 1 Full range of motion in hands and wrists, there are two small benign lesions on RT forearm. The patient is fully alert and oriented with normal mood and affect. Assessment/Plan 1. Benign lesions (3) on RT forearm. Removal of these lesions was discussed and the patient wishes to proceed. After local anesthesia was administered, the 3 lesions were electrosurgically destroyed. The patient has been instructed to follow up on a as needed basis. Patient instructed to return if problem worsens. 2. HTN well controlled (benign essential); lisinopril refill ordered (20mg/day). Prescription written. Follow up in 3 months. 30

31 HPI 4+ Chief Complaint: Established patient: 3 benign lesions, RT forearm and HTN recheck Location (RT ring forearm) Associated S/S (pain/swelling) Duration (past week) Modifying Factors (Topical cream) Physical Examination 1995 Guidelines Musculoskeletal Skin Psychiatric Constitutional (vitals) Expanded Problem Focused Medical Decision Making Number of Diagnoses and/or Management Options New problem with no additional workup = 3 pts HTN well-controlled = 1pt Amount/Complexity of Data Not applicable ROS 2-9 PFSH 1 of 3 4 HPI, 2 ROS, 1 PFSH Skin Musculoskeletal Past history (meds/multivitamins) Detailed History Remember, 2/3 required 1997 Guidelines(GMS) ROM RUE ROM LUE Inspection of skin Orientation/mood/affect Constitutional (vitals) Problem Focused (5) Overall Risk Minor surgery with no identified risks Prescription MGT = Moderate Remember: You need 2 out of 3 Moderate MDM Who? Established patient Where? Office PULLING IT ALL TOGETHER Need 2/3 Key Components Let s Pull It All Together: (401.1) (216.6) Key Components History Problem Focused Expanded Problem Focused Detailed Comprehensive is used to report destruction of up to 14 benign lesions Modifier -25 for the decision for minor surgery and separately identifiable service Examination Problem Focused Expanded Problem Focused Detailed Comprehensive MDM Straightforward Low Moderate High 10min 15 min 25 min 40 min Start in highest level! E&M CASE STUDY #2 Michael Jones 9/4/13 History and CC- 6-month follow up of HTN and Diabetes, chest discomfort HPI-Mr. Jones is a 59 year old gentleman with 1+ year history of hypertension and diabetes. Per patient, his blood pressures have been unstable/elevated at home running 145/90 to 160/110. He does describe a dull, full type of chest discomfort following exercise (walks 1-2 miles per day). His blood sugars are well managed. DM appears to be under excellent control. ROS- Patient admits to chest discomfort/pain. Denies fever, chills, weight loss, or numbness/tingling PFSH-NKDA Physical Examination Constitutional: BP: 161/98, WT: 198 lbs, HT: 5 11 Cardiovascular: clear to both palpation and auscultation, abdominal aorta wnl, no carotid bruits, no pedal edema, extremities normal Respiratory: CTA, normal respiratory effort GI: Not tenderness or masses, no organomegaly Neurologic: patient alert and oriented, memory and attention span in tact, CN II-XII intact Skin: no cyanosis, warm, dry Musculoskeletal: ROM normal upper extremities Psychiatric: normal affect, judgment intact Assessment/Plan 1. Diabetes, type II, stable 2. HTN, elevated, EKG ordered/performed, shows normal sinus rhythm, Atenolol 50mg/day, prescription written HPI 4+ ROS 3 PFSH Chief Complaint: Established patient: DM and HTN follow up Duration (1+ year) Location (chest) Severity ( BPs up to 160/110) Quality (dull, full ) Timing or Context (following exercise) Constitutional C/V Neurologic 1 of 3 Past history (meds/multivitamins) 4 HPI, 3 ROS, 1 PFSH Detailed History Remember, 2/3 required 31

32 Physical Examination 1995 Guidelines Cardiovascular, Skin, Psychiatric, Constitutional, Respiratory, GI, Neuro, Musculoskeletal Comprehensive (8 organ systems) 1997 Guidelines Vitals (1 element) C/V (6 elements *detailed*) Resp (2 elements) GI (1 element) Psych/Neuro (2 elements) Skin (1 element) Musculoskeletal (2 elements) Detailed (15 elements) Medical Decision Making Number of Diagnoses and/or Management Options HTN, worsening = 2 pts DM well-controlled = 1 pt (3 Total) Amount/Complexity of Data EKG (ordered and personally reviewed) (1 point, right?) Overall Risk One chronic stable, 1 chronic worse Prescription MGT = Moderate Remember: You need 2 out of 3 Moderate MDM Who? Established patient Where? Office PULLING IT ALL TOGETHER Key Components History Problem Focused Expanded Problem Focused Examination Problem Focused Expanded Problem Focused Detailed Detailed Need 2/3 Key Components Comprehensive Comprehensive MDM Straightforward Low Moderate High 10min 15 min 25 min 40 min Start in highest level! CPT ICD-9-CM 401.1, Discuss chief complaint the lack of Addressed as 1 issue not 2 Not addressed Modifying factor HPI = 1 ROS = 1 PFSH = 3 H = EPF Quality Instead use as constitution ROS MDM #1 = 1 est stable MDM #2 = 1 (labs) TR = low (chronic stable) Truly cardio, no muscle Exam = EPF 2 no detail MDM = SF H = EPF E = EPF = EPF MDM = SF 32

33 X Should a doc bill 99213? Why? Ø Says acute problem and 2 admit, but no info to support Modifying factor HPI=4 PFSH=2 ROS=10 H=C Quality 1 No other exam documented EXAM = PF location Both not valid documentation assoc sigh/symp contradictor MDM #1 = 2 MDM #2 = 3 labs rec review TR = Mod MDM = Mod H = C E = PF MDM= M Count as time lasted? No 33

34 X Not enough exam nor MDM nor time doc d Ø Chronic exacer bated Blue = 1995 Red = 1997 HPI = 2 and status of 3 chronics ROS = 10 PFSH = 3 H = EPF if 95, but C if 1997 Doing well = stable = quality } But already using mf in gait Really- No HPI elements to help Will count as bullet Not valid terminology No credit under 97 Not on the list ie = stable Modifying factor Exam = C (1995) B = bullets

35 MDM #1 = 4 MDM #2 = 1 (labs) TR = MOD MDM = Moderate X Higher level supported 1995 H = EPF E = C = MDM = M 1997 H = C E = D = MDM = M Ø Yes, admin code and others HIP = 4 ROS = 7 PFSH = 2 H = D location Explain why Modifying factor? quality ROS Do you consider a true Fhx? ( ) MODIFYING FACTOR ) ( ROS???Not mentioned in HPI at all 2 HPI Also HPI Consistent Chronic stable problems Exam = 9 = Comp Counted above But here for follow up per HPI?? 7 MDM #1 4 pts MDM #2 Ø pts TR Moderate MDM = Moderate HPI H = D E = C MDM = M Med nec also supports So this was an IM injection? Need more info 35

36 X The is supported, but the documentation doe support a Ø Yes 99214, 96372, J1020 Both consistent 1 2 Exam = Comp Findings only negatives ENT only 3 Severity? Does this change the level of HPI? So why worry? Full Range Of Motion Lympadenopathy 10 Not HPI is ROS Would allow as past hx, because... History HPI = 1 ROS = 1 PFSH = 2 HX = EPF Plan of care 3 points no points mod = low level complex Social history, but really no past hx Not valid family hx X Hx and MDM do not support Incident-to Services Copyright

37 Incident-to Services Incident to a physician s professional service means that the services are furnished as an integral, although incidental part of the physician s personal professional services in the course of diagnosis or treatment of an injury or illness Billing for services performed by staff under the physicians billing information Why? Ancillary personnel - to be reimbursed for the work they perform Midlevel providers - to gain the additional reimbursement Incident-to Services There are 2 types of incident-to services Those performed by auxiliary personnel Those performed by non-physician providers (ARNP, PA-C, FNP etc.) Services and supplies having their own benefit category are not subject to incident to guidelines: Radiology services and other services requiring a certain level of supervision as stated in the Medicare Physician Fee Schedule Data Base ANCILLARY PERSONNEL (NURSING STAFF) Services billed with E/M code Examples: Wound care for a patient previously assessed by the physician Patient presented for routine injection and has questions or side effects requiring medical decision making and/or input from the physician NON-PHYSICIAN PROVIDERS Services billed with E/M codes as supported by documentation Treatment of patients currently under a plan of care from the physician No new patients No new problems Incident-to Services Who Can Supervise Incident To? Physicians Non-physician practitioners (with some limitations) INCIDENT-TO SERVICES Non-physician practitioners that are enrolled as Medicare providers may: Submit claims under their own NPIs, or Submit claims as incident to the physician, as long as all incident to criteria are met. NPPs may also supervise incident to services, if the NPPs are also employed by the practice. 37

38 Incident-to Services Part B Billing (e.g., office) services must be: An integral, although incidental, part of the physician s professional service Of a type that are commonly furnished in a physician s offices or clinics Furnished by the physician or ancillary personnel under the physician s direct supervision Incident to services include not only evaluation and management (E/M) services, but can also include: Minor surgeries Applying and removing casts Professional component of radiology services Incident-to Services Services meet the description of incident-to services when they are: MD/DO or NPP (when ancillary personnel are working incident-to the NPP) performed a previous evaluation and management (E/M) service and determined the patient s diagnosis and the plan of care (POC) MD/DO or NPP (when ancillary personnel are working incident-to the NPP) performs subsequent services of a frequency which reflects his/her active participation in and management of the course of treatment Determination of the frequency of subsequent visits should be medically appropriate for the patient s condition Increasing with the degree of instability and uncertainty of the situation Medical record does not have to show that any subsequent services will be with a NPP or ancillary staff Services cannot be billed as incident to for a new patient or a new problem This guideline is not overridden by physician set protocols in the office Incident-to Services Requirements of Direct Supervision The billing MD/DO or NPP must provide direct supervision In the designated office area and immediately available to provide assistance and direction The supervising practitioner does not need to see the patient each time an incident to service is provided Practitioner has an office within an institution Office must be a specific designated space, not the entire institution Availability of the practitioner by telephone or the presence of the practitioner elsewhere in the institution does not meet direct supervision requirement Physician must be immediately available to furnish assistance and direction Not just emergency responses, but also to take over the performance of the service Incident-to Services Supervision requirement is met in physician clinic situations when There is a supervising physician responsible for the services performed by the NPPs and ancillary staff Physician need not be the physician who determined the patient s plan of care Does not have to be the same specialty as the originating physician, but do have to be members of the same group, using same tax ID number Billing is under the supervising physician (not physician who created plan of care) Incident-to Services Incident to Supported: The billing MD/DO determines the plan of care (POC) NPP or ancillary staff continue the treatment determined by the billing provider Incident to NOT Supported Changes in the plan including changing a drug or the dosage of the same drug constitute a new POC No longer meet the requirements for incident to Services are billed under the NPP provider number Incident-to Services Signature Requirements For Medicare purposes, the MD/DO or Supervising NPP billing the service is not required to sign documentation prepared by the NPP or ancillary personnel Signature of the person performing the service is required Co-signing a note does not qualify the service as incident to; all requirements must be met Incident to requirements for Medicare billing in the clinic are separate and distinct from any facility or group rule requiring all services must be signed by the physician 38

39 Split/Shared Services Split/Shared Services A split/shared visit is a medically necessary encounter with a patient, where the physician and a qualified NPP each personally perform a substantive portion of an E&M visit faceto-face with the same patient on the same date of service This service is NOT performed by ancillary personnel Copyright SPLIT/SHARED SERVICES Services provided in an office setting Must meet the incident to guidelines, split/shared visits are not supported in the clinic (exception is a provider-based billing clinic (hospital owned)) Services provided in a facility setting Do not have to meet the incident to guidelines, but do have to meet the split/shared guidelines PROVIDER BASED CLINICS Provider-based or Hospital Outpatient Clinic refers to the billing process for services provided in a hospital outpatient clinic or location. This is a Medicare status for hospitals and clinics that meet specific Medicare regulations and requires that we bill Medicare in two parts (Part A and Part B). Split/Shared Services It is NOT sufficient for MD to note seen and agree or simply countersign; he/she must specifically document what he/she has personally done The following are NOT valid forms of documentation "I have personally seen and examined the patient independently, reviewed the PA's History, exam and MDM and agree with the assessment and plan as written" signed by the physician "Patient seen" signed by the physician "Seen and examined" signed by the physician "Seen and examined and agree with above (or agree with plan)" signed by the physician "As above" signed by the physician Documentation by the NPP stating "The patient was seen and examined by myself and Dr. X., who agrees with the plan" with a co-sign of the note by Dr. X No comment at all by the physician, or only a physician signature at the end of the note Split/Shared Services The medical record should clearly identify the part(s) of the E/M service which were personally provided by the physician, and which were provided by the NPP. In the absence of such documentation, the service may only be billed under the NPP's provider number per CMS IOM Publication , Chapter 12, Section (B). 39

40 Signature Requirements: Split/Shared Services Documentation Specifics Both the NPP and the physician must sign the documentation. Copyright Documentation The same E/M documentation guidelines for physicians are also applicable to and expected of NPP s. The medical record should be complete and legible. The documentation of each patient encounter should include: The reason for the encounter and relevant history, physical examination findings, and prior diagnostic test results Current assessment, clinical impression or diagnosis Medical plan of care Date and legible identity of the person providing the service. If not documented, the rationale for the ordering diagnostic and other ancillary services should be easily inferred. Place of Service Specifics Copyright Place & Type of Service Specifics TYPE OF SERVICE ALLOWED PLACE/TYPE OF SERVICE NOT ALLOWED PLACE/TYPE OF SERVICE Office/clinic Hospital Inpatient/Outpatient INCIDENT-TO Patients home Emergency Department SERVICES Institution (nursing home) SNF Office in SNF/NF/Hospital Ambulance/EMT TYPE OF SERVICE ALLOWED PLACE/TYPE OF SERVICE NOT ALLOWED PLACE/TYPE OF SERVICE Office Services TYPE OF ENCOUNTER INCIDENT-TO SERVICE SPLIT/SHARED SERVICE New Patient ( ) NOT ALLOWED NOT ALLOWED Established Patient ( ) Consult Services ( ) Documentation of encounter being reviewed along with the visit that originate the current POC NOT ALLOWED Documentation by BOTH providers indicating their portion of the encounter AND signed by both (Provider-based only) For Medicare, these are now regular E/M codes and split/shared are fine SPLIT/SHARED SERVICES Provider-based clinic Hospital Inpatient/Outpatient Emergency Department Hospital Observation Office/clinic Domiciliary/SNF/NF Critical Care Services Procedures Prolonged Services ( ) NOT ALLOWED Documentation by BOTH providers indicating their portion of the encounter AND signed by both Hospital Discharge Patients Home 40

41 Hospital Based Services Other Facility Services TYPE OF ENCOUNTER INCIDENT-TO SERVICE SPLIT/SHARED SERVICE TYPE OF ENCOUNTER INCIDENT-TO SERVICE SPLIT/SHARED SERVICE IP Services ( ) Emergency Department ( ) Critical Care Services ( ) NOT ALLOWED NOT ALLOWED NOT ALLOWED Documentation by BOTH providers indicating their portion of the encounter AND signed by both Documentation by BOTH providers indicating their portion of the encounter AND signed by both NOT ALLOWED Initial NF Care ( ) Initial Domiciliary ( ) Initial Home Service ( ) Subsequent NF Care ( ) Domiciliary/Rest Home ( ) Subsequent Home Service ( ) NOT ALLOWED ONLY services performed in designated office area Additionally, visit with original POC and current encounter documentation will be required for review NOT ALLOWED NOT ALLOWED Care Plan Oversight Domiciliary/Rest Home ( ) NOT ALLOWED NOT ALLOWED WHAT YOU LL NEED How to Audit for these services Medical record Copy of billing claim form Physician and NPP/Ancillary staff schedules Important to verify that a supervisor was in the clinic during the encounter and that encounter was billed out under correct provider. Copyright FORMULATE A QUESTIONNAIRE TO ASSIST INCIDENT-TO QUESTIONS Create a separate set of questions for Incident-to audits vs. Split/Shared visit audits Audits not only assess if the correct E/M code was used, but more important were the supervision rules for these types of services followed. Does the medical group have an actual policy regarding Incident-to? Part of the compliance plan should be scheduling guidelines for patients who are being seen incident-to; the frequency they need to be scheduled with the physician directly. 41

42 INCIDENT-TO QUESTIONS INCIDENT-TO QUESTIONS Is the NPP credentialed with Medicare? Are the services being provided in the office setting (POS 11)? If the service does not meet incident-to requirements we will need to submit the claim directly under the NPP s NPI. If not, chances are incident-to guidelines do not apply INCIDENT-TO QUESTIONS INCIDENT-TO QUESTIONS Are service rendered in a provider based setting? If so, stop as incident-to guidelines do not apply in this setting. Use split/shared service rules instead Are services performed in accordance with state law? Verify NPP or ancillary staff are performing services permitted under their applicable license INCIDENT-TO QUESTIONS INCIDENT-TO QUESTIONS Prior to the NPP providing services to the patient has the diagnosis and plan of care been established by the supervising physician? If not, this is a new problem or new patient and service cannot be billed incident-to. Bill under the NPP billing numbers. Is there evidence of physician involvement on a reasonable basis (every 3 rd or 5 th visit depending on the practices policy)? May question incident-to rules are being followed if the physician has not seen the patient in over a year 42

43 INCIDENT-TO QUESTIONS INCIDENT-TO QUESTIONS When an NPP is providing services in the office setting is there a supervising physician present to ensure the requirements of Direct Supervision are being met? Does the NPP have their own appointment schedule? If not, how does patient flow between the NPP and MD work? Verification of the physician schedules checked against the billing physician must occur How is billing determined between those encounters billed under the MD and those under the NPP directly? INCIDENT-TO QUESTIONS Do your NPP s treat new patients or only established patients? What happens if an established patient is seen by the NPP for a new problem? Do they treat and bill under themselves or have the patient reschedule under the MD? INCIDENT-TO QUESTIONS Did you review the physicians documentation to verify that they set the plan of care? If the physician has not seen the patient for that problem, this is not an incident to service. INCIDENT-TO QUESTIONS If the patient was seen for a new problem or issue are they seen by the physician OR is the service billed under the NPP New problems cannot be treated and billed incident to INCIDENT-TO QUESTIONS If there was no physician supervising the NPP, were those services billed out under the NPP? There must be an MD/DO in the clinic. This does not need to be the physician who set the plan of care 43

44 SPLIT/SHARED QUESTIONS SPLIT/SHARED QUESTIONS Have both the physician and NPP seen the patient? Did they both perform a substantive portion of the service? Did both the NPP and the physician sign the note? A substantive portion is defined by each provider performing elements of the history and examination and participating in the development or carrying out of the POC If both have not signed, it s not a split/shared encounter SCENARIOS Scenario #1 Patient presents to the clinic for initial evaluation of low back pain. The physician has been called out to the ER for an emergent case, so the NP is going to see the patient. During the encounter, the NP obtains the history, examines the patient, orders x-rays, creates a plan of care that includes obtaining an MRI. The NP documents the encounter and signs the note. Upon returning to the office the physician reviews the chart and countersigns the note. Copyright Scenario #2 You are auditing a group of hospitalists. During the audit, you note that one of the charts, handwritten, appears to have two different styles of writing and is signed by a PA and an MD. SCENARIO #3 NP is called to the ER to consult a patient and the NP decides to admit the patient. Is this billable as incident-to? 44

45 SCENARIO #4 SCENARIO #5 Patient is discharged from OBS to home and the service is billed incident-to. Is this correct? Patient presents to the office for repeat UA after treatment for UTI. Patient meets with lab tech, who performs and documents adequately the medical evaluation of the patient and performs the UA which is normal. Patient advised to return PRN. Is this visit billable under incident-to? SCENARIO #6 Need more resources on incident-to and split/shared services? In a SNF a NP follows up on a patient that had a UTI. The encounter was billed incident-to, how would this be possible in a SNF? DoctorsManagement has an Incident to & Split/Shared Visit Guide Resource Guide Will Include: More information and clarity on incident-to and split/shared services Specific examples and scenarios Payer specific information Thank you! Sean M. Weiss, Partner sweiss@drsmgmt.com John F. Burns, Senior Consultant jburns@drsmgmt.com 45

46 Essentials for Smooth Transition to ICD-10-CM The Time Has Come to Embrace ICD-10 Sara San Pedro CPMA, CPC, CEMC, CCP-P Approved NAMAS Instructor AHIMA-Approved ICD-10 PCS/CM Trainer Learning Objectives 1. Assess documentation enhancements that need to occur to comply with increased code specificity, 2. Outline clinical concepts and their application to proper ICD-10-CM code assignment, and 3. Apply effective tips to avoid documentation transition issues ICD-10 Grace Period: Good News But Not Deliverance On July 6, the American Medical Association and the Centers for Medicare & Medicaid Services jointly announced elements of a oneyear grace period for the Oct. 1, 2015, implementation of the ICD- 10. Physician leaders from multiple states have been pleading with the federal government to help providers dodge reporting and cash flow disasters. What the Grace Period Is NOT It is not a delay of ICD-10. Starting Oct. 1, 2015, you still must use ICD-10 codes on your claim forms and an ICD-10 code from the right family of codes. Medicare and other payers will not pay you if you don t use ICD-10 codes as of Oct. 1. What the Grace Period IS A giant burden slightly eased, TMA President Tom Garcia, MD The grace period gives practices and Medicare payers time to adjust to the new system and work out problems without threat of crippling payment delays or penalties for physicians. CMS says the grace period entails the following: Specificity: For one year starting Oct. 1, 2015, Medicare will not deny claims solely on the specificity of the ICD-10 diagnosis codes as long as the physician submitted an ICD-10 code from an appropriate family of codes. Medicare will not audit claims based on the specificity of the diagnosis codes as long as they are from the appropriate family of codes. 1

47 CMS says the grace period entails the following: Problem resolution: CMS will establish an ICD-10 ombudsman to help receive and triage physician and provider problems that need resolution during the transition a representative for providers to avoid maladministration of ICD-10 Advance payments: CMS will authorize advance payments if Medicare contractors (e.g., Novitas Solutions) are unable to process claims within established time limits because of problems with ICD- 10 implementation. CMS: Clarifying Questions & Answers Q#3: Valid ICD10-CM Codes If the submitted code is not recognized as a valid code, the claim will be rejected. C81 (Hodgkin s lymphoma) =NOT A VALID CODE C81.00 Nodular lymphocyte predominant Hodgkin lymphoma, unspecified site C81.03 Nodular lymphocyte predominant Hodgkin lymphoma, intra-abdominal lymph node Specificy & NCDs/LCDs Specificy & Other Payors July 6, 2015 CMS/AMA Joint Announcement and Guidance Regarding ICD-10 Flexibilities Coding in ICD 10 CM ICD 9 CM Three to five digits First digit is numeric but can be alpha (E or V) ICD 10 CM Three to seven characters First character always alpha 2 5 are numeric All letters used except U Always at least three digits Character 2 always numeric: 3 7 can be alpha or numeric Decimal placed after the first three characters (or with Always at least three digits E codes, placed after the first four characters) Alpha characters are not case sensitive Decimal placed after the first three characters Alpha characters are not case sensitive Building an ICD-10-CM Code Alpha (Except U) XAMS X0 X2. X6 X5 Xx XA Category 2 Numeric 3 7 Numeric or Alpha. 3 7 Characters Etiology, anatomic site, severity Additional Characters Added 7 th character for obstetrics, injuries, and external causes of injury ICD 10 CM Book Tabular: S02.65XA Locating an ICD-10-CM Code 1. Locate the term in the Alphabetic Index Alphabetical list of terms (e.g., fracture, pain) 2. Verify the code in the Tabular List Never assign codes directly from the Index This should come as no surprise it s just like ICD 9 CM Draft Official Guidelines for Coding and Reporting Located at the beginning of every ICD 10 CM book Download 2016 from CMS: ICD 10 CM Guidelines.pdf 2

48 Coding Conventions in ICD-10-CM: Coding Manual Instructions: Default Codes First listed term in Index, represents condition most commonly associated with the main term. May be used when documentation does not facilitate a more specific code. With/Without When with or without are the two options for the final character of a set of codes, the default is always WITHOUT Code First/Use additional code Instructional notes that signal the coder that an additional code should be reported for complete reporting of the condition Underlying condition sequenced FIRST, followed by manifestation Code Also: Alerts coder that more than one code may be required to fully describe condition. Sequencing is determined by severity and reason for the encounter. Placeholder X ICD-10-CM uses a placeholder X To allow for future expansion to the code set Common with poisoning, adverse effects, and under-dosing codes (T36- T50) If neglected, code will be invalid Example: Exhaustion due to excessive exertion T73.3 (requires 7th character w/o 5th or 6th character T73.3XXA (7th character to describe encounter type) 7th character A for INITIAL encounter ICD-10-CM Bizarre Codes Chapter 20: External Causes of Morbidity: Y93.1 Accident while knitting or crocheting Z63.1 Problems in relationship with in-laws W55.1 Bitten by a cow Source: Modern Economist Article Titled 20 Bizarre new ICD10 codes 6/16/15 Similar to ICD-9-CM, no national requirement for mandatory external cause code reporting. Unless you are subject to a State-based external cause code reporting mandate or these codes are required by a particular payer Keys to Success ICD-10 s greatest challenges Specificity Consider laterality, approach, combination codes, sequencing rules, etc. Granularity In simple terms, the word granularity relates to greater levels of detail within the code set and the ability to expand within the code set Physician documentation This will be crucial to ICD-10 success If it is not documented, physicians will be queried or unspecified codes will be assigned All care documentation should include the patient s condition, severity, comorbidity, complications, risk, complexity, and disease cause Physicians use only a Small Subset of ICD-10 Codes 34,250 (50%) of all ICD-10-CM codes are related to the musculoskeletal system 17,045 (25%) of all ICD-10-CM codes are related to fractures ~25,000 (36%) of all ICD-10-CM codes to distinguish right vs. left Only a very small percentage of the codes will be used by most providers Coding and Reporting of Services Reimbursement depends on services described by CPT codes--coding is the basis for reimbursement What you did Physicians will still use CPT codes for professional services Diagnosis codes support medical necessity for services delivered Why you did it Understanding coding guidelines helps providers to optimize reimbursement Providers must establish integrity in the health care system Document necessity services Illustrate complexity of services 3

49 Hospitals ICD-10 Procedure Changes: Diagnosis and Procedure Code Changes Under ICD-10-PCS (Hospital Inpatient Only), procedures will now be created based on the surgeon s documentation in the operative note. The surgical/procedure code will be built on: Type of surgery/procedure Body system Root operation or procedure ( excision/resection of whole or partial organs/tissue) Body part Approach Device/Implant (need specification, allograft, porcine/bovine) Qualifiers (i.e., biopsy, 2nd site, etc.) Collateral Benefits of ICD-10 Do I get paid more? What s in it for me? ICD-10 offers a more accurate system to determine payments: Greater detail on the quality of care provided Government payers, insurers, hospitals, health systems, medical groups and others will use ICD-10 s granular data to determine: Accurate and fair physician compensation Reimbursement for goods and services ICD-10 codes are used for clinical research, severity of illness, quality metrics, morbidity and mortality calculations, and billing Why Replace ICD-9-CM? Medical Record Documentation ICD-9-CM is 40 years old (used since 1975) Terminology & classification of some conditions are outdated & obsolete Outdated codes produce inaccurate & limited data Increasingly lacking specificity Anticipated benefits of an Electronic Health Record cannot be achieved without changing to ICD-10-CM/PCS (CAC) Comparison of International data is hindered The success (or failure) of ICD-10-CM to be successfully implemented rests in the quality of the documentation. Electronic Medical Records Paper Charts Problem Lists Past Medical History What is Medical Documentation? Chronological record of care the patient received for each episode of care. Required to record pertinent facts, findings, and observations about an individual's current health status, and history including past /present illnesses, examinations, tests, treatments, and outcomes. The medical record clearly identifies what the patient is being seen for and what is included in their current plan of care (along with any comorbidities and conditions impacting their health care status!) Facilitates the ability of physician and other health care professionals to evaluate and plan the patient's immediate treatment, and to monitor his/her health care over time. Allows for communication & continuity of care of all healthcare professionals involved in the patient's care. Documentation - Why else?? Secondary reasons for quality documentation Accurate & timely claims review and payment; Appropriate utilization review and quality of care evaluations; Collection of data that may be useful for research and education; An appropriately documented medical record serves as a legal document to verify the care provided and can reduce many of the "hassles" associated with claims processing, if necessary. 4

50 Documentation and Payment: Payers require reasonable documentation to ensure that a service is consistent with the patient s insurance coverage and to validate: Site of service; Medical necessity and appropriateness of the diagnostic and/or therapeutic services provided; and/or Services furnished have been accurately reported. CMS MedLearn Network-E&M Services Guide-2014 ICD-10-CM: correct diagnosis coding in ICD-10 will require absolute specificity of clinical conditions being treated. Payment will likely be tied to accurate documentation and reporting of clinical conditions. Using ICD-10 to your advantage Accurate and complete documentation and coding provides opportunities to support the transition into a value-based, accountable care reimbursement environment. Better representation of severity and risk Recognition of varying levels of complexity Better claim information to support automated processing and more rapid reimbursement Opportunities to reduce audit risk exposure Improved business intelligence to support population risk management More accurate measures of quality and efficiency Medicare is Accelerating the Transition to Value Based Purchasing We are shifting the landscape of payment in health care from Fee-for Service to Fee-for VALUE (quality + cost) 2014 Nuance Communications, Inc. All rights reserved. 28 Code Capture: The Official ICD-9 Coding Guidelines state that a condition must exist at the time of the encounter and affect patient care or management and be documented in order to be coded as a diagnosis. Four factors that help providers to establish the presence of a diagnosis during an encounter in proper documentation are: M-monitoring Signs, symptoms, disease progression, disease regression E-evaluating test results, medication effectiveness, response to treatment A-assessing/addressing ordering tests, discussion, review records, counseling T-treatment medications, therapies, other modalities 21 Clinical Concepts Type Temporal factors Caused by/contributing factors Symptoms/Findings/ Manifestations Localization/Laterality Anatomy Associated with Severity Episode Remission status History of Morphology Complicated by External cause Activity Place of occurrence Loss of consciousness Substance Number of gestations Outcome of delivery BMI 5

51 Clinical Concept: Type Clinical Concept: Temporal Factors Condition that is considered a type of a condition Diabetes mellitus: type 1 or type 2 Fractures: pathological or traumatic Skin ulcers: pressure or non-pressure Capture timing of the illness or disease process Acute Chronic Acute on chronic Sub acute Recurrent Intermittent Document: COPD vs. Chronic COPD If these factors are not documented, providers may need to be queried Clinical Concept:Caused by/contributing Factors Result of another condition Irritant Allergy Trauma Exertion Drug induced Example, M10.2 Drug induced gout 5 th character identifies joint 6 th character identifies laterality Document: Gout of great toe vs. Gout of right great toe due to hyperuricemia Clinical Concept: Symptoms/Findings/Manifestations Help identify the severity of the patient condition Vomiting Bleeding Stabbing Shooting Throbbing Example: G44.85 Primary stabbing headache Clinical Concept: Localization/Laterality Should always be documented Right Left Bilateral Distal Proximal Oblique Example: Fracture codes for clavicle include: Acromial (Distal) end: S Shaft: S Sternal (Proximal) end: S Clinical Concept: Associated With Link with other clinical conditions Behavioral disturbances Dementia Psychosis Sleep disorders Withdrawal Example: F Alcohol dependence with withdrawal delirium 6

52 Clinical Concept: Severity Exacerbations (diabetes mellitus, COPD) Mild, moderate, or severe (asthma) Intractable or not intractable (headaches) With or without status migrainosus or epilepticus (migraine and epilepsy) Example: J44.1 Chronic obstructive pulmonary disease with (acute) exacerbation Clinical Concept: Episode of Care Injuries, poisonings Initial Subsequent Sequela Fractures Pathologic, stress, traumatic (be mindful of 7 th characters) Other Clinical Concepts Straightforward concepts, still important documentation Remission status History of (Z80-Z92) Morphology External cause Place of occurrence Activity Substance Number/weeks of gestations (category Z3A) Outcome of delivery (category Z37) BMI (category Z68) Chapter 20 includes this information Application of ICD-10-CM Concepts 1. Fractures 2. Hypertension 3. Diabetes mellitus 4. Dermatitis 5. Osteoarthritis 6. Headache 7. Sinusitis (Asthma) 8. Overweight and obesity 9. Mental Health 10. Gynecology & Pregnancy Major Change to Chapter Organization Injuries grouped by body part rather than category of injury Head Neck (S00 S09) (S10 S19) Fractures Fractures Displaced vs. Nondisplaced Location Type Greenstick Transverse Oblique Spiral sequela) Subsequent further defined as (routine healing, delayed healing, nonunion or malunion) Open vs. Closed Open fractures further defined with the Gustilo system (Type I, II, IIIA, IIIB, IIIC) Thorax (S20 S29) Comminuted Segmental Other Unspecified Episode of Care (initial, subsequent, 7

53 Fractures Anatomic specificity/displacement/open or closed Not indicated as displaced or nondisplaced should be coded to displaced Not designated as open or closed should be coded to closed Episode of care: Initial [open/closed] Subsequent [routine healing, delayed, malunion, nonunion] Sequela Specificity for open fractures of the forearm, femur, and lower leg Gustilo I, II, IIIA, IIIB, or IIIC Fractures: 7 th Characters A initial encounter for closed fracture B initial encounter for open fracture D subsequent encounter for fracture with routine healing G subsequent encounter for fracture with delayed healing K subsequent encounter for fracture with nonunion P subsequent encounter for fracture with malunion S sequela Fractures: Initial Encounter Used while the patient is receiving active treatment for the condition; Surgical treatment, emergency department encounter, and evaluation and continuing treatment by the same or a different physician While the patient may be seen by a new or different provider over the course of the treatment of an injury, assignment of the 7th character is based on whether the patient is undergoing active treatment and not whether the provider is seeing the patient for the first time Fractures: Subsequent Encounter Used for encounters after the patient has received active treatment for the condition and is receiving routine care for the condition during the healing or recovery phase Cast change or removal An x-ray to check healing status of fracture Removal of external or internal fixation device Medication adjustment Other aftercare Follow-up visits following treatment of the injury or condition Fractures: Sequela Use for complications or conditions that arise as a direct result of a condition For example, scar formation after a burn. The scars are sequela of the burn When using 7th character S, it is necessary to use both the injury code that precipitated the sequela and the code for the sequela itself The S is added only to the injury code, not the sequela code The 7th character S identifies the injury responsible for the sequela The specific type of sequela (e.g., scar) is sequenced first, followed by the injury code Fracture Example 9 year old with Colles fracture of the right distal radius S52.531A - Colles' fracture of right radius, initial visit S52.531D - Colles' fracture of right radius, subsequent visit for cast change/xrays S52.531P - Colles' fracture of right radius, malunion identified by x-ray One year post-fracture evaluation Z47.89 Encounter for other orthopedic aftercare Assuming surveylance only (not subsequent ) Aftercare Z-codes are not to be used for aftercare for injuries or poisoning, rather assign injury code with 7 th character D in order to demonstrate subsequent encounter. 8

54 Fractures: Gustilo Open Fracture Classification B initial encounter for open fracture type I or II (open NOS or not otherwise specified) C initial encounter for open fracture type IIIA, IIIB, or IIIC E subsequent encounter for open fracture type I or II with routine healing F subsequent encounter for open fracture type IIIA, IIIB, or IIIC with routine healing H subsequent encounter for open fracture type I or II w/delayed healing J subsequent encounter for open fracture type IIIA, IIIB, or IIIC w/delayed healing M subsequent encounter for open fracture type I or II with nonunion N subsequent encounter for open fracture type IIIA, IIIB, or IIIC w/nonunion Q subsequent encounter for open fracture type I or II with malunion R subsequent encounter for open fracture type IIIA, IIIB, or IIIC with malunion Fractures - Example ATTENDING SURGEON: James Jones, MD PREOPERATIVE DIAGNOSIS: Left closed temporal skull fracture POSOPERATIVE DIAGNOSIS: Left closed temporal skull fracture Procedure: Elevation of the depressed skull base fracture, result of fall at home while climbing stairs at home Index: Fracture, traumatic, skull, temporal bone (S ) Tabular: S02.19 S02.19X- (Remember the placeholder x ) S02.19XA (Initial encounter for closed fracture) W10.8XXA (External cause; fall, stairs, other, initial encounter) Y (Place of occurrence; single family residence) Y93.39 (Activity; other climbing) Hypertension No longer classified as controlled or uncontrolled, malignant, benign Very important to document the causal relationship between hypertension and heart disease Heart failure type specificity: Acute, chronic, acute on chronic Systolic, diastolic, combined systolic and diastolic Hypertension With Heart Disease ICD-10-CM Coding Guideline I.C.9.a.1, Hypertension with heart disease, states: Heart conditions classified to I50.- or I51.4-I51.9 are assigned to a code from category I11, Hypertensive heart disease, when a causal relationship is stated (due to hypertension) or implied (hypertensive). Use an additional code from category I50, heart failure, to identify the type of heart failure in those patients with heart failure. The same heart conditions with hypertension, but without a stated causal relationship, are coded separately. Hypertensive Diseases Essential (I10) Hypertensive heart disease (I11.-) With or Without heart failure If heart failure is present document the type of heart failure Hypertensive chronic kidney disease (I12.-) Identify stage of kidney disease Hypertensive heart and chronic kidney disease (I13.-) Hypertensive heart and chronic kidney disease with heart failure and stage 1-4 chronic kidney disease Hypertensive heart and chronic kidney disease without heart failure Identify stage of kidney disease Hypertensive heart and chronic kidney disease with heart failure and stage 5 or end stage kidney disease Hypertensive Heart/Renal Disease Hypertensive heart disease There must be a causal relationship documented Must use a second code to specify the type of heart disease I11.0 (Hypertensive heart disease with heart failure) I50.23 (Acute on chronic systolic heart failure) Hypertensive chronic kidney disease I12.9 (Hypertensive chronic kidney disease, stage 1-4 CKD) N18.3 (CKD, stage 3) If patient is in kidney failure, assign code to demonstrate N17.9 (Acute kidney failure, unspecified) 9

55 Hypertension: Tobacco History Coded for many respiratory and cardiovascular conditions exposure to environmental tobacco smoke ( Z77.22) history of tobacco use ( Z87.891) occupational exposure to environmental tobacco smoke ( Z57.31) tobacco dependence ( F17.-) tobacco use ( Z72.0) Hypertension - Example 39-year-old former smoker presents for evaluation of elevated blood pressure realized when he visited a local pharmacy. The BP reading was 160/98. The patient became concerned and presented for further evaluation. He was a 1ppd smoker for approximately 10 years but quit more that 3 years ago. I10 Hypertension, essential (primary) OR R03.0 Elevated Blood Pressure reading without diagnosis of hypertension Z History of tobacco use Hypertensive Heart Disease - Example Code the following: Stage 3 chronic kidney disease with congestive heart failure (CHF) due to hypertension. I13.0 Hypertensive heart and chronic kidney disease with heart failure and stage 1 through stage 4 chronic kidney disease, or unspecified chronic kidney disease I50.9 Failure, heart, congestive N18.3 Chronic kidney disease, stage 3 (moderate) Acute MI STEMI and NSTEMI are now codeable terms Document location: Anterior (left main coronary, left anterior descending, other coronary artery), Inferior (right coronary artery, other), Other (left circumflex, other sites) An AMI is considered acute under ICD-10 if it occurred within the past 4 weeks (was 8 weeks under ICD-9) - document Subsequent AMI NEW Defined as an AMI occurring within 4 weeks of previous AMI, regardless of site Diabetes Mellitus No longer controlled, uncontrolled Diabetes with hyperglycemia or hypoglycemia E Type 2 diabetes mellitus with hypoglycemia without coma E11.65 Type 2 diabetes mellitus with hyperglycemia New classification - Specify type: Diabetes mellitus due to underlying condition (E08) Drug or chemical induced diabetes mellitus (E09) Type 1 diabetes mellitus (E10) Type 2 diabetes mellitus (E11) Other specified diabetes mellitus (E13) Diabetes Coding in ICD-10-CM In ICD-10-CM, diabetes mellitus codes are combination codes that capture: a. Diabetes type, b. Any body system impacted (e.g., ophtho, neuro, renal, etc.) and c. Complications affecting that body system. EXAMPLE: E11.22 Type 2 diabetes mellitus with diabetic chronic kidney disease (code also stage of chronic kidney disease; long-term insulin use) Link any manifestations or complications in the documentation 10

56 Diabetes Mellitus - Example A 57-year-old man with poorly controlled DM II presents with diabetic ulcer on the LT foot. The patient is insulin dependent and has an admittedly poor history of poor diet (noncompliant). E Type 2 diabetes mellitus with foot ulcer L Non-pressure chronic ulcer of other part of left foot Z79.4 Long term (current) use of insulin Z91.11 Patient s noncompliance with dietary regimen diet Dermatitis The terms dermatitis and eczema are used synonymously and interchangeably for coding purposes Anatomic specificity Rather than just trunk, now specificity for abdominal wall, back, chest wall, groin, perineum, umbilicus Cellulitis and Acute Lymphangitis (L03.-) Location Finger and Toe Other parts of limb Face and neck Trunk Other Unspecified Type Cellulitis Acute lymphangitis Pressure Ulcers New combination codes: Example: L89.113= Ulcer, pressure, back, right upper, stage 3 Document anatomic location (site), laterality & Severity by stage Unstageable Does not equal unspecified State unstageable and the reason it cannot be staged. i.e.: Presence of skin muscle graft Neoplasms: Laterality now included New category of malignancies: overlapping sites Example: malignancy of uterus: isthmus and fundus would now be coded as overlapping sites if documented by surgeon Reason for admission (very important to document) Malignant Melanoma of Skin: In addition to more anatomic specificity, be sure to include whether malignant melanoma or melanoma in situ & laterality Hyperthyroidism and Hypothyroidism: Recommended documentation: Hypothyroidism (E03.9 Hypothyroidism (acquired)) Congenital or due to? With or without goiter Iodine-deficiency Post procedural Post infectious Hyperthyroidsim: (E05.20 Hyperthyroidism) -Due to - With (Goither, Storm) E89.0: Hypothyroidism (acquired), postsurgical 11

57 Hyperthyroidism Example 61-year-old male with hyperthyroidism with multinodular goiter? Osteoarthritis (OA) Divided into: specific locations (site), laterality, and types of OA Site represents either the bone, joint, or muscle involved Hyperthyroidism, with goiter, nodular (multinodular) E05.20 Thyrotoxicosis, with toxic multinodular goiter Multiple sites more than one bone, joint, or muscle is usually involved, such as osteoarthritis, Multiple codes used when no multiple site code is provided and more than one bone, joint, or muscle is involved to indicate the different sites involved 67 Osteoarthritis Codes Range The range of codes for osteoarthritis (OA) runs from M15 through M19 M15.0 Arthritis, arthritic (acute) (chronic) (nonpyogenic) (subacute) degenerative see Osteoarthritis Osteoarthritis, generalized, primary M Osteoarthritis, spine see Spondylosis Osteoarthritis - Example 67-year-old female presents for right knee pain, and the provider diagnoses osteoarthritis for which the patient is prescribed NSAIDS. Osteoarthritis, knee (M17.-) M17.11 (osteoarthritis, right knee) Headache R51 Headache Reportable 3-character code G43- G44: Migraine and other headache syndromes i.e.; G Headache, cluster, intractable (if physician does not state whether it is chronic or episodic) Document: Type, i.e.; tension headache vs. post traumatic headache Episodic, chronic or unspecified Intractable or not intractable Conditions that may cause or be associated with migraines should be reported additionally Headache ICD-10-CM - Example Patient presents with a long (chronic) history of headaches described to be of tension type headache without mention of being intractable or not intractable. How would this be coded in ICD-10-CM? Headache, tension, chronic, not intractable G (chronic tension type headache, NOS) 12

58 Sinusitis Acute sinusitis J01.- & acute streptococcal tonsillitis J03.0- differentiate between an acute unspecified condition and an acute recurrent condition If the patient has an acute recurring condition, documentation should specifically identify the condition as such If the condition is not documented as an acute recurrent, the default code for acute unspecified is reported Sinusitis J01.90 Acute sinusitis, unspecified Use additional code (B95-B97) to identify infectious agent More specific code choice selections available: J01.00 Acute maxillary sinusitis, unspecified J01.10 Acute frontal sinusitis, unspecified J01.20 Acute ethmoidal sinusitis, unspecified J01.30 Acute sphenoidal sinusitis, unspecified J01.40 Acute pansinusitis, unspecified J01.80 Other acute sinusitis Sinusitis - Example Asthma 42-year-old man presents with 3-day history of nasal congestion, swelling around the eyes, and low grade fever. The provider evaluates the patient and diagnoses acute sinusitis. There is no mention of the sinusitis being recurrent. Extrinsic Intrinsic ICD-9-CM: ICD-10-CM: Mild intermittent Mild persistent Sinusitis, acute J01.90 Chronic obstructive Asthma, Unspecified Moderate persistent Overweight and Obesity Axis: type Obesity due to excess calories Morbid (severe) Other obesity Drug-induced obesity Morbid (severe) obesity with alveolar hypoventilation Overweight Other obesity Obesity, unspecified Obesity - Example Select the appropriate ICD-10-CM codes for the following scenario: 29-year-old morbidly obese, pregnant woman is evaluated at 24 weeks gestation. Her underlying obesity is documented to be complicating the pregnancy. O (obesity complication pregnancy, 2 nd trimester) E66.01 (Morbid [severe] obesity due to excess calories) Z3A weeks gestation o f pregnancy 13

59 Mental Health: Phobias Why the number of ICD-10 codes has increased: Clinical specificity: Example: phobias Agoraphobia now includes without panic disorder Social phobias now generalized v. unspecified Specific phobias ICD-10 includes specific codes for: Arachnophobia, other animal phobias, fear of thunderstorms, fear of blood, injections/tranfusions, other medical care, claustrophobia, acrophobia, fear of bridges, fear of flying, androphobia, gynecophobia Mental Health: Substance Abuse Codes for alcohol/drug use are now classified as: Abuse Dependence Use (not specified as abuse or dependence) Numerous subtypes based upon manifestation; for example, alcohol dependence has 20 subtypes, including In remission Intoxication (uncomplicated, delirium, unspecified) Withdrawal (uncomplicated, delirium, perceptual disturbance, unspecified) Mood disorder Psychotic disorder (delusions, hallucinations, unspecified) Persisting amnestic disorder Persisting dementia Other disorder (anxiety, sexual dysfunction, sleep disorder, other) Mental Health: Depression Document: Episode single or recurrent Severity- mild, moderate, severe With or w/o psychotic features Remission status, partial or full Mental Health: Attention-Deficit Hyperactivity Disorder (ADHD) Terminology Change Types: Predominantly inattentive type Predominantly hyperactive type Combined type, other type, unspecified Mental Health- Example 39-year-old patient with longstanding history of depression is seen and evaluated by the mental health professional for a major depressive disorder described as recurrent in nature. The patient is documented to be in full remission. F33.42 (major depressive disorder, recurrent, in remission) Pregnancy, Childbirth, & Puerperium Obstetric cases require diagnosis codes from chapter 15 O00 O08, Pregnancy with abortive outcome O09, Supervision of high-risk pregnancy O10 O16, Edema, proteinuria, and hypertensive disorders in pregnancy, childbirth, and the puerperium O20 O29, Other maternal disorders predominantly related to pregnancy O30 O48, Maternal care related to the fetus and amniotic cavity and delivery problems O60 O77, Complications of labor and delivery O80, O82, Encounter for delivery O85 O92, Complications predominantly related to the puerperium O94 O9A, Other obstetric conditions, not elsewhere classified 14

60 Pregnancy Trimesters are defined as follows: 1 st trimester less than 14 weeks 0 days 2 nd trimester - 14 weeks 0 days to 28 weeks 0 days 3 rd trimester - 28 weeks 0 days until delivery An additional code from category Z3A is to be reported to specify # weeks gestation Supervision of normal pregnancy (Z34.-) Category O60-O77 for complications of labor/delivery Many codes need 7 th character to demonstrate fetus Multiple Gestations Similar to ICD-9-CM, multiple gestations are classified in ICD-10-CM: O30.0, Twin pregnancy O30.1, Triplet pregnancy O30.2, Quadruplet pregnancy O30.8, Other multiple gestation O30.9, Multiple gestation, unspecified Z-Codes Relative to Pregnancy Z32, Encounter for pregnancy test & childbirth & childcare instruction Z33, Pregnant state Z34, Encounter for supervision of normal pregnancy Z36, Encounter for antenatal screening of mother Z37, Outcome of delivery Z39, Encounter for maternal postpartum care & examination Obstetrical Example: New onset seizure in patient with 26 week gestation. O Other specified pregnancy related conditions, second trimester R56.9 Unspecified convulsions Z3A weeks gestation of pregnancy Pregnancy in a patient with known seizure disorder O Diseases of the nervous system complicating pregnancy, second trimester G Other generalized epilepsy and epileptic syndromes, not intractable, without status Signs, Symptoms & Uncertain Conditions Chest Pain Pain on breathing (R07.1) Precordial (R07.2) Other (R07.8-) Pleurodynia Intercostal Other Unspecified Underlying Cause GERD Acute MI Anxiety, etc. Heartbeat abnormalities (R00.-) Tachycardia, unspecified Bradycardia, unspecified Palpitations Other Unspecified 15

61 Cardiac murmurs and other cardiac sounds (R01.-) Benign and innocent murmur Unspecified murmur Other sounds Abnormal results of cardiovascular function studies (R94.3-) Unspecified study EKG/ECG Other study Syncope (R55) Edema (R60.-) Localized Generalized Unspecified Dyspnea (R06.0-) Unspecified Orthopnea Shortness of Breath Other Abdominal Pain Acute Abdomen Upper abdomen pain Unspecified, RUQ, LUQ, Epigastric Pelvic and perineal Lower abdomen pain Unspecified, RLQ, LLQ, Periumbilical Other Tenderness Location Rebound tenderness Location Colic Generalized Unspecified Pain with micturition (R30.-) Dysuria Vesical tenesmus Unspecified Hematuria (R31.-) Gross Benign essential microscopic Other Unspecified Unspecified Urinary Symptoms Retention (R33.-) Drug induced Other Unspecified Polyuria (R35.-) Frequency Nocturia Other Other Symptoms (R39.-) Extravasation of urine Other difficulty with micturition Hesitency Poor stream Splitting of stream Feeling of incomplete bladder emptying Urgency Straining Other Extrarenal uremia Other Functional incontinence Other Unspecified Fever (R50.-) Drug induced Other Unspecified Pain, unspecified (R52) Malaise and fatigue (R53.-) Neoplastic related Weakness Functional quadriplegia Other malaise and fatigue Other malaise Chronic fatigue Other fatigue 16

62 Well visits General adult medical exam (Z00.0-) Routine child health exam (Z00.12-) Newborn health exam (Z00.11-) Under 8 days old 8 to 28 days old Specify with or without abnormal findings Well visits Other health exams Rapid growth in childhood (Z00.2) Adolescent development state (Z00.3) Delayed growth in childhood (Z00.7-) With or without abnormal findings Other general exam (Z00.8) Wide range of screening exams with specific Z codes to report the service Vaccines Flu vaccine Pneumonia vaccine DTap vaccine Varicella vaccine Etc. Z23 Making the Transition Tips for Making the Documentation Transition Move away from unspecified codes Increased risk of denials Delay of payment Impact on medical necessity Don t look at recent CMS action as a delay. It s not! Focus on your top 25 diagnoses Create pick problem lists Update clinical templates Update practice forms: Superbills, encounter forms Referral forms Order forms (e.g., labs, RX authorization) Perform documentation assessments Use Available Education Tools & Resources Reach out to your Specialty Societies; many have additional resources available Reach out to Hospital s ICD-10 Facility Physician Champion & Clinical Documentation Specialist(s) Medicare Administrative Contractor (MAC):Novitas NAMAS (National Alliance Medical Auditing Specialist) Can help with ICD-10-CM Prep Audits Crosswalks AAPC (American Academy of Professional Coders) 17

63 CMS: ICD 10 Information & Resources ICD-10-CM/PCS information: Provider-Resources.html Coding for ICD-10-CM: More of the Basics video: Teleconferences-Items/ ICD-10-Basics.html General Equivalence Mappings: GEMs.html CMS Medicare FFS Provider e News ICD-10 National Coverage Determinations Use this Link To sign up for CMS e-news: 18