Most practices aren’t looking to pay the government any money in fines and repayment because of coding errors. Two recent OIG settlements described two practices that did just that. Most practices want to avoid this, of course, but some groups seem determined to achieve that outcome.
In reviewing both of the settlements, there are some patterns that emerge. And specific activities that can be avoided. The two groups in question were not similar, although some of the mistakes were the same. One was a large orthopedics practice and the other a hospitalist group.
Your practice can learn from these coding compliance mistakes and avoid payback, fines, and penalties. But, if you’re determined to pay the government $4 million, here’s how you can do it.
Sure fire method # 1 – Ignore Medical Necessity
In these cases, the government didn’t find medical necessity for all services. The orthopedics group used ultrasound guidance for joint injections without documenting the medical necessity for the ultrasound guidance. The hospitalist group came under fire for two reasons.
- For billing almost all high-level E/M services, when there was no medical necessity for the high-level services.
- For providing concurrent critical care. Billing high-level services is discussed later on in this article, in sure fire method #4.
At the hospital where the hospitalists worked, the ICU was managed by an intensivist service. However, the hospitalists routinely provided concurrent care to ICU patients.
Medicare states that if two physicians are providing critical care or other E/M services on the same day, it must be medically necessary and must not be duplicative. In the complaint against the hospitalists, the government alleged the group billed for this concurrent care “without regard to whether it was medically necessary.”
You can read what CMS says about critical care in the claims processing manual, here.
CodingIntel members can read a series of articles about critical care here.
Physicians of different specialties may provide either:
- E/M services or,
- critical care on the same day when the patient’s condition requires it
Often, the physicians are treating different conditions. But whether the physicians are treating different conditions or the same condition, the services may not be duplicative and must show that the services of both physicians were required.
In the complaint against the hospitalists, the government contended that intensivists were managing the patients’ care and the record did not show the medical necessity for the concurrent care.
Sure fire method #2 – Scheduling outside the global period
According to the government, the orthopedic group routinely scheduled patients for post op visits just after the end of the global period, and billed the patient for the service.
If the purpose of the visit is post-op, the fact that the visit occurs on day 12 after a minor procedure or day 92 after a major procedure does not make it a billable service.
CMS assigns surgical procedures a 0, 10 or 90 day global period. Certain pre-operative, intraoperative and post-operative care is included in the payment for the procedure, and may not be billed separately.
CMS and CPT® have a slightly different definition of what is included in the payment for post-op services:
CMS says all medical and surgical complications are part of the global payment, unless a return trip to the OR is required.
CPT® states post-op care includes “typical” payment. The global surgical billing guide gives more detail.
Sure fire method #3 – Misusing modifiers
Using certain modifiers bypasses the claims editing systems and results in payment.
Modifiers 25 and 59 are two modifiers that result in payment. When either an E/M service and a procedure or two procedures are done on the same day, one of these modifiers tells the payer it was a separate and distinct service.
Appending these modifiers when the encounter it is not warranted and the documentation doesn’t support it, is significant and serious compliance error.
Part of the $4.48 million the Orthopedic group paid back to the government related to billing an E/M service with a minor procedure, when no E/M service was documented or supported by medical necessity.
In Orthopedics and in primary care, billing for joint injections and E/M services is not always warranted. For planned procedures, bill only for the procedure.
Read more about modifiers in our modifier billing guide, and these articles on modifier 25.
Sure fire method #4 – Encouraging and rewarding billing high-level visits
According to the complaint in the hospitalist case, physicians were allegedly told to bill their E/M services in each category at the highest possible code. This resulted in more revenue for the practice and increased wages for the individual physician.
Many physician compensation contracts include RVU benchmarks and bonuses based on production. If that is the case, it is imperative to have an internal or external auditing process in place.
All medical practices should have an education process in place for new physicians, NPs and PAs. Before seeing their first patient, there should be an introduction to the compliance policy and coding education that relates to the services that the new provider is doing.
This will almost certainly include the category of E/M service and selecting and documenting the right level of service. Depending on the specialty of the provider, it may also include coding for procedures, the global surgical package and, of course, diagnosis coding.
An audit process is important. The auditing can be internal or external, should be timely for new providers and include feedback.
For more informtion, see my book, Auditing Physician Services (3rd edition)
Sure fire method #5 – Ignore E/M frequency reports
CMS and private payers regularly compare the frequency of billed codes for each category and subcategory of E/M services. Every medical practice should do this as well and identify frequency patterns that are significantly different than the norm.
When a provider’s profile is different:
- all codes in category at one level, or
- codes all billed at a higher or lower level,
the practice should look and see why. A primary care provider who bills an unusual percentage of 99212 may be under billing or may be incorrectly reporting an E/M service with each procedure. Reviewing the profile is the first step, and looking at documentation is the second step.
In the hospitalist group the percentage of services billed with the highest level in all categories were significantly higher than the norm. Of course, in this group the government alleged that it was purposeful to bill at high levels to collect revenue to which the group was not entitled. But intentional or unintentional, an unusual profile must be investigated
Sure fire method #6 – Use someone else’s provider number on the claim form
Both the orthopedic group and the hospitalist group committed this error. The complaint against the hospital states that:
“It is a basic and bright-line rule that a physician’s UPIN Number can only be used to bill for procedures done by that individual physician. It cannot be loaned to other doctors, even if it is expected that the other doctors will be approved by CMS and will be receiving their own UPIN numbers in the future.”
Medicare does allow locum tenens billing but the rules about this are specific and time-limited. Locum tenens billing does not mean using the provider number of a physician who is in the practice to report services for a new physician was not yet credentialed or enrolled.
Take the guidance to heart: don’t “loan” an enrolled physician’s UPIN to another provider.
The orthopedic group didn’t follow incident to rules and bill for services provided by their non-physician practitioner under the physicians provider number. This results in an overpayment to the practice, because physician services are paid at 100% of the physician fee schedule well services provided by non-physician practitioner repeated 85% of the physician fee schedule.
Read more about using the correct NPI number at the end of this post.
For more on incident to billing, see these posts:
- Incident to services – Medicare
- Medicare rules for incident to and shared services
- Shared visits – Medicare
Sure fire method #7 – Don’t listen to people who raise concerns!
When you read what whistleblowers say, there is almost always a statement that the employee or physician who made the complaint first tried to tell management that it was wrong.
A teaching hospital in New England paid by a sizable sum for incorrect anesthesia billing. A newly hired anesthesiologist arrived, noticed that the group wasn’t using the correct modifiers and brought it to the attention of the department. The department ignored him. The newspaper reports quote him as saying he repeatedly told them it was wrong, and was resulting in payments the group was not entitled to. Millions of dollars in payment later…
In the hospitalist complaint, the whistleblower alleges that days after he was hired he became aware of illegal practices and immediately brought it to the attention of the senior management and board. He claims not only was he ignored but that he was verbally abused when he tried to correct the errors.
Of course, not every complaint or concern that it is brought to the attention of management is accurate. That is all the more reason to have an investigative process in place to evaluate compliance concerns. Don’t ignore the person who brought the complaint, don’t immediately limit their access to the computer system, and of course don’t fire them. Do call your healthcare attorney if you feel there are serious problems.
The Physician who Never Sleeps – Using the correct NPI
Years ago, I worked with an Orthopedist who needed hours less sleep than I or the average person needed. While it would be incorrect to say he never slept, he woke up early, did his administrative tasks before his wife and kids were awake and arrived for work on time and ready to go. But, he’s not the subject of this article.
No, my concern is the doctor whose claims look like she never sleeps, who reports such a high volume of services in a 24 period, day in and day out, week in and week out, that a payer might wonder if the doctor ever sleeps or rather, if other professionals are performing services that are being reported under her National Provider Identification (NPI).
Medicare and private payers have rules about reporting services performed by someone else (Physician Assistant, Nurse Practitioner, other clinical staff members) under the NPI of the physician. The Office of Inspector General has telegrammed their interest in this topic by putting enrollment and assignment, incident to billing and high cumulative Part B payments on the 2013 Work Plan. In 2009, CMS dramatically decreased the period of time that a group could bill retroactively after enrolling a physician from 27 months to 30 days.
This is a risk area that every practice can and should review. It is simple and cheap. Verify that the correct NPI is on a claim form. In general:
- Use the NPI of the physician who performed the service. Do not use another physician’s NPI ever for Medicare or without written permission for a commercial payer. This means, if a physician is not enrolled in Medicare, the medical practice may not submit a claim for the services.
- If billing Medicare for services provided by staff members under the physician’s NPI, be sure that the requirements for incident to are met.
- If reporting services provided by a non-physician practitioner to Medicare under the physician’s NPI, be sure the requirements for either incident to or shared services are met.
- Medicare allows billing for locum tenens physicians (not non-physician practitioners) when the regular physician is absent due to vacation, illness or has left the practice. A locum physician may only report services for 60 days (counting the first day as day 1, and including days off in the 60 day count) when the physician being replaced is not available.
- If providing services jointly with a resident, be sure that the attending sees and examines the patient and documents her participation in the care.
All of the rules I’ve outlined above are for Medicare, but many private payers have similar rules. Not all private payers enroll non-physician practitioners, however, and in that case, report the service under the physician’s NPI.