Behavioral health coding compliance

Compliance Lessons from the OIG

In March 2022, the Office of Inspector General (OIG) released a report outlining errors one psychiatrist made in billing for behavioral health services and assessing $1.1 million in overpayments. When considering the average fee for behavioral health service, $1.1 million represents what the government believes to be an overpayment for many, many encounters during an 18-month period.

How did this behavioral health practice come to the attention of the OIG? In its report, the OIG says that the New York City psychiatrist was “among the highest reimbursed individual providers in the Nation.”  This psychiatrist came to the attention of the OIG because of the sheer volume of the claims that were submitted. The psychiatrist submitted claims for services personally performed and for services done by social workers and a registered nurse and billed incident to the psychiatrist. This article will review what the OIG said about the documentation that did not meet Medicare requirements for the services. It should be noted that the practice disagrees with the findings and the extrapolation and repayment amount. In the meantime, let’s learn what the OIG stated were deficiencies.

Practices need to understand incident to guidelines. This practice billed all of the services performed by social workers under the provider number of the psychiatrist, incident to the psychiatrist’s services. Four of the five social workers in the group were eligible to enroll in Medicare themselves and could have billed Medicare directly. The payment would have been less, at 75% of the fee schedule instead of 100%. But, in order to collect the higher payment, practices need to meet the incident to requirements. It is allowable to bill social work services under the psychiatrist provider number if the requirements are met.

• The psychiatrist must see the patient first and establish a plan of care
• The psychiatrist must stay involved in the care of the patient
• The psychiatrist must be in the suite of offices when the service is performed
• The social worker must be an expense to the psychiatrist

The OIG notes that 95 of the 100 encounters did not meet the incident to guidelines. The reviewer at the OIG could not verify, based on the documentation, that the psychiatrist was in the office when the service was performed. The reviewer notes that there weren’t logs to verify the psychiatrist was in the office.  The appointment scheduled could support this, but over a period of a year, there would be times that the psychiatrist was not in the office. Everyone takes a day off now and then or goes on vacation. When the psychiatrist was not in the office, the incident to requirements would not be met. Based on the OIG report, it would be prudent for a clinician to note that the physician who is billing the service is in the office when the service is provided or provide appointment schedules to support that.

The OIG found that 100 of the 100 treatment plans did not comply with Medicare requirements. They found that some of the treatment plans were not signed and the others did not describe the frequency and duration of the psychotherapy that was planned. Although the report does not say this, I infer that the social worker signed the treatment plan but not the psychiatrist. It’s hard to believe that the social worker would not sign the treatment plan that they had developed. But since the services were billed under the psychiatrist’s provider number incident to, I suspect that the OIG wanted the psychiatrist to sign the treatment plan.

One of the social workers was not licensed or authorized to provide services in the state in which the practice was located.

For 26 services, the time spent in psychotherapy was not documented in the medical record. Any service that is selected based on time must have the time spent documented in the record. It is insufficient to simply select the code in the electronic health record that has the description of the time noted. The actual time spent in the provision of services must be documented.  Either document total time spent in the face-to-face service or start and stop times for psychotherapy.

The OIG also reviewed services in which both medication management – – an office visit – – and psychotherapy were reported at the same encounter. When a psychiatrist, psychiatric nurse practitioner, or psychiatric physician assistant provide medication management and psychotherapy on the same day, the psychotherapy must be documented in sufficient detail to support the service. The OIG said the documentation did not show both services. The OIG stated there should be a separate note for the psychotherapy. A separate note is not a CPT^® rule nor is it directly stated by Medicare. My recommendation has always been that after the medication management is described in the note that the practitioner start a separate section of the note headed “psychotherapy.” The practitioner must base the level of E/M service on medical decision making and may not include any of that time spent in the E/M service in the time of the psychotherapy. The detail in the psychotherapy note should be of the same quantity and quality as in a standalone psychotherapy service.  Include only the time of the psychotherapy, and select the psychotherapy code based on time.

• Avoid all psychotherapy of the same duration. “At least 16 minutes were spent in….”
• Describe the psychotherapy in detail.
• Periodically, review the goals from the treatment plan and progress towards meeting those goals.
• Be realistic: if the visit duration is 20 minutes, could psychotherapy be 16 minutes and medication management 4 minutes? Could that happen repeatedly?

If you perform or bill for behavioral health services, read the report carefully. Take this opportunity to do a self-review of the documentation and coding. If you identify gaps based on the OIG report, now is the time to address them.

CodingIntel members, download the Behavioral Health Coding Guide for additional information.

You can download the OIG report here.