Three risks, in particular, are expected to pose a greater liability for providers.

As we get ready to say goodbye to another year of audits and investigations, compliance officers around the country have worked or are working to determine their audit elements for calendar year 2020, in response to the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) 2020 Work Plan and the Centers for Medicare & Medicaid Services’ (CMS’s) audit initiatives for Medicare Administrative Contractors (MACs). The coming year promises to be another aggressive one, given the increase in Targeted Probe-and-Educate (TPE) audits, Unified Program Integrity Contractor (UPIC) audits, and desk audits initiated by the OIG. The biggest question is this: what should the focus be on to identify and mitigate risk in 2020?

While there’s literally a dozen that could be listed; these are my top three:

  1. Evaluation and Management (E&M) Services – Establishing “medical necessity” and “clinical justification” to support levels of service selected and billed remains critical. While most of the focus for internal and external auditors has been on Level IV services, inpatient hospital (admission and subsequent care) services continue to remain an undervalued target for recoupment by providers and hospitals, which makes them vulnerable to attack.
    1. Clustering levels of service or overutilization of a specific level of service drives auditors to easily detect patterns. If providers fail to establish the medical necessity of the service (which is defined according to the Medicare glossary as “healthcare services or supplies needed to diagnose or treat an illness, injury, condition, disease, or its symptoms and that meet accepted standards of medicine”), it can be an issue. A pretty broad definition, right? Based on that, denials for services failing to establish medical necessity should be rare. However, if you look deeper into Chapter 12 of the Medicare Claims Processing Manual (and specifically, 30.6.1 – Selection of Level of Evaluation and Management Service (Rev. 3315, Issued: 08-06-15, Effective: 01-01-16, Implementation: 01-04-16), “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.”

In conclusion, ensuring that each date of service is specifically supported by the documentation is critical to ensure that money received is retained.

  1. Cloning and Clinical Plagiarism – The continued ease of copy-and-paste or carry-forward functions increases the likelihood of a provider skating the system and utilizing methods auditors consider lacking, which impacts the ability to establish “medical necessity,” thus making these encounters prime targets for overpayment assessment.
    1. Let’s take a look at a few examples:
      1. According to CMS, the word “cloning” refers to documentation that is worded exactly like previous entries. This may also be referred to as “cut-and-paste,” “copy-and-paste,” or “carried forward.” Cloned documentation may be handwritten but generally occurs when using a preprinted template.

While these methods of documenting are acceptable, it would not be expected that the same patient had the same exact problem and symptoms, and required the exact same treatment (or that the same patient had the same problem/situation on every encounter). Authorship and documentation in an electronic health record (EHR) must be authentic.

Cloned documentation does not meet medical necessity requirements for coverage of services. Identification of this type of documentation will lead to denial of services for lack of medical necessity, and recoupment of all overpayments made.

  1. Over-documentation is the practice of inserting false or irrelevant documentation to create the appearance of support for billing higher-level services. Some PI Programs technologies auto-populate fields when using templates built into the system. Other systems generate extensive documentation on the basis of a single click of a checkbox, which, if not appropriately edited by the provider, may be inaccurate.

First Coast Service Options: “Documentation is considered cloned when each entry in the medical record for a patient is worded exactly alike, or similar to the previous entries. Cloning also occurs when medical documentation is exactly the same from patient to patient. It would not be expected that every patient had the exact same problem, symptoms, and required the exact same treatment.

Cloned documentation does not meet medical necessity requirements for coverage of services rendered due to the lack of specific, individual information. All documentation in the medical record must be specific to the patient and her/his situation at the time of the encounter. Cloning of documentation is considered a misrepresentation of the medical necessity requirement for coverage of services. Identification of this type of documentation will lead to denial of services for lack of medical necessity and recoupment of all overpayments made.”

  1. Incident-To and Split/Shared Services – Without a doubt, incident-to continues to be an area of extreme risk to providers and hospitals, given the complexity of and vagueness within published guidelines. Questions surrounding what constitutes a “new problem” or “direct supervision” and how “immediately available” is defined makes the risk/reward disproportionate, in this regulatory officer’s opinion.

CMS Terminology, Defined
Immediately Available: CMS has clarified that “immediately available” means “without delay,” so CMS considers “immediately available” to mean the supervising physician is in the office suite or patient’s home, readily available without delay to assist and take over the care as necessary.

Office Suite: An “office suite” is limited to the dedicated area, or suite, designated by records of ownership, rent or other agreement with the owner, in which the supervising physician or practitioner maintains his/her practice or provides his/her services as part of a multi-specialty clinic.

The services of the employee are covered when:

  1. The services are rendered under the direct supervision of the physician, CP, NP, CNM, CNS, or in the case of a physician-directed clinic, the physician assistant (PA).
  2. The services are furnished as an integral, although incidental, part of the physician’s, CP’s, NP’s, CNM’s, or CNS’s professional services in the course of the diagnosis or treatment of an injury or illness.
  3. Billing “incident to” the physician, the physician must initiate treatment and see the patient at a frequency that reflects his/her active involvement in the patient’s case. This includes both new patients and established patients being seen for new problems. The claims are then billed under the physician’s NPI.
  4. Billing “incident to” the CP, NP, CNM, CNS, or PA, the non-physician practitioner may initiate treatment and see the patient at a frequency that reflects his/her active involvement in the patient’s case. The claims are then billed under the non-physician practitioner’s NPI.

Direct Supervision
Direct supervision in an office setting does not mean that the physician, CP, NP, CNM, CNS, or in the case of the physician-directed clinic, the PA (hereafter referred to collectively as the physician/non-physician practitioner) be physically present in the same room as his/her/clinic employee. However, they must be present in the office suite and be immediately available to provide assistance and direction throughout the time the employee is performing the services.

  • In your office, qualifying “incident-to” services must be provided by a caregiver qualified to provide the service, whom you directly supervise, and who represents a direct financial expense to you (such as a W-2 or leased employee, or an independent contractor).
  • You do not have to be physically present in the treatment room while the service is being provided, but you must be present in the immediate office suite to render assistance if needed.
  • If you are a solo practitioner, you must directly supervise the care.
  • If you are in a group, any physician member of the group may be present in the office to supervise.
  • For inpatient or outpatient hospital services and services for residents in a Part A covered stay in a skilled nursing facility (SNF), the unbundling provision (1862)(a)(14) provides that payment for all services are made to the hospital or SNF by a Medicare intermediary (except for certain professional services personally performed by physicians and other allied health professionals).
  • Incident-to services are not separately billable to the carrier or payable under the physician fee schedule.
  • In institutions including SNFs, your office must be confined to a separately identifiable part of the facility, and cannot be construed to extend throughout the entire facility.
  • Your staff may provide services incident to your service in the office to outpatients, to patients who are not in a Medicare-covered stay or in a Medicare-certified part of an SNF.
  • If your employee (or contractor) provides services outside of your “office” area, these services would not qualify as “incident to” unless you are physically present where the service is being provided.
  • One exception is that certain chemotherapy “incident to” services are excluded from the bundled SNF payments and maybe separately billable to the carrier.

Physician-Directed Clinics
In clinics, particularly those that are departmentalized, direct personal physician/non-physician practitioner supervision may be the responsibility of several physicians/non-physician practitioners, as opposed to an individual attending physician/non-physician practitioner. In this situation, medical management of all services provided in the clinic is assured. The physician/non-physician practitioner ordering a particular service need not be the physician/non-physician practitioner who is supervising the service. Therefore, services performed by the therapist and other aides are covered even though they are performed in another department of the clinic. The service would be billed under the NPI of the supervising physician/non-physician practitioner.

While we are just scratching the surface on issues that create risk for medical practices and hospitals, paying close attention to the three biggest issues I’ve identified above should provide a good jumping-off point for compliance monitoring and risk mitigation.

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