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Demonstrate that a service was provided, and the absence of documentation typically is not relevant.

I was recently contacted by a clinic that is in the midst of being the target of a False Claims Act investigation. The main allegation is that a physician billed too many 99214 (Level 4) office visits. The physician often billed those encounters at the same time that a subsequent annual wellness visit occurred, and the government has expressed skepticism that use of the 99214 was justified.

When I start a case like this, my first question is always “how many RVUs (relative value units) does the physician have?” If the physician’s productivity is unreasonably high, it calls into question whether the doctor really provided the services that were billed. By contrast, however, if the RVUs seem realistic, that is compelling evidence that the physician really did the work as billed.

This physician happens to be below the median for their specialty in each of the last five years. This provides an extraordinarily strong defense. Hopefully, you’ve heard me describe why the evaluation and management (E&M) documentation guidelines are not binding. For Medicare, as long as you’re able to demonstrate that a service was provided, absence of documentation typically is not relevant. Medicare only requires documentation for certain specific services, like anesthesia, and some teaching physician work. It’s certainly recommended that you document consistently with the guidelines, but it is not the requirement. 

The aforementioned clinic initially retained counsel recommended by their insurance company. In the nine months of the investigation, that lawyer had never asked a single question about the doctor’s RVUs, nor had he taken any steps to determine what work had been done. He was also unfamiliar with the difference between a qui tam case filed by a whistleblower and an investigation initiated by the government, and how that impacts both procedural and strategic issues. In essence, the insurance company had chosen unqualified counsel to defend the clinic.

This episode teaches a few fundamental lessons. First, in any Medicare audit, the first question is whether you really performed the service under review. If you did, you should defend your claim vigorously. Second, the counsel you choose really matters. Good counsel will often be able to offer great ideas without any significant research. It literally took us 10 minutes to frame the outline of a compelling defense. It seems likely that the counsel retained by the insurance company would not have made the argument that’s likely to carry the day.

Finally, framing your argument is often the key to winning a dispute. In this case the government sought to focus on coding scoresheets and analyze whether various elements of history, examination, and medical decision-making were present. While it appears that they were, that’s not the ground on which the clinic should fight the battle. The defense is much stronger if the dispute is presented as “did the doctor provide the service that was billed?” Early on in any audit or inquiry, it’s important to consider how the question should be framed, and to try to control that decision. That is an important strategic consideration, and it’s best done by a lawyer who both understands the big picture and recognizes the best way to explain it.

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