Making Sure This Good Deed Goes Unpunished
By: DAVID M. GLASER
Winter 2002
Chart reviews are a fundamental part of clinic operations. Unfortunately, the government has a history of using these reviews-intended to improve compliance-against physicians. Here are some tips to reduce the likelihood that compliance efforts will be used against you.
1. Use the attorney-client privilege. Before you begin any internal investigation, contact your legal counsel. Without legal counsel's involvement, the results of a review conducted by you or your staff are almost certainly "discoverable." By contrast, under the attorney-client privilege, there is a much stronger argument that the results of your investigation are protected.
Using the attorney-client privilege is not a guarantee that the work will not be discoverable, but the cost is so minimal that there is every reason to do it. After contacting your legal counsel about an investigation, he or she should send you a letter asking you to conduct an investigation. The results of the investigation should be shared with your lawyer, who should also review all written materials before they are distributed internally.
2. A few charts can tell you a lot. As a general rule, individuals tend to code and document consistently. Therefore, reviewing as few as five charts per physician typically provides a good sense of the accuracy of E&M documentation. Be sure to pull charts from the full range of services you provide. No review will guarantee that you will catch every problem, but even a small review will dramatically improve the odds of detecting major problems quickly.
3. It may be a felony if you discover a mistake and choose not to make a refund. Federal law says it is a felony to conceal or fail to disclose any event that affects a person's right to any benefit or payment under any of the Federal healthcare programs. In addition, state fraud statutes may apply when you discover that you have billed improperly. The decision to refund is very significant, so be certain you understand all of the legal and practical implications of the refund decision.
4. Understand the difference between overcoding and underdocumentation. Medicare and other payers routinely state "if it isn't written, it wasn't done." While this is sound risk management advice, it is not the law. When carriers audit a physician, they are supposed to examine the documentation and compare it to the E&M Documentation Guidelines. If the documentation satisfies the guidelines, the audit is concluded. If not, the physician has the right to present supplemental information to demonstrate that the services were billed appropriately.
From a practical perspective, it can be difficult to prove what services were provided when there are shortcomings in the documentation, and many payers incorrectly believe that they do not need to consider any information that is not recorded in the medical record. Even so, you may be able to demonstrate the code accurately reflects the service billed.
To do this, gather production data about the physician under review and compare it to other physicians in the group, the state, and the nation. Extenuating factors, such as the physician's schedule, patient load, and information from others who work closely with the physician should be considered in an effort to determine how accurately the documentation reflects the content of most exams. The goal is to determine whether the code reflects the level of service actually provided, which supports a compelling legal argument that no refund is necessary.
When documentation is lacking, determine whether the service was provided and not documented, or whether the service was truly upcoded. While underdocumentation creates legal problems that you may be able to resolve satisfactorily, overcoding is nearly impossible to defend.
5. Make certain staff/consultants feel comfortable with this approach. Many people in the medical industry are understandably concerned about insufficient documentation. Everyone involved in your review should understand that the absence of documentation, standing alone, should not prompt a conclusion that someone is guilty of fraud, and also that documentation is not the only benchmark of coding.
6. These are reviews. Don't call them audits. It is easy to refer to the reviews as "audits," but this is almost always inaccurate. The reviews do not have a statistically valid sample, and they are not designed to be scientific. In fact, chart selection is often skewed toward charts that are likely to be problematic. This is more than an issue of semantics: when an audit detects an overpayment, you may have a legal obligation to refund money.
7. Don't believe everything you hear or read. There is a great deal of inaccurate information provided to medical groups. Many payers have inexperienced help, and the rules are so confusing that often even the government cannot fully understand them. As a result, it is nearly certain that you will receive inaccurate or contradictory information at times. When you get advice, whether from Medicare, a consultant, or an attorney, ask for the supporting documentation.
Done correctly, chart reviews can reduce the risk of government investigation, and they can have the added bonus of reducing anxiety. By avoiding some of the common pitfalls, you can obtain the benefits of a chart review without increasing your exposure.