In the past, articles that began with a headline about “Defensive Medicine” were usually written by attorneys who were concerned about medical malpractice and provided advice on how to avoid or successfully defend lawsuits, obviously an important topic. But, we are entering into a brave new world where proper charting and defensive documentation has other ramifications. More and more, payers, private and public, have taken to retrospective chart review in areas where billings and payments may have long since been settled. Their intent of course is to find disputed issues in order to demand repayment even well after the date service was provided. Recently, California urologists have tasted this in the form of multiple letters demanding records and then repayment from our state’s Medicare Recovery Audit Contractor (RAC), PRG Schultz. For those of you who are not yet aware of this program, Congress established a 3 state (Florida, New York and California), 3 year demonstration project as part of the Medicare Modernization Act of 2003. This program essentially created a bounty hunter system where all part A and part B Medicare financial records for the previous 4 years were given to private companies who were free to mine the information for errors, overpayments and fraud in any way they desired. Since they are paid on a contingency basis somewhere between 20-30% of every dollar they identified and collected, they have plenty of incentive to be creative and aggressive in their efforts. Sometime after the program was started, in response to complaints from the AMA, they were also given some incentive to identify underpayments as well but since these take more effort and overhead, data so far indicates that few have been found (no big surprise there).
Because the contractors in the different states were free to be creative in their investigations, so far it has only been California’s auditor who has gone after urologists. Beginning last fall, physicians here began to receive rather Kafka-esque letters that vaguely suggested that there was some irregularity identified in previous bills for which records were requested. Even though the letter suggested that the auditor had reason to suspect a problem, in fact, the requests were computer generated without any indication that there really was a problem. The records requests are more like a fishing expedition looking for irregularities. Unfortunately, since the exact nature of the problem was never specified, it was unclear what records or how much detail was necessary to support the questioned claim. Too little data would be interpreted as lacking sufficient indication to warrant treatment; too much data might open other areas to investigation.
Adding insult to injury, many physicians began to receive so many multiple requests (some medical oncology groups in the state were receiving up to 50-100 requests at a time), they found themselves overwhelmed by an extraordinary demand on office personnel pushing up overhead costs. Needless to say, there is no reimbursement for the time spent researching and responding to these demands (nor for any time or cost involved in appealing letters demanding reimbursement). Failure to respond is no option since silence is deemed an automatic lack of supporting medical indication and recoupment demands result. Despite conversations with the state Medicare carrier, CMS senior executives responsible for this program in Washington and senior executives for the contractor itself, little improvement was seen in their Gestapo tactics.
Then, it really got interesting. Beginning in July 2007, urologists all over the state began to receive EOBs indicating that payments for Lupron provided to patients in 2002 and 2003 were being repriced based on the least costly alternative policy, followed by demand letters that gave very little time before payback was due. If the doctor failed to make payment or file an appeal, the letters threatened that the carrier would deduct the amount due from future Medicare payments with interest at 12.375%. I will summarize here for the sake of brevity all the efforts that were necessary to overturn these threats. However, after vigorous efforts by urology state leaders, we have been successful winning round one in what is sure to be an ongoing battle. For the moment, the carrier has mass adjusted all the claims for repayment for cases that were paid earlier than 4 years from the demand letters.
However, key to our defense against this investigation has been careful charting of treatment indications, care plans, injection or other therapy delivered, dosing, dates etc. In other words, practicing “defensive medicine” in this case meant documentation of every aspect of the patient’s care creating a paper trail that an auditor with no medical (and certainly no urologic) training could follow. The law regulating this program only requires that the auditors be nursing or pharmacy personnel. There is no one reviewing these charts capable of “reading between the lines” or who understands urology well enough to make the leap from diagnosis to treatment. Chart notes that successfully pass audit include information about patient diagnosis, treatment plan, which drug will be used, the frequency, dosage and route as well as the intended duration of therapy. It must include a statement that the doctor was in the office when the drug was administered (billing for Doctor A can only be made when Doctor A is in the office—if his partner Doctor B is in that day, the bill should be under the name of Doctor B according to Medicare regulations governing part B drugs. If nursing administers the injection without any doctor in the office, no charge can be generated). And of course, all notes must be signed by the treating physician. As far fetched as it seems, no matter how properly treatment was indicated, I have seen claims denied in retrospect because one or more elements of this limited supporting documentation was absent. It’s not fair, it’s not good medicine but it’s happening. We can talk about the proper legislative approach to correcting this situation another day (and we should), but for the moment, this is here and it’s happening. Just ask the California urologists who have received demands to repay tens of thousands of dollars for care that was delivered in good faith (but perhaps without complete documentation from the auditor’s viewpoint) 4 years ago and longer.
Unfortunately, we can’t go back to revise documentation from 4 years ago (and no one should ever try unless they want to compound their problems with allegations of fraud), but knowing the scrutiny medical records are now subject to, we must all rethink the level of charting and documentation that goes into office and hospital records.
Lest you think this problem is limited to California, the bad news is that Congress was so impressed by the report on the RAC program’s first 2 years, they have voted to make it permanent and extend it nationally. The next round of contracts will go live in March 2008 in Massachusetts, South Carolina and Arizona followed gradually over the next two years around the rest of the country. While the contractors will initially focus on part A Medicare, they will quickly begin to look at physician practices as well. Many of you have adapted electronic medical records for your offices, which should lead to robust charting, and documentation and therefore you may assume you are protected in this respect. However, you should know that future reviews may also look at hospital records, which are typically much more abbreviated. In fact, it’s not uncommon for a busy surgeon to restrict his hospital follow up notes to little more than a few words. However, the requirements and criteria that support hospital charges are no less demanding than those, which apply to office visits. Since no one would think of an abbreviated operative note that is nothing but a few words long (I hope), then why skimp on hospital visits that may be audited long after the fact. Since future programs will be limited to looking back no more than 3 years, you should already be in the habit of robust and thorough documentation of all medical records. Think of it as a prophylactic defensive move to protect your practice economically, if not legally.
Medicare is not the only payer now reviewing old payments looking for areas to recoup money. The larger private payers are interested in this program and have plans in place to undertake similar audits. Attorneys have admonished us for years to document honestly and thoroughly in case of legal action. It now is clear that we must be compulsive in our charting to not only support current claims but to shield against future audits that will attempt to recoup payment for any billings not adequately documented. You should be paid for everything you bill; you should bill for everything you do; and you should document everything you do. To paraphrase, the best offense is often a good defense.
