A student of my attending course emailed me showing that he now closes out his charts 46 minutes faster after taking my course.

If you like getting home 46 minutes earlier regardless of your EMR (inpatient or outpatient), check it out here!

Thanks to Sean Weiss The Compliance Guy for reviewing this newsletter

“Compliance” has a specific meaning in healthcare. Simply put, we must be compliant with certain laws and regulations in the business of delivering healthcare. There are entire departments and directors that oversee “compliance” and for good reason. Keeping up with it all seems almost impossible. Few physicians understand the term “compliance” in this sense and in the next few issues, I’m going to highlight a few regulations every physician should know.

The False Claims Act

The false claims act actually originated during the Civil War! People were selling guns to the Union Army that either didn’t work or weren’t what they claimed they were. So, the government made a law to make people pay if they lied about what they were selling the government.

It “prohibits knowingly submitting or causing another to submit a false claim to the government or knowingly making, using, or cause a false record or statement to get the government to pay a false claim.”

That’s black and white, right? You can’t claim you performed a surgical removal of someone’s gallbladder when you never did such a thing. Or you can’t bill Medicare for delivering a wheelchair to a patient that you didn’t actually provide.

Pretty simple.
Well…

Remember that when using DRGs, your documentation of a medical diagnosis is a claim of services assumed to have been provided for treating that diagnosis. So when you document “Acute Respiratory Failure with Hypoxia” but the patient was never hypoxic and never required oxygen, that may be considered a false claim.

Also, if you’re using copy/paste, smartphrases, or other EMR tools to artificially document and inflate your billing, that’s a false claim. Here it is straight from the horse’s mouth:

Think it’s an empty threat? Just ask Somerset Cardiology Group who had to pay $422,000 because they “cloned patient progress notes, as well as…used CPT codes to reflect a higher level of service than the cardiologists actually performed…”

Some people get hung up on the word “knowingly” thinking they can claim ignorance but “knowingly” in government talk means “deliberate ignorance of the truth or falsity of the claim” OR “reckless disregard of the truth or falsity of the claim.” While physicians by and large do not receive adequate education on these things, the government expects us to know about them. Lucky for you, as a subscriber to my newsletter and with access to my archive, you are ignorant of these issues.

Also, take note of the word “cause.” When approached by the government, some have blamed their billing service for the errors. But, as I’ve said in this newsletter time and time again, coders and billers are not allowed to assume. They will bill or code what you document and submit. The responsibility ultimately falls back on you.

“I Would Never Do Such a Thing”

Don’t think this doesn’t apply to you. You might be reading this on a weekend and think, “I would never submit a false claim” and then on Monday use pre-populated templates, smart phrases and copy/paste to falsely document things you never did or never reviewed and then submit a bill that you’re not 100% certain is supported in your note.

How do I know?

Because I audit charts for a living and see notes that don’t support the level of service billed. Then, when discussing the audit results with physicians, I have a hell of a time getting them to understand the billing guidelines and to convince them to take them seriously - especially when “this is how we’ve always done it” is the excuse I’m given (which, by the way, is an admission of fault and admission that whoever “we” is are all guilty).

I’ve also been told “well I did the work I just didn’t document it” and “I just feel that level was appropriate.” You have to prove to the government that you did the work and they have to be convinced of that proof. So, “just trust me” isn’t going to cut the mustard.

I also talk to physicians that have (at best) a surface-level understanding of E/M billing guidelines or aren’t even aware of the new 2021 / 2023 updates. Again, ignorance is not a defense.

It’s these experiences that led me to spending a year creating my video course for attendings - of which a big focus is making your E/M billing bulletproof to avoid exactly this. Even if AI starts doing your billing for you, you still need to know the buzzwords to use and still know the rules to self-audit the AI’s output.

Avoiding the Red Flag

How do you keep the government out of your business? In general, it’s avoiding being an outlier and having audits performed to keep you in line.

When you’re several standard deviations off from your peers, that raises eyebrows. But how do you know? If you’re an outpatient provider, I highly recommend having your office manager (or whoever has access to your data) run your CPT code utilization in the AAPC’s E/M Utilization Benchmarking Tool. It will compare your new and established visits to Medicare claims for physicians in the same specialty nationally. Look at these two fictional examples (Orange bar is national data. Blue bar is the provider):

Provider #1:

Provider #2:

Provider #1 is billing way more level 4’s and 5’s compared to national averages and therefore will be more likely to have the government come knocking. You don’t want that to be you.

Just Cause You Can, Doesn’t Mean You Should

Consider this. A hospitalist tells me he bills nothing but level 3’s (that’s the highest level for inpatient initial and subsequent visits). He promises me that he knows the E/M guidelines completely and his notes 100% support the level. So, he’s good right?

Nope.

With that billing, he’s going to be an outlier. Is his patient population so much different than the average hospitalist that would require that level of billing? Probably not. As CMS says:

(I included that 2nd sentence there to remind everyone that even CMS agrees longer notes ≠ higher billing, and shorter notes ≠ lower billing).

The key term in that quote is “medically necessary.” Even though I could bill a level 3 (by checking off the right MDM boxes) every day for a patient just waiting in the hospital for SNF placement, is it medically necessary? Maybe not.

Finally, if you’re independent, pay an auditor to audit your billing to ensure you’re not an outlier and give you feedback. If you’re in a health system, your health system probably pays for these audits for you and you probably get the results every so often. They’re not there to annoy you, they are there to protect you.

And no, being in a health system doesn’t absolve you or protect you from of all of this. I recently heard of a case where a health system was sued $900,000 for a provider’s lack of sufficient documentation to support his billing and once settled, the health system turned around and sued the doctor.

A Cut of the Pie

Many of the false claims acts cases are filed by whistleblowers. That’s called “qui tam” law-suits, meaning an employee identified an issue, perhaps reported it to their compliance office but nothing was done, so they filed the lawsuit. The whistleblower can actually get a percentage of the settlement money. I wouldn’t bank on that as a retirement plan, though…

I initially planned on writing this newsletter not only on the False Claims Act but also the Stark Law, the Anti-Kickback Statute, HIPAA and EMTALA but I decided to focus on the FCA alone. So, I’ll discuss the others in my next newsletters.

That’s all for now. Don’t hesitate to ask questions as they help inspire future issues!

Cheers,

Robert

Thanks to Laura Samson, RN BSN CCDS, and Sean Weiss for editing this newsletter!

When you’re ready, there are 3 ways I can help you:

1. Join our CDI and Coding Village online community! It’s impossible to know it all, it takes a village! What you’ll get:

• Learn from me and other experienced professionals (perfect for new coders / CDI’s and those pivoting their career)

• Participate in monthly interactive webinars hosted by me, and anatomy and physiology reviews not found anywhere else

• Share ideas & solutions to new problems with peers in real-time discussions

2. Check out The Practical Guide to Attending Documentation video course.

• Stop underbilling your hard work & MASTER the new billing rules

• Get 3.5 hours of CME credit! (Use your CME funds!)

• Stop feeling guilty about writing shorter notes

• Use notes to PREVENT getting sued

3. Check out The Resident Guide to Clinical Documentation video course. The course that helps you:

• Impress your attendings and improve your evaluations.

• Prepare for real-world productivity pressures

• Gain the confidence to write shorter yet more effective notes.

• Use notes to make you a better, more prepared physician

If you were forwarded this newsletter and would like to subscribe:

Sources:

• The Hospital Guide to Contemporary Utilization Review 3rd edition

• John Irwin

• https://www.aapc.com/tools/em_utilization.aspx

• https://www.cms.gov/files/document/r11842cp.pdf