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Hi everyone, this is Michael Miscoe with Miscoe Health Law, and today we’re going to do part two of our three part series on debunking the Medicare billing myth. The more time you spend with your hands on patients than hands on your computer the better off you’re going to be and probably the happier you’re going to be.
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That’s the impetus behind, or part of the impetus behind why providers are looking for ways to treat Medicare patients where they don’t have an obligation to bill. And the easiest one is just don’t do manipulation. Do techniques that Cause mobilization or manual traction, lymphatic drainage, things like that manual therapy techniques that would never be covered by Medicare and because they’re never covered and medical necessity is not the reason for non coverage.
You don’t need an and we’ll talk about a little bit more in a minute. Now, the 2nd component driving providers into this Medicare cash model is risk. As I mentioned I’ve been involved in a truckload of Medicare post payment audits, and it is tough sledding. But the risk doesn’t end with just the audit.
Okay the the most recent it’s been a couple of years now changes to the false claims act. And they’re like, what are you bringing fraud into the equation for? I’ll tell you why. So you get a, probe audit maybe a TPE audit and, there is a significant error rate, which I would say is probably more than 15 or 20%.
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And in my experience, the error rate seemingly is always 100%. So rare that you see Medicare contractors ever approving any care. That I can’t even remember the last time that happened Medicare’s preparing, I believe, to go through another audit swing with chiropractors because when the starts dropping cert audits.
Comprehensive error rate testing audits, then that leads to the production of a report on the. Aggregate billing error for chiropractic services. And then that report is what prompts the and the to start doing data analysis to identify outliers and decide who they’re going to pick on. Okay, so with that in mind, there’s another audit swing coming.
The last 1 we went through was probably about 3, 4 years ago. So it’s definitely time. And these things do run in cycles. So getting back to the risk aspect of it. So let’s say you get this audit, they deny, they look at 40 services and your overpayment is 1, 268. And you’re like, it’s right to check and move on, right?
No. Because under the voluntary, it’s called the Reverse False Claims Provision of the False Claims Act. Once you’re put on notice that you have an error, that triggers an obligation to conduct an investigation. Identify similar air quote error in your billings and the look back period is 6 years.
When we appeal a 1200 dollar audit, it’s not about the 1200 dollars. Really, it’s about. The maybe several hundred thousand dollars that we would be obligated to disclose and refund under that rule. And if you decide just, hey, I’m just going to pay the twelve hundred dollars and we’re not going to go turning over any rocks to find any other air.
Understand that under that rule, if you fail to do that, all of the claims that you should have disclosed and refund. Which, if their error rate is 100%, it’s probably all of them. They become false claims by operation of law, not because they were false when you submitted them or fraudulent when you submitted them, but they became fraudulent because you did not, you knowingly avoided your obligation to investigate, identify, disclose, and refund.
So that is why Medicare is a very Dicey proposition for the little bit of a reimbursement that you get. And that is also what is driving providers to look for solutions allow them to treat medicare patients, but without having to submit claims. All right, so When you look at the medicare guidance And you’re having this manipulation versus non manipulation conundrum understand that Medicare helps you out.
They publish what are called absolute and relative contraindications to manipulation in the benefit policy manual at section 240. 1. 3b. So in there, there is a list of very common conditions, some not so common, where manipulation either isn’t a good idea, But Medicare will pay for it anyway if you specifically document how you’re mitigating the risk or conditions for which manipulation is absolutely contraindicated, meaning.
You shouldn’t do manipulation at all. And if you do, Medicare is not obligated to pay for it. Okay. And I would think also from a malpractice perspective, if provide manipulation where patient has a absolute contraindicating condition, and it turns out bad. I don’t think there’s much of a defense in that scenario because those are in fact very well published and have existed for a long time.
Now, let’s talk about medical necessity. So let’s say, for example, and I never try to tell doctors how to treat their patients. If you do manipulation. You do manipulation. That’s how you treat your patients. That’s what works for you. Totally fine with it if you Don’t or considering not that’s your call as well.
Okay, so when you don’t do manipulation You have no statutory obligation to bill. The only thing I recommend in that scenario is An alternate form of advance notice through what we call billing waiver form. And then also completing a notice of exclusion of Medicare benefits form, which is a form that Medicare maintained on its forms database for many years.
They don’t anymore. It was never a required form, but it’s 1 of those really good idea forms. That puts a patient on notice that they’re getting something that isn’t covered specifically, in addition to exam x rays, other diagnostic tests, therapeutic modalities procedures, specifically manual therapy, which may include non manipulative adjusting techniques.
And then, of course, DME stuff as well. We put the patient on notice that those things are never covered. If they ever call and say, Hey, I don’t understand why my doctor’s not, billing Medicare. My, my friend, Gladys, that I know at the senior center, goes to the chiropractor and her stuff gets paid.
You’ll get a letter from Medicare, but once they understand that you’re not performing. Manual manipulation of the spine. They’re like, okay, done. Now, let’s say you are and if that’s, how you treat your patients super duper understand that medical necessity doesn’t mean what you think it means.
As a physician, you think about medical necessity in terms of connecting the dots between complaint, exam findings, treatment, and a hopefully good outcome, and in which case I call that care that’s clinically appropriate. Okay, but to be medically necessary, Medicare and most commercial payers require a heck of a lot more.
Now, in the initial visit documentation content requirements I mentioned at 240. 1. 2. 2a they have treatment planning requirements and interestingly they say a treatment plan should include. Okay, which means it doesn’t have to, but it should. Medicare thinks it means must. Okay, so they turn a should into a must.
And then there’s three components, frequency, duration, specific goals. And objective measures to evaluate treatment effectiveness, which is reexam. Okay. Now they have turned the 2nd and the 3rd, the specific goals in the objective measurements into a new requirement that nobody can really meet. I can show you how to do it, but it’s very time consuming.
They want to see objective measures to evaluate treatment effectiveness and objective measurable goals is what they call it. And nobody does that and it’s very difficult to do because a lot of the things and conditions that you evaluate, whether it’s a joint dysfunction, neuritis, radiculitis, they don’t have standardized grading scales as to severity.
And therefore, it makes it very difficult to establish objective measurable goals unless the patient’s problem is limited to range of motion. Okay, so for that reason, they’re setting up a standard that you can’t meet as a basis to deny care. Now, underlying all this documentation content stuff. Let’s say you did fill in all the blanks somehow.
Okay, and you had headers in your documentation that track exactly with their requirements and you filled something in everyone. Then we get into. The 240. 1. 3 actual medical necessity requirements, which require 3 things, demonstration of subluxation by part or x ray an associated neuromusculoskeletal condition that’s causing the functional deficit and the symptoms and an expectation that your care, which has to be the most cost effective in the least costly setting is expect to improve the patient’s condition And capacity to function in a reasonable, predictable period of time.
Now, underlying all that there, they introduced the word significant patient has to have a significant health problem, significant functional deficit. So you’re, patient doing some aggressive feather dusting over the weekend, or they move the chair, or they slept funny on the couch. That’s just not.
Perceived as causing a significant health problem and more often than not your treatment plan. The patient is going to come one or two times and they’re gone. That’s the end of part two and next time we’ll finish up with our tutorial on Medicare billing requirements and try to tie it all together for you.
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