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Hey everyone, this is Michael Miscoe with Miscoe Health Law with this week’s installment of ChiroSecure’s growth without risk presentation. And today we’re going to talk about Medicare billing obligations and the issue of medical necessity. And A lot of myths about this subject, so hopefully we’re going to put this to bed.
I’ve done this presentation before, so if you’ve heard it before, I apologize. It won’t hurt you to hear it again. If you haven’t heard it sharpen your pencil and let’s get started. One of the most common myths that exists in the issue with Medicare, and we’re talking about Part B now, Original Medicare, not the Medicare Advantage plans, but most people believe somewhat incorrectly, mostly incorrectly, that if you see a Medicare Part B patient, you’re obligated to submit a claim on their behalf to Medicare.
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And that is only potentially true. There’s a lot of caveats to that once you read the statute. In the Medicare statute at 42 U. S. C. section 1395 W 4, subsection G, subsection 4, subsection big A and yes, there will be a test later. Just kidding. That is where the Medicare billing obligation comes from in the statute and most people that get this wrong get it wrong because they’ve never bothered to look at the law.
Now what the Medicare statute requires is it requires you to submit a claim and ergo some become credentialed with Medicare. Only when you provide services to Medicare Part B beneficiaries for which payment may be made under this part. And what that means is that if Medicare isn’t going to make a payment for something, Okay, then you’re not obligated to submit a claim.
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Now, there’s a caveat to that but fundamentally anything that is not covered from Medicare, you don’t have to submit a claim for. Now the way CMS has interpreted that and understanding that Chevron deference is no longer applicable under a decision by the Supreme Court recently called Loper Bright Enterprises, but their interpretation of that is that if a service is statutorily excluded from coverage you’re not obligated to submit a claim.
They believe that if a service is fundamentally covered under the Medicare statute, but wouldn’t be covered for a particular patient on a particular date of service for reasons of medical necessity, then there’s this, that triggers in their mind, this advanced beneficiary notice requirement and If you’ve looked at the new ABNs, Medicare believes that the patient has the right to tell you whether you have to submit a claim or not.
And that there’s no statutory regulatory pretext for that. It’s just something that Medicare did. The system being what it is, and you want to stay on the right side of CMS we have to look at first, have you done something that is statutorily covered? Let’s take the easy stuff.
Evaluation management services, x rays, therapy services, modalities, and procedures statutorily excluded from coverage when performed by a licensed doctor of chiropractic, okay, and that comes from the Medicare statute at 42 U. S. C. section 1395, X subparagraph R, in terms of how they define chiropractors as physicians and physicians.
For purposes of the Medicare program, you are physicians only in so far as you’re performing manual manipulation of the spine. Okay? Now, not to be politically or philosophically controversial, we need to be really particular about what the word manipulation means. In some states, like here in Pennsylvania, it’s statutorily defined in which case, you need to pay very close attention to that statutory definition because only services that meet that criteria can be called manipulation for purposes of Medicare.
This is an area where Medicare will defer to the states where they have taken the opportunity to define what manipulation is, and usually where you find those definitions, you will find definitions something similar to movement of a joint into the paraphysiologic range of motion without exceeding the boundaries of anatomic integrity for the purposes of reducing subluxation or causing cavitation.
There are chiropractic techniques that are predisposed to inducing that much movement. And there are some that are not. Now, I’ve always taken the position that you cannot categorically classify a procedure as always manipulation or never manipulation. But as the treating provider, you have to identify and appropriately document what outcome you achieve with your technique in order to determine whether you perform manipulation or not.
Point being, if you did not perform manipulation and you did, let’s say in contrast a joint mobilization procedure, you have not done anything that is statutorily covered by Medicare and you have no obligation to bill. Okay? Now, if you have done manipulation, Then you might have to bill depending on what happens with the ABN.
Now, let me roll back for a minute. I talked about states that have defined manipulation. What if your state has not? Okay, the current PubMed published definition of manipulation basically boils down to it’s a a procedure that causes cavitation. No snap, crackle, pop, no manipulation. You haven’t done anything that’s covered.
And if you’re looking for a way to avoid billing Medicare, as many of you are or should be that is the easiest way out. And I know talking to a bunch of chiropractors saying, hey, quit manipulating patients. My dad was a chiropractor. If I’d have told him that, he’d have, brain me upside the head because that’s what he did.
And I get it. But for those of you that either for reasons of the condition of the patient, in studying the Medicare Benefit Policy Manual, you look at Chapter 15, Section 240 Point 1. 3b. They list relative and absolute contraindications to manipulation that for Medicare you do need to pay attention to because if you are performing the manipulation where there’s an absolute contraindication, it’s not going to be covered.
If there’s a relative contraindication and you have not specifically documented how to mitigate the potential risks associated with that relative contraindication, again, the service will be denied. And I’ve seen that happen interestingly enough. Even where manipulation was performed in a region that wasn’t relevant to the patient’s complaint and had no bearing on the coding but because that documentation wasn’t done, the administrative law judge denied the entirety of the service.
We digress just a little bit. Sorting out the manipulation, non manipulation. If you’re doing non manipulative adjusting techniques, you’re not doing anything that is covered by Medicare, you have no obligation to bill, and you need to document as such. And we’ll talk about that in a second. If you are doing manipulation, then you’re doing something that is potentially statutorily covered under the Medicare program, and now we need to address the issue of medical necessity.
And for most physicians of any specialty, medical, chiropractic, podiatric, take your pick. Medical necessity means something a whole lot different to you than it does to Medicare. So you have to, you guys, God forbid you went to doctor school, so you think about it like doctors. But to you, it’s a clinical concept.
To them, it’s a reimbursement concept. So you got to get your head wrapped around, what they believe. Is required to make a service medically necessary and we could spend, a whole hour long presentation on that particular subject. And I’m not going to dive into it too deep, but I will tell you this.
It’s more about the documentation. Clinical circumstances certainly play a role. Things like treatment schedule and issues like that, because they lead to an analysis of the expectation component of medical necessity. But more often than not, services are denied as being medically unnecessary because of defects in the documentation.
So if you want to look at what Medicare requires, Absolutely, as a condition in their mind of payment, look at the documentation requirements for initial and subsequent visits in the Benefit Policy Manual, Chapter 15, Section 240. 1. 2. 2. Initial visits are in Subsection A, subsequent visits, Subsection B, and, At another time, we can talk about how they have interpreted some of those requirements to create new requirements, like objective measurable goals and things like that actually aren’t stated in the guidance.
Getting back to the ABN, if you do a manipulation. that you believe doesn’t meet their definition of medical necessity. And in many cases for the docs that are driving purposely towards the cash model they’ll document it specifically as medically unnecessary. Okay. And in that case, then on the ABN, you have option one and option two and option three.
Now Medicare will tell you, you’re not allowed to influence how the patient marks. chooses that option. Option one means I understand the service isn’t covered, I’m willing to pay for it, but I want you to bill it anyway, so I have appeal rights. Complete waste of time, because if you’re declaring the service medically unnecessary, I don’t care how much the patient appeals, it’s not getting overturned, it’s a complete waste of time.
Option two, the patient stating I understand the service isn’t covered, and that I have to pay for it, and I don’t want you to bill Medicare. Okay, that’s the one we want. And then option three is I understand the service isn’t covered and therefore because I have to pay for it I don’t want it. Okay. Now I mentioned that Medicare will tell you if you get on their calls You’re not allowed to influence the patient’s choice of those options.
And while that’s true There’s nothing that requires you to provide the service depending on what option the patient picks. Okay, so you are allowed to tell a patient you are free to pick whatever option you want, but if you pick anything other than option two, this visit’s not going to happen. And why, would you consider that approach?
And the reason is that you’re going to pay your staff a bunch of to submit a claim that you know is not getting paid. Then you’ve got to post the denial and you’ve got to store the EOB electronically or on paper for forever, 10 years. It’s just a huge administrative cycle that results in a big fat nothing.
And it makes even the paltry reimbursement that you get from Medicare less valuable because you have more expense in it. So you become less profitable assuming that profit was even possible with Medicare anyway, and it’s not if you’re truly going to comply with all their documentation rules. That being said option two, patient understands they’re not going to pay for it.
The other problem with option one, you go ahead and submit a claim. So CMT code 989401 or two without the AT modifier. That means to Medicare that it’s not medically necessary and you’re gonna put a G the appropriate G modifier, GX modifier, or GA modifier on the claim to tell them that you have an ABN, which will cause the claim to deny, but it will deny on a PR code, meaning the patient’s responsible as opposed to a CO code, which means you have to eat it.
So you do that, and then the patient complains to Medicare. Okay, why didn’t you pay this? Because it wasn’t medically necessary. And, but the mere fact that the patient called and questioned why it was denied, they’ll pull your ABN. They will find it defective no matter how perfectly filled out it is.
And Make you refund the patient their money. And it’s just what happens. So option one is a setup. You shouldn’t do it. And if you elect to do that anyway, take your chances if you get burnt, I’ll try not to say I told you so and laugh at you because it’s really a silly option. Your staff has much more productive things to do than submit claims that you know aren’t going to get paid. And then option three, of course, patient doesn’t want the service, so they’re taking the train and maybe they go down the road to your competitor and get them the bill for them and become that doctor’s post payment nightmare.
You don’t want it to be yours. Now, let’s talk a little bit more about medical necessity. I touched on this and I pointed out that the documentation by and large makes services medical, medically necessary. If you look at the benefit policy manual definition of medical necessity at 240. 1. 3, it has three components.
You have to demonstrate subluxation by part or x ray. You don’t hit this precisely, you’re done. Okay, the service will be denied as medically unnecessary. Part analysis, you have to have two of the four. And one of the two has to be A or R. So you have your palpatory findings, asymmetry, range of motion, and it’s range of motion of the segment, not like the cervical spine.
So you have to have hypomobility, hypermobility as a finding at precise levels, okay? So you could say have palpatory tenderness in the region of C4 to C7 and you have hypomobility of C5. Okay, you’ve demonstrated subluxation at C5 at that point. Okay, under their guidance. Now, I don’t want to get into the clinical whether that makes any sense or that’s really real or not or how you do it.
That’s the way Medicare does it and you have to follow their rules if you Okay, and then the tissue tone, so the P and the T don’t lend themselves necessarily to level specific findings, but you need to make them level specific. And for each region of complaint, not only do you need a history of present illness for each region, but you need part analysis for each region, okay?
Then you’re going to need other physical exam findings because in addition to the subluxation, you have to demonstrate the existence of an associated neuromuscular skeletal condition in each region of the spine that is causing functional deficit. And that associated musculoskeletal condition has to be something that manipulation will fix.
Okay, so you have to be able to draw a direct clinical correlation between the performance of manipulation to reduce the subluxation as having an indirect effect on improving that associated neuromusculoskeletal condition that is causing some type of functional deficit. Okay, and then finally, the expectation component, and this is the one that’s the most tricky, is that you have to have an expectation or your documentation needs to support that you have an expectation of improving the patient’s condition or capacity to function in a reasonable and generally predictable period of time, and that’s The one that, you know, where the patient’s circumstances and the treatment circumstances come into play.
So let’s say, for example you have a patient and for whatever reason their cousin Gladys can only bring them to the practice once every two weeks. You’re never getting anywhere with that condition. Once every two weeks is not going to fix anything. At best, you’re going to palliate the patient’s symptoms and you’re not going to be able to demonstrate objective, measurable improvement.
Okay? Now earlier I mentioned documentation makes care medically necessary. Miss any of the HPI elements. You got to hit them all. Miss your review of systems. Don’t do an examination. Miss your part evaluation. Where you’re not demonstrating subluxation some people believe x ray results they’re somewhat unclear in their x ray findings as to where the specific levels of subluxation are and for that reason, they get blown out on the subluxation element.
Sometimes. No, no evidence of an associated neuromusculoskeletal condition because, you go through an examination and you wimp out on the diagnosis and you come up with a symptom. Under ICD 10 guidelines, you never ever report a symptom when the cause of the symptom is or should be known. So once you’ve done the examination, you should have an understanding of what the condition is that’s causing their pain.
Or their restricted motion, or difficulty walking, or whatever the symptom you happen to report as a basis for doing your examination in the first place. And if the examination doesn’t reveal it, then you have to withhold treatment, do further diagnostic studies, and then once you have diagnostic confirmation, then you start treatment.
In many cases, chiropractors start treatment on day one because they want the patient to get the benefit, yada yada, and I get it. That’s marketing stuff. I’m talking about medical necessity stuff and your decision making process has to make sense. Now you can declare potentially a suspected diagnosis, but you can’t report it and do treatment on that basis.
But you gotta specifically document that’s what you’re doing and nobody ever does. They just start off into care and, they get the benefit. Moving further into the medical necessity analysis, we talked about visit schedule. The importance of demonstrating an appropriate neuromuscular skeletal condition.
But you have to line that up for each region that you’re treating, so it’s going to take at least Six diagnoses for a 98941. And you need to, okay, here’s the NEC, history of present illness, location, quality, severity, duration, timing, context, associated signs, symptoms, modifying factors.
Now you want to jump to, the low back and you want to do, Lumbosacral pelvis or lumbosacral or whatever regions you’re doing, you have to do an HPI for that area as well. And then you have to do an exam and document subluxations in each of those regions. Diagnosis is in each of those regions is a major pain in the patootie, to structure your documentation, to make it clear.
why you’re treating three regions of the spine. And it can’t be, I’m a chiropractor. I treat full spine and that’s what I do. But I’m I’m scared to bill a 98942. So I’m going to throttle back and bill a 98941 all the time. It doesn’t make sense and it’ll get you audited sooner or later. It, by the way, expect another Medicare audit swing on chiropractic.
We haven’t seen one in about four years. I just saw on the OIG work plan, they’re doing cert audits on chiropractic. Again, so what follows that is they’ll publish a study, and then the UPICs will go down and start whaling on chiropractors. So expect a Medicare chiropractic post payment audit swing in the next year or so.
And I hope it doesn’t happen, but if it does be prepared for it if you’re going to continue to bill Medicare. And finally, in the treatment plan element of your documentation, the guidance in the Benefit Policy Manual requires you to have frequency, duration, specific goals, and objective measures to evaluate treatment effectiveness.
Now, objective measures to evaluate treatment effectiveness is just examination and maybe diagnostic testing. Okay, what Medicare has done and all the Medicare auditors have done, they’ve taken the specific goal and the objective measures component and turned it into a new requirement for objective measurable goals.
Okay, which means they need to see some numerically quantified objective. And throughout care, see that you’re moving in that direction. And there’s a way to do it. And it’s a major pain in the butt. No EMR systems accommodate that, that process. And which is why most chiropractors when they get audited, have difficulties with medical necessity because your notes are too focused on soap notes, not focused on the treatment plan, establishing goals, and then, As you go through care, evaluating where the patient is relative to those goals, so that you can make appropriate discharge determinations either when you plateau or when you reach your goals.
What you see most often than not, sometimes you’ll see some range of motion and you’ll see evidence of improvement, but nowhere does the doc ever mention what those improvements mean relative to ongoing treatment decisions. So it becomes useless. And then you’ll see pain scales reducing, which at best allows us to declare the care palliative, which isn’t covered.
If you’re using outcome assessment, that’s fine, but you got to talk about in your assessment, what the heck that stuff means. What does it mean about, whether we’re going to continue treatment or not? What does it mean, about maybe shifting some of the the treatment burden home?
Having the patient at, modify activities or, there’s just. There’s forms in there and we’re supposed to independently figure out that all this care is great because these numbers are going down when you don’t mention anything about it. So decision making and your discussion in your documentation about what’s going on, why the care is working, what evidence there is of it, and what you’re going to do next because of it, That’s what you never see, and that’s why chiropractors in Medicare post payment audits as well as commercial post payment audits have such a difficult time with medical necessity, and I know it frustrates you because your care is actually working, but what you have to understand is that in a Medicare and a commercial payer post payment audit, it’s not just a post payment audit.
There are a couple facts that are completely irrelevant to whether a carrier thinks services are medically necessary. They don’t care that it was a real patient. They don’t care that the patient had a real problem. It’s irrelevant that the patient got real treatment and it’s even more irrelevant that the patient really got better because of your treatment.
None of that stuff comes into play. All that matters is what the documentation says. And you either learn to become a documentation expert which I could show you how to do it, but it takes too much time. You’ll never make money. Because you’re going to spend all your time doing documentation, and that is why, so many practices are moving to cash.
But that’s, you want to win a medical necessity case, that’s how you do it. I have documentation examples that I provide to my clients, and they look at it and they’re like, forget it. Because they don’t have the system support to do what payers want. Systems that are out there generate basically the same product with varying degrees of precision, user friendliness, and whatnot, but they miss the mark in terms of, the objective measurable goal, air quote, requirement that isn’t really a requirement, but it has become one.
And that’s just how folks audit. Now, finally, we want to talk about forms, um, depending on which way you’re going, whether you’re going to bill Medicare, not bill Medicare, perform manipulation, not perform manipulation. Most people misuse the ABN. Earlier I pointed out that the ABN is for one thing, it is for a form.
potential, a statutorily covered service that for this patient on this date is not medically necessary for a specific reason that is going to cause the patient to incur a financial liability of a specific amount. Okay? Now, some people believe that they can do ABNs at the beginning of every year. and they’re good for the year.
Wrong. Okay, why? Because it doesn’t put the patient on notice of two things. Why a particular visit during the year is not going to be medically necessary and the particular amount that patient is going to be liable for on that visit. Now if you were to do a course of care ABN, which Medicare technically permits, okay, and let’s say you sign a patient up and they’re going to come once a month, so you do put on your ABN 12 visits, 12 times, whatever the fee is going to be and that’s what they’re going to pay.
And the reason it’s medically unnecessary is because the patient’s on a defined plan of care that is for purposes of wellness rather than restoration. Yay, okay? And you do that perfectly. The only problem is, what happens if a patient misses a visit, adds a visit, has an exacerbation, now your ABN’s shot, you got to redo it, and that’s where people they miss that, and so their ABN’s are not going to hold up.
And I will tell you, I’ve never seen an ABN hold up anyway but the other thing about ABN’s, they are only for one service. Remember I said an ABN is for a statutorily covered service, which for chiropractors is manual manipulation of the spine, period. Okay. If you don’t put exams, x rays, therapies Council and whatever.
You don’t put any of that stuff on the ABN because it doesn’t apply. That stuff isn’t statutorily covered. Medicare used to have another form for that. It was called a Notice of Exclusion of Medicare Benefits, and you were not required to do one. I always thought it was a good idea. I still recommend use of the form, even though Medicare’s dropped it from their forms database.
But it’s still a good form more for if a patient would complain to your licensure board, demonstrating that you put the patient on notice of the specific things that Medicare absolutely will never ever, in the infiniteness of never, ever pay for. So all of that stuff goes on there and interestingly, we include non manipulative forms of adjustment as a a thing that Medicare does not pay for.
I also told you I’d talk about documentation. If you’re manipulating performed manual manipulation with this technique, fine. At these levels, okay that, that’s sufficient. Where you’re not performing manipulation, you say, I perform joint mobilization, manual traction using this technique.
Okay don’t just go with the technique or you leave it up to the reader of your documentation to determine whether they think that was manipulation or not. And we get into this big gunfight about what you did. Be precise. If you’re not manipulating, even go so far as some clients that they’ll say perform joint mobilization using, X technique, period.
Manipulation was not performed, to put a nail in that coffin. And Medicare respects that. When, if a patient calls and complains, say, Oh, Dr. So and so isn’t submitting my claims to Medicare, they’ll ask for your records, and when they see that, you’ll put a cover letter on it, saying we’re not submitting claims because we don’t have to, because we’re not performing manipulation of the spine.
Okay? One last point about this manipulation topic. Most people misread the Medicare Benefit Policy Manual definition of manipulation. There is a provision in there that says, manipulation performed with a manually controlled instrument. is covered under Medicare, okay? That does not mean that instrument adjusting is covered per se, okay?
It means that manipulation performed with a manually controlled instrument is covered and I know that some people are going to lose their minds over this, but you need to evaluate at the time you treat the patient, did You in the PubMed context move the cause cavitation or potentially in a state statutory definitional context move the joint into the paraphysiologic range, which usually causes cavitation.
Can you reconcile that you perform manipulation? Now understand you can’t take a harsh discrimination for purposes of Medicare and then just not care about it going forward. Correct coding is correct coding. Manipulation is manipulation. Joint mobilization is joint mobilization. They code differently, okay?
So you can’t you know, be wishy washy on how you’re going to code your technique. Be objective about it. If you’re causing cavitation, it’s manipulation. And if it’s Medicare, you’ve got to do the ABN. Option two, to avoid having to bill Medicare. Or if it’s medically necessary and you’ve done all the documentation, then you can report your CMT code with the AT modifier and get your reimbursement for Medicare.
If it’s not manipulation, then it’s not manipulation. And you need to have that discussion with the patient to make sure they understand. That you’re doing a technique that is not manipulation, it’s not covered by Medicare. And maybe you choose that technique for that patient because they have a relative or absolute contraindication.
And if you’re trying to avoid billing Medicare, you can use Medicare’s own guidance to your advantage. If you want to bill Medicare then you have to perform manual manipulation either with your hands or with a manual, manually controlled instrument. Period. Case closed end of story. And yes, I have done defenses of post payment cases where the UPIC, the Unified Program Integrity Contractor, argued that the services weren’t compensable because manipulation was not performed.
Okay. So when you’re doing manipulation, be clear that you are. Okay, because you want a bill or whatever. If you’re not doing manipulation, be similarly clear. But manipulation is a specifically defined outcome of a technique. It’s not a technique. So there are many chiropractic techniques that merely perform mobilization.
And I’m not saying that they’re bad. It’s just from a coverage perspective, they’re not covered. And you need to get your head wrapped around that. And that’s why as a coder, I hate the word adjustment because that word doesn’t exist in the code book. It doesn’t exist. It does exist in Medicare.
Medicare makes adjustments synonymous with manipulation, but in many cases, the word adjustment is used without reference to. The outcome of the procedure. It’s just a generic term for any chiropractic technique. And for that reason, it causes problems in the reimbursement world. So I think that’s about all we have time for today.
Hopefully we’ve debunked some of the myths about Medicare billing, some of the technical definitions of what’s covered and what’s not, some issues about medical necessity that will hopefully help you become less of a Medicare target and bottom line, If, when you really study this stuff, you’re going to find that a significant portion of your Medicare practice is not going to qualify for Medicare coverage under their definition of medical necessity.
Think significant health problem, like they’re a serious hurtin can of corn where you expect to achieve a significant benefit. Okay, so these are three time a week patients, maybe and understand that the Medicare average a number of visits per patient is like 5. 6 last time I looked at it so these are not long treatment plans, but you can get longer treatment plans covered if you document them the right way and there’s a very precise way to do that I wish I had time to show it to you, but it takes about two hours And unfortunately, I don’t think Dr.
Stu would like me doing a two hour little podcast thing so we’ll have to save that for another time, but anyway, hope this was helpful and we’ll see you next time.
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