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Hello everyone. This is Michael Miscoe with Miscoe Health Law and welcome to this week’s edition of ChiroSecure’s Growth Without Risk presentations. And what we’re gonna talk about today is what I like to call the Medicare dilemma. And in chiropractic, does Medicare billing Medicare actually make any sense whatsoever?
Once you understand not only Medicare’s coverage limitations, but their, more importantly, their documentation requirements. And I would start with, as you think about whether it makes any sense to continue billing Medicare and. Notice I’m saying continue billing Medicare. I’m not talking about whether you continue to see Medicare patients but with respect to billing Medicare you have to consider the amount of work involved versus the risk and the potential profit.
So to bring a Medicare patient into your practice, you’re gonna have to obviously do an initial exam to comply with the initial visit documentation requirements of the Medicare Benefit Pen policy manual, which is Pub 100 dash two, chapter 15, section two 40.1 0.2 a, and in there it outlines all the elements of documentation that are required for the initial.
And what I’ve found doing many Medicare post-payment audit appeals for chiropractors across the country is that Medicare contractors and many administrative law judges look at those or look at compliance with those requirements as a condition of payment in the Medicare program. Meaning if you do not have that the documentation guidance says that you’re supposed to have, then that makes the service medically unnecessary. Which superficially is ridiculous because it’s not. The paper, what’s on the paper that technically should make care medically necessary or unnecessary. It’s whether the patient consistent with the medical necessity, requirements, or standards in the benefit policy manual, section two 40.1 0.3, whether the patient has an subluxation.
In the direct area of complaint, whether this is an associated neuromusculoskeletal condition and whether there’s an expectation that the care will significantly improve the patient’s condition or capacity to function in a reasonable and generally predictable period of time. Or if you look at section two, 40.1 0.5 will arrest or retard deterioration in the patient’s condition.
So in that unfortunately, medical necessity analysis for Medicare is more about whether you filled in all the blanks or not for both the initial and subsequent visits than it is a strict analysis fundamentally focusing on that expectation component of medical necessity. Although Contractors especially, they’ll take the treatment plan requirements, which are only detail what a treatment plan should include, and they take in the second and third elements, the specific goals and objective measures to evaluate treatment effectiveness.
And they turn it into this requirement for objective, measurable goals, which nobody has, and therefore they deny all the care. And best efforts notwithstanding sometimes were successful at convincing administrative law judges on appeal which is a very expensive process that the analysis of medical necessity should focus on whether there was a real patient who had a real problem, real subluxations and associated neuro neuromuscular skeletal conditions, got real treatment and got an actual real benefit.
Interestingly, those are facts that aren’t usually considered in these. Or in these audits, and that should be the only thing that’s significant. So when you’re looking at the obligation to bill Medicare, there are a truckload of documentation, content requirements that come along with it that make it extremely time consuming to develop the documentation that Medicare wants as a means of having an expectation of keeping the money that they’re paying you based upon the claims that you’re.
Now doing all that documentation is probably gonna get you a 99 2 0 3 maybe a 2 0 4 if you’re billing on time. And you can document the time correctly and which means that exam is gonna net you. Maybe even though Medicare doesn’t pay for it, let’s say you’re charging the Medicare patient Medicare’s allowance for when it is covered.
So it’s probably, let’s say it’s $150 just for round numbers. It’s a little bit less than that, but let’s just say it’s $150. You’re easy gonna spend an hour to an hour and a half of your. Examining the patient and drafting the treatment plan in order to meet Medicare’s documentation content requirements.
So in 60 to 90 minutes, you have to compare how much could you make banging out cash visits even at $40 a pop. It doesn’t take too many before. Three, four people in that hour and you’re already making more money than you’re making writing treatment plans. And in the cash world, you’re doing a service that you enjoy doing as opposed to something that you probably absolutely hate doing.
Unless you went to chiropractic school to learn how to write treatment plans and that’s your thing that may not be it. If nothing else, an enjoyable use of your time to start off the plan of. Second problem with Medicare is then you have the subsequent visit documentation requirements, and the patient actually has to follow through with the care plan in order to demonstrate that they did in fact, have a significant health problem that required a deliberate form of treatment.
Okay? When the patient becomes non-compliant, it’s indicative that the patient didn’t really need the care and we would lose the medical necessity argument on that fact alone in post-payment analysis. Let’s say the patient does follow through with the care plan. Medicare believes based upon its average utilization that patients on average should receive about 5.8, 5.9 visits per year.
Notice I didn’t say per condition. I said per year. If you’re treating your patients more than that obviously your documentation needs to be much more precise in terms of tracking change and there’s a process that you could learn to do that. There’s unfortunately no automated way to do that. And it again, is very time consuming.
If you don’t do it well, yes, you can build the visits, but you. Embrace the idea that you might be audited and you may be asked to pay that money back. Subject to appeal, which again, as I pointed out is a bit spendy. Fortunately, if you have ChiroSecure medical malpractice coverage, they do have audit defense.
Coverage options. Why? Get in, put yourself in a scenario where you’d ever have to use it. I It’s nice to have it if you need it, but you don’t want to be creating reasons to use that coverage. There is a significant amount of risk. The Medicare appeals process is very deliberate.
There’s no settlements you have to win either in full or in part. Otherwise you’re gonna pay the money back. And if you don’t they charge a very Ridiculous interest rate. It’s about anywhere from nine to 10%. And it rolls until the money’s paid back. Even if you get approved on an extended repayment schedule, the interest is still gonna accrue starting the 31st day after the date of their payment demand.
In a Medicare case, even if you’re charging for the exam and let’s say X-rays, say those are 50 bucks, so that’s $200 for the first visit. Let’s say you do your six visits and let’s be gracious and say there were $40 a visit. We have a $640 case where you’re gonna have several hours worth of documentation work and six years worth of post-payment.
It doesn’t seem equitable and in fact it’s not. So if you were doing just Medicare patients, you would go broke before too long because you just don’t have enough time to do all the documentation as they require it for enough patients to ever make a profit. That’s the reason why many providers are trying to get away from billing Medicare.
If you are one of those folks that has questioned why this makes sense and how do I get out of it, and you’re the unfortunate belief that you’re stuck and there’s nothing you can do you would be wrong. Because there are some things that you can do. Obviously most people would agree that if you do non-covered services like electric stem, ultrasound, things of that nature, They would agree that you don’t have to bill Medicare, but w you have to really precisely analyze what Medicare actually covers when performed by a doctor of chiropractic.
And it is manipulation of the spine. In the benefit policy manual, it’s section two 40.1. They create an exception for instrument. But you have to perform a manipulation with the instrument. It doesn’t say instrument adjusting is covered. It says that manipulation performed with a manually controlled instrument is covered because the statute is very precise.
It says manual manipulation of the spine. So the benefit policy manual makes that clarification. But the key is manipul. Now I’m a coder. The word adjustment doesn’t mean anything to me because there’s no code for it. So I’m very precise about whether something is manipulation, it’s mobilization, it’s manual traction or some other type of therapeutic intervention.
I said this many times and I’ve been criticized for it, and I’m gonna say it again because it happens to be right. Any technique could be manipul. Any technique might not be manipulation on a case by case basis. And it’s important to understand what manipulation is or how it’s defined in states where chiropractic and PTs have drawn a line of demarcation.
With PTs, it’s a difference between a grade four and a grade five mobilization. The chiropractic is called a manipulation or adjustment, but it’s commonly defined, consistent with every textual definition I’ve seen in either published standards and or widely known chiropractic text, it’s defined as movement of the joint into the neurophysiologic range of motion.
So grade four mobilization moves the joint within the passive range, but doesn’t break that barrier. Sometimes. Manipulation is equated with audible cavitation, although in theory you could move the joint into the neurophysiologic range and not get a cavitation. Usually when you get a cavitation, that means you broke the pph physiologic barrier.
But however you define it, you can take advantage of that precise definition and if you perform non manipulative forms of adjust. Then you have no statutory obligation to bill. So if you read the Medicare statute very carefully I’ll direct you to 42 usc, section 1395 W hyphen four, subsection G, subsection four.
You’ll find that your obligation to bill only extends to services, and I quote for which payment may be made under this part. So if Medicare won’t make a payment for something for whatever reason, meaning it’s statutorily excluded from coverage, then there’s no obligation to bill. And interestingly enough, the fee limitations don’t apply either gets a little quirky when we talk about spinal manipulation and chiropractors because that service is not.
Per se sta statutory excluded from coverage. However, there is a general exclusion at 42 usc, section 1395 y subsection A, one big A that says that items or services that are not medically necessary for the diagnosis or treatment of an injury, illness, disease, or defect are not covered under the Medicare program.
Now, Medicare takes the position that because manipulation is. And is only not covered for reasons of medical necessity that if you wanna avoid the billing obligation, you have to tell the patient that the service that they’re gonna receive on that day is not medically necessary. Fill out an abn. And if the patient selects option two, then you are absolved of your billing obligation.
Now, interestingly enough, the option one, option two, I understand it’s not medically necessary and I have to pay, but I want you to bill Medicare option one, or I understand it’s not medically necessary and I have to pay, and I don’t want you to bill Medicare, and I further understand that I have no appeal rights.
Those options really don’t have any regulatory or statutory origin. Nothing in the statute of regs regarding ABNs gives the patient the authority to direct you whether to bill or not. It’s something that Medicare came up with on its own, with its form. If you remember, if you’ve been around the game for a while, you remember the ABN forms of old didn’t have that option nonetheless they do now.
And Medicare will tell you, you cannot influence or tell the patient how to fill that. But you can tell them, depending on how they fill it out we will determine whether the service is gonna happen or not. They’re free to pick option one, but if you are. Adamant about not submitting claims to Medicare.
Then you can say we’re not willing to provide the service. You need to go somewhere else. And many of my clients in fact, do that. If you pick option two, we’ll provide the service, sign the abn, bad news, you gotta do the ABN every day. So it becomes administratively a little bit more.
To go the non-bill route when you’re performing spinal manipulation as opposed to non-manipulative forms of adjusting. However either one will get you there. The one downside about. Doing the manip route with the abn. If the patient calls Medicare no matter how perfect your ABN is filled out, they will determine that it did not provide the patient’s sufficient notice of the patient’s obligation to pay.
They’ll make you refund the money to Medicare and they will refund it to the patient under the N E M. I didn’t do a covered service option as soon as they see through the notice of exclusion of Medicare benefits, some of the other cash forms we implement, and the the documentation, which is very precise as to whether manipulation, mobilization manual traction was performed and they see that manipulation was not performed through a cover letter.
In the response, they realize that a covered service didn’t happen, and Medicare. Fine. They understand why bills were not submitted in that scenario. Either way your takeaways are the Medicare risk, work risk versus profit. Equation is completely upside down. Some folks have turned away Medicare patients unnecessarily only because they thought if they saw a Medicare patient, they had to submit a claim and they didn’t want to do that.
There are legitimate ways to avoid that obligation. And with a little bit of effort and documentation, you can Exercise those and continue to treat your Medicare patients. You’re just gonna do it on a cash basis. And how you explain it to your Medicare patients, either I’m no longer gonna do a service that’s covered by Medicare, or I’m not gonna dance on Medicare’s marionette strings or I’m getting off the hamster wheel.
Most of your patients if they value the services that they’re receiving from you, will. They will pay cash and even if they don’t come as often you’re gonna be a lot happier cuz you’re never gonna have to look over your shoulder waiting for Medicare to start shooting rockets at you. I think that’s all we have time for today and I hope that was helpful.
Obviously that’s about a one hour discussion condensed into 15 minutes feel free to reach out if you have any questions. Until next time, have a great day.