How a Texas Health System Beat a $61.8 Million Billing Fraud Case

The allegations in the case focused on CCs and MCCs.

EDITOR’S NOTE: This story appeared Aug. 20, 2019, in the ICD10monitor news.

A Texas federal judge recently dismissed a False Claims Act lawsuit alleging that Dallas-based Baylor Scott & White Health overbilled Medicare by improperly upcoding claims.

The whistleblower lawsuit, filed in 2017, alleged that the health system submitted more than $61.8 million in false claims to Medicare over a seven-year period. The allegations in the case focused on two secondary diagnosis codes, for complications or comorbidities and major complication or comorbidities (CCs and MCCs).

These codes are at the crux of clinical documentation integrity (CDI) programs for which CDI specialists review inpatient medical charts concurrently to identify opportunities for reporting of additional diagnoses and/or clarification of existing documented diagnoses, for the purposes of increasing reimbursement for the hospital. In a nutshell, the whistleblowers alleged that Baylor Scott & White’s medical director for coding and utilization led the alleged scheme to overbill Medicare. This scheme allegedly consisted of efforts to increase the number of patients whose services were coded with CCs and/or MCCs.

Reviewing the Details
U.S. District Judge David Ezra dismissed the lawsuit because the whistleblower failed to properly state a claim for relief.

In the order dismissing the complaint, the judge cited a Centers for Medicare & Medicaid Services (CMS) regulation noting that the agency does “not believe there is anything inappropriate, unethical, or otherwise wrong with hospitals taking full advantage of coding opportunities to maximize Medicare payment that is supported by documentation in the medical record.”

Based on the regulation, “the mere fact that defendants took targeted steps to increase their coding of CCs and MCCs to increase hospitals revenues is neither fraudulent nor improper, per se,” Ezra wrote. “To state a claim for relief, there must be an allegation that a defendant knew that using a particular code was incorrect.” The complaint did not include any such allegations.

The CDI Profession’s Response
The CDI profession’s response to the dismissal of the lawsuit has been overwhelming, with the following comment representative of the industry at large: “great day for the CDI profession.” There appears to be a welcome relief, with a continued sentiment that present-day CDI’s mission, supported by the query process, in the interest of optimizing reimbursement under the DRG system, is further sanctioned by the judge’s ruling.

Let’s take a closer look at the judge’s citations as an integral part of the rationale for dismissing the case, considering whether the first citation still has relevance in today’s healthcare environment – where complete, accurate, and effective documentation is the mainstay of quality-of-care achievement, as well as a solid financial position in the current marketplace.

• “CMS does not believe there is anything inappropriate, unethical, or otherwise wrong with hospitals taking full advantage of coding opportunities to maximize Medicare payment that is supported by documentation in the medical record.”

In reviewing this quote, a couple of immediate points surface that are fundamental to applying the concept of maximizing Medicare payment to CDI operational processes and outcomes. First, the term “maximizing” is not synonymous with “optimizing,” with the former conjuring up an image of pushing the envelope or engaging in some potentially questionable activity in the spirit of increasing reimbursement. Optimization may be defined as an act, process, or methodology of making something (such as a design, system, or decision) as effective as possible. “Effective” is the most relevant word in the process of optimizing reimbursement from a third-party payer for provider services rendered. Optimal reimbursement is predicated upon a series of processes that are fundamentally integral to the success of the hospital revenue cycle.  

An Effective and Efficient Revenue Cycle: A Common Theme
Effective and efficient revenue cycle processes require a synergistic approach, whereby the sum is only as good as the contributing parts. The Healthcare Financial Management Association (HFMA) defines a revenue cycle as “all administrative and clinical functions that contribute to the capture, management, and collection of patient service revenue.” A common theme extending throughout the entire revenue cycle is clinical documentation: simply put, the performance of the revenue cycle is driven by the quality and completeness of documentation and communication of patient care. Compliant, complete, and accurate coding of medical record hinges upon accuracy and completeness of the clinical documentation, in support of the care provided by the hospital, orchestrated by the physician or other clinicians. Optimal code assignment requires the ability of the professional clinical coder to review the record, confidently and easily identify all relevant principal and secondary diagnoses, and ensure the assignment of the most clinically relevant principal diagnosis that occasioned the admission to the hospital, while applying official coding ICD-10 coding guidelines and Coding Clinic advice. Optimal coding, supported by optimal clinical documentation and communication of patient care that clearly and consistently reflects the patient story, is a strong recipe for optimal reimbursement. Describing it another way, optimal reimbursement is further achieved through ensuring provisions of clinical documentation capture and reporting the right care at the right time for the right reason in the right setting with the right clinical judgment and medical decision-making, inclusive of the right documentation.

Is the Lawsuit Dismissal a True Win?
On face value, the dismissal of this whistleblower lawsuit appears to be a positive affirmation of current CDI processes of optimal coding secured through diagnosis identification, based primarily on the query process. As I pointed out prominently in several earlier articles published in ICD10monitor, I would refer the reader to the 2018 Supplemental Fee-for-Service (FFS) Improper Payment Report, wherein the FFS Inpatient Prospective Payment System (IPPS) improper rate was reported at 4.3 percent, translating into $5 billion paid in error, or 15.7 percent of total FFS improper payments.

Nearly 89 percent of the improper payments in the hospital setting were attributable to either insufficient documentation or medical necessity. Clearly, diagnosis coding provides no assurance of accuracy in claim submission and payment to providers. Payment accuracy on an individual claim and in totality can only be achieved through complete and accurate clinical documentation, representing the true patient story, starting in the emergency department and spanning into the history and physical, progress notes, and discharge summary. Diagnoses reported in the record must be clearly, consistently, concisely, and contextually backed up by the clinical facts, information, and context of the case. This is where CDI inarguably has yet to make inroads in achieving meaningful, measurable change in physician patterns of documentation that is sustainable over time. The query process is certainly not moving the needle on documentation integrity, as evidenced by increasing medical necessity and clinical validation denials, coupled with DRG downgrades. While third-party payers are becoming more overly aggressive in denying payment to providers, I am witnessing firsthand hospitals experiencing increasing challenges in appealing these denials, mainly attributable to insufficient (also known as poor) clinical documentation.

I submit to you that the dismissal of this whistleblower lawsuit does not negate the fact the current CDI operational processes are simply not effective in improving the integrity of each clinician’s documentation. In many ways, the current hallmark of CDI consisting of queries is degrading the integrity of the revenue cycle.

I call on every CDI professional to consider your current CDI processes and the immediate need to move away from the repetitive, reactionary approach to CDI that overlooks the opportunity to achieve meaningful improvement in documentation.

We owe it to our patients, physicians, and providers.