The Perils of E&M Codes and Insurance

Lately, I have been inundated with Medicare and Medicaid healthcare providers getting audited for evaluation and management (E&M) codes. I know Dr. Hirsch (Ronald Hirsch, MD) has spoken often about the perils of such codes. The thing about them is that everyone uses them: hospitals, family physicians, urgent care centers, and specialists.

Obviously, for a specialist, like cardiology, the higher-level codes will be more common. A 99214 will be common, compared to a generalist like a primary care physician, whereby a 99213 may be more common.

Here’s a little secret: the difference between 99214 and 99213 is subjective. It’s so subjective that I have seen auditors hired by private companies to audit on behalf of the Centers for Medicare & Medicaid Services (CMS), making them financially incentivized to find fault, find 100-percent error rates. Who finds a 100-percent error rate? Not one claim out of 150 was compliant. Then, I come in and hire the best independent auditors or coders; there are generally two companies that I always use. The independent auditors are so good. Most importantly, they find a much more probable error rate of almost zero.

Hiring an independent expert coder to ensure that Recovery Audit Contractor (RAC), Medicare Administrative Contractor (MAC), Unified Program Integrity Contractor (UPIC), or Targeted Probe-and-Educate (TPE) audits are performed accurately is always part of my defense.

Recently, I learned what I should have known a long time ago, but is essential for you to know. If your medical malpractice is with The Doctors Company (TDC), for free, you get $25,000 of what TDC calls Medi-Guard, or regulatory compliance protection. In other words, say you get audited by a UPIC and are informed that you owe an alleged $5 million (extrapolated, of course) – in that case, you get $25,000 to pay an attorney for defense. Sadly, that sum will not come close to paying your whole defense, but it’s a start.

When you are accused of an alleged overpayment, placed on prepayment review, or accused of a credible allegation of fraud, your reimbursements could be in imminent danger of being suspended or recouped. It is imperative for every healthcare provider to stay apprised of what penalties they are facing. You want to know the best-case scenario and the worst-case scenario.

And, providers, be cognizant of the gravity of your situation. Infringement of the False Claims Act can result in high penalties or jail, depending on the circumstances and the provider’s attorney. I had one client who is an M.D. psychiatrist. She asked me what the worst penalty possible was. I am blunt and honest, apparently to a fault. I didn’t miss a beat. “Jail,” I said.

She was horrified, called her insurance company, and requested a new attorney. Well, a new attorney is not going to change the outcome. She falsified 17 dates of service because she wanted the service notes to be “perfect.” Well, providers, there is no such thing as “perfect,” and changing diagnoses and CPT® codes and adding details to the notes that you supposedly remember from a month ago is not OK.

I feel bad for her – for leaving me. I could have gotten her off without any penalties. You see, she misinterpreted an email from the UPIC and thought it said that you can fix any errors before submitting the documents. She fabricated 17 claims before I was hired and instructed her to stop. I had a solid defense prepared. I was going to hire an independent auditor to audit her 147 claims, with the 17 falsified claims. I would have hoped for a low error rate. Then, I would have conducted a self-audit and self-disclosed the fabrications to the UPIC, with the explanation that it was a nonintentional, harmless error that we are admitting.

Self-disclosure can sometimes save you from penalties! However, if you don’t self-disclose, you will be caught. Unbeknownst to her, on page 6 of the service notes are time and date stamps. This revealed on what day she changed the data, and what data she changed.

Those of you who would also terminate your attorney because you think you can get away with fraud without anyone noticing, think hard about whether you would like to suffer the worst penalty – jail – or instead have your attorney be honest and upfront and get you off without penalties by following the rules and self-disclosing any problems uncovered.