Blog, Chirosecure Live Event April 9, 2024

Chiropractic Malpractice Insurance – Critical Compliance Update

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Hello, everyone. This is Michael Miscoe with Miscoe Health Law with this week’s installment of ChiroSecure’s Growth Without Risk presentation series. I’m going to talk about a couple of issues today. I’m going to start with some compliance issues that we need to review. One which I went over a little bit maybe last month or the month before was the Corporate Transparency Act.

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And I just want to give you an update on that on Transcription by CastingWords March 1st Federal District Judge in the Northern District of Alabama ruled the Corporate Transparency Act unconstitutional. If you were planning on getting your information together to go ahead and submit those filings, you do not have to do it’s I suspect that case will be appealed into the circuit courts and maybe before the Supreme Court, so stay tuned to see what happens with that. But for now, it has been ruled unconstitutional you don’t need to worry about it. Now also on the compliance side of things, I thought we would review some compliance trends that I’ve noticed over the past year or so relative to where.

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Post payment audit efforts have been focused and we’ll start with audit efforts focused on multidisciplinary practices. I’m noticing that Medicare contractors are selecting providers, multidisciplinary practices that have physical therapy perform with physical therapists. They’re selecting those practices for what are called TPE or Targeted Probe and Education audits.

Those audits go in three rounds. In the first round, if you have an error rate that’s above 5 or 10 percent, then you’re automatically enrolled in the second round. You have to, implement corrective action and whatnot to their education. And then the first round audit result, it is appealable, of course but to the extent that the error rate is even if it’s if it’s over 10%, it’s going to trigger liability under the voluntary disclosure and refund rule.

So you need to be cautious, even though the amounts. In a TPE audit, because they usually only involve about 40 claims the amounts are not that great, but when you consider the voluntary disclosure and refund liability that gets triggered as a result of that error or assertion of error especially to the extent that you don’t agree with it, certainly appeal but, it’s not that great.

That is the only way that you can delay any disclosure and refund obligation as a result of the audit. Now what they seem to be focusing on is billings with the KX modifier. For those of you that do PT billing to Medicare, understand that there are therapy caps. They can be bypassed where you can establish medical necessity, and when you believe you established medical necessity, consistent with the guidance you report the KX modifier.

Unfortunately, what a lot of practices do is they always report the KX modifier, whether it’s necessary or not. The KX modifier is only supposed to be reported in circumstances where you’re going to bypass the therapy cap which is, I believe, somewhere around 1, 500. is what each beneficiary is entitled in terms of physical therapy, maybe higher.

I can’t remember. It doesn’t really matter. But the point is that until you reach that threshold, you shouldn’t report the KX modifier. What you don’t know, however, is whether the patient has ever had physical therapy at another practice, because it is a per patient. cap, not a per provider cap. So for that reason, a lot of practices report it just in case, which is fine, but unfortunately it develops a billing profile where you’re always reporting the KX modifier.

And therefore, it makes you an audit target. To the extent that being an audit target for your PT is not avoidable you want to make sure that you pay particular attention to the documentation content requirements for the initial evaluation, treatment plan, objective measurable goals, progress evaluations as well as your daily treatment notes.

Look at those documentation content standards very critically, make sure you perfectly comply with the content elements. And then the other issue that you need to be mindful of is the certification requirements. So if your physicians are not returning certifications if it’s in house, that shouldn’t be a problem.

But you need to make sure that you have a certification. The initial certification is good for 90 days beyond 90 days, there needs to be a re cert in which case the patient will have to have a visit with the doc, and be cautious about your certifications do not request everything but the kitchen sink.

Request very precise procedures. Therapies, exactly what it is that, that you intend to perform, and if there’s a need to change the therapy prescription, just get another certification. Write up a change to the plan based upon a progress evaluation. Just because they have to be performed at least every 30 days, it means at least.

It doesn’t mean on a 30 day exact. schedule. So you do your progress exams as you need to, especially when you need to change the care plan, because the care has to be certified by the physician. If you ask for everything but the kitchen sink and the physician signs off on it, essentially delegating the decision making as to what therapy to do at what time during the plan of care, that’s not a true certification.

And as a result, because the if the therapist is deciding what’s to be done rather than the physician, then it’s a violation of the certification rules and all the money goes back. Be careful there as well. The other thing I would point out for multidisciplinary practices is DME. There is.

Substantial money, profit margins, and DME items. Medicare understands that, and therefore they very highly audit DME, POS items and supplies. Most notable, LSOs, any type of orthotic, whether it’s wrist, knee. Ankle foot low back any shoulder elbow, any type of orthoses they, they tend to pay particular attention to.

And what you need to make sure you have documented is, a, what’s called a standard written order. But you need to make sure that the diagnoses that you put on the standard written order usually is going to be a diagnosis that’s established in a local coverage determination or local coverage article.

If they list diagnoses that are that support medical necessity, but make sure those diagnoses that you report are actually supported by either objective examination or diagnostic results in the medical record. You can’t just assign a diagnosis from the list and say here they have this and unless you have a good faith basis to report that diagnosis, but It makes it easier to justify if you can point to something in the record that supports the existence of that condition.

So be careful with the pre printed letter of medical necessity forms that have convenient diagnoses to check off that are particular to that type of orthosis. And just make sure that the diagnosis you’re checking, that the patient actually has them, and you have some basis to believe that’s true.

The other thing TENS units I see fewer and fewer TENS unit cases anymore except through DME companies, but when providers are going to prescribe TENS units, remember, At the initiation of care, it’s a rental because the need is relatively short lived and the theory behind prescribing TENS units initially for a patient that’s in significant pain is to provide some measure of pain relief in between encounters until the therapy catches on.

But that rental is likely going to be for a month and that’s it. The other times that you’re going to prescribe a TENS is at the end of care when the patient has unresolved pain and symptoms, medical management has failed, conservative management has failed, and medical management has failed. Maybe the patient doesn’t want to do pain management, long term or chronic pain management and instead they elect it.

For TENS therapy the setup for that is, is that you do a diagnostic application, document the amount of pain relief that the patient gets as a result of use of that equipment the duration of the pain relief and so forth, and then once you’ve established that it’s actually going to work, Then you can prescribe one.

In this case, it would be long term use because remember the patient has unresolvable pain and this is going to be done in lieu of injection pain management. At that point, you’re going to sell the TENS unit and make sure in your order, you define what supplies. So you need to be precise as to what device you’ve prescribed, how many leads it has, where it’s to be applied, how often it’s to be applied, and then throw in the order something having to do with the likely resupply schedule.

And be careful there. There’s no benefit to going nuts on resupplies because there’s a single code for TENS resupplies. Doesn’t matter what you give them. So if you want to give them leads so that they can change leads three times during a therapy session, that’s fine. I don’t, it doesn’t matter.

You’re not going to get paid anymore. Medicare moving to the A4595, which is a TENS resupply code. It’s building units based upon the number of leads of your device. So for a two lead device, you get one unit. For a four lead device, you get two units. But all your supplies go there. Make sure you document that the patient is requesting resupply.

You have to document that request. Tell your patients, when you run out of stuff and you need more, call us. And now, if they never call, that means they’re not using it. And if they do call, then you resupply consistent with the order. Just mind those P’s and Q’s and you should be fine.

And again, it’s not every patient gets a TENS unit. A rental in the beginning, you just prescribe one at the end. It’s make sure you meet. The appropriate criteria. I look at DME like base hits. So everybody with low back pain doesn’t get an LSO or a lumbosacral orthotic. Pick and choose and screen your cases carefully because if you develop a profile where everybody’s getting a certain amount of DME, I guarantee you’re going to get clipped.

Now let’s move on to the straight chiropractic practices. And when I say straight, I don’t mean I’m going to go straight in that context. DC only practices. The big issues there have been pretty consistent, unbundling of massage or manual therapy, massage especially, even manual therapy.

It brings up a number of concerns. One, most payers follow NCCI and believe that it should bundle or it’s a component of the manipulation. They don’t want to pay it separately. Two, when they see More than two units, like three or four units, or four or six units consistently. They have a reasonable suspicion that the massage the patient got was more of a comfort massage than a focal massage to the areas of involvement.

In which case that raises medical necessity concerns. And finally, there’s delegation issues. Some payers have policies that, that that don’t recognize the incident to rule. Expressly when it comes to massage. I ran across that in a Blue Cross policy recently. Others they will recognize it, but the order has to be precise.

So you can’t just refer the patient to a massage therapist. You have to actually order them to do exactly what you want them to do if you need to bill it out under your name and NPI. Big problem in most cases is there’s not an explicit order. The massage therapist is often taking soap notes. It’s clear that the massage therapist is doing the decision making associated with the service, and therefore, it’s not appropriately billed under the doctor’s name and NPI, even if the doctor supervised the service.

So from that perspective, that’s how and it’s a combination of those issues. So even if you solve the delegation problem, you still have the bundling problem. You maybe still have the medical necessity problem. Massage is one of those things you should be doing as a cash service. If you’re used to getting that massage money enjoy it while you can because you might have to be paying a bunch of it back.

Evaluation management services. Recently I’ve seen providers getting clipped where they’re billing day two E& Ms for a report of findings. The mistake they’re making is that they’re not documenting. The visit as a report of findings. Instead, they’re doing their history exam standard soap note. What they should be documenting as patient presents today for a report of findings.

I reviewed the exam results, diagnostic x rays, prognosis, yada, yada, yada, total time of the E& M was whatever. Okay. So that is going to be a an encounter where time drives the encounter. And in that scenario, I think it’s, it, there’s a justifiable argument for billing the E& M separately with 25, but providers are just not documenting right.

They’re sticking to their, whatever EMR format your program is giving you, which is driving you into subjective objective analysis. That’s not the point of the encounter. And for that reason, payers are denying them. And recouping that money. So be careful there. As far as re exams billing E& M’s for re exams, it’s not necessarily a problem, but there’s got to be an evident reason for doing the re exam.

And rather than documenting all of the different exam techniques and tests that you did and whatever, that’s not what drives the bus any more with respect to the E& M, it’s the decision making. So what is more important to document is what that information meant to you in terms of the severity of the patient’s established diagnosis, whether the diagnosis is resolved, whether there’s evidence of a new problem but and then how that change in the patient’s condition then correlated to potentially a change in the plan of care, in terms of the therapy orders, maybe you’re doing different therapies, whatever, but where you establish, the significance of what you found during the re eval and what that meant in terms of the diagnosis and plan of care, that’s how you’re going to sell your re exams.

If you’re just putting re exam at the top of your soap note and it’s the same, essentially subjective objective assessment plan salt note. Maybe with a little more stuff in it, it’s going to get denied. So focus on the decision making, not the findings. I apologize. My phone is making noise.

CMT billing. I recognize that most chiropractors tend to adjust full spine. They bill 98941s because they’re chicken to bill 98942. Recognizing the bill in the highest level code might be problematic, and it is. If you do bill 98942, you use our Frequently then expect to get audited. What you bill for is not necessarily or is not limited to the number of regions you manipulate.

Certainly, if you manipulate five regions, you’re starting with a 98942, but you need to look to the chief complaint. If it’s primarily neck, and that’s what the patient came with you’re going to be able to justify manipulating the neck. The other regions aren’t directly related to the complaint so you can’t bill for those.

And I would argue, you’d be better off not to treat those areas and just wait until you’re You get the neck problem resolved, then you can do maintenance care for cash on all the other regions. Now, what providers do when they hear that is they, the patient comes in, my neck is killing me, and that’s why I called, and that’s why I’m here.

And then the doc says how’s your mid back feel? How’s your low back feel? How’s your ankles, neck, extremities, whatever? And they search for additional areas of care. Air quote, problems that aren’t really problems that cause the patient to come to the office. It’s just, if you’re a certain age, you’re going to have some symptoms there.

But, oh, ding, ding, ding, we got mid back, we got low back and now I’ve documented a rationale for doing three to four regions or five regions. Bottom line, if you cluster code and build four ones all the time, it just looks odd. You should have a pretty diverse profile between maybe 50 percent 4.

0, 45 percent 4. 1, and 5 percent 4. 2, and save your 4. 2s for the initial phase of care when potentially the patient does have five regions of involvement, but understand that some, one of those regions is probably going to drop out relatively quickly, hopefully, and then you’re going to drop to a 4. 1, then eventually to a 4.

0. With the most significant problem resolving last. Unfortunately, I’ve never seen that in, in a chiropractic case. Even though in reality, that’s probably what happens, but, be cautious, turn your brain on and treat the areas that absolutely need to be treated, only bill for the areas that are directly related to the complaint.

And thereby, you will automatically develop a diverse CMT profile and make yourself a much lower audit cost. Identifiable Audit Target. Extremity CMT is often problematic. If you are gonna adjust an extremity, there’s gotta be a source complaint that you gotta document. So if the patient’s got spinal conditions, you need a history of present illness for each region that you’re gonna adjust, or that you plan on doing treatment on.

So if they have neck and low back, I need a neck HPI. History of present illness, I need a low back HPI. And let’s say they got a right knee problem, I need a knee HPI. Thank you. Then I need a neck exam, a low back exam and a knee exam. I need neck diagnoses, low back diagnoses and knee diagnoses.

I need a treatment order for the neck, I need a treatment order for the low back and I need a treatment order for the knee. If you don’t do that and you’re just banging away at extremities expecting the payer to understand why you’re doing it, forget it. They’ll get denied. I got absolutely no.

justification or argument to say that they’re wrong. Make sure if you’re going to do extremities and understand a patient could come with just an extremity condition. I know you’re a chiropractor and you do spinal stuff, but if they don’t have a spinal problem, let it go. Treat their knee or whatever it is.

And you could have extremity only cases in theory. I’ve never seen it, but in theory it could happen just like you have spinal only cases. But pick and choose when you’re going to bill extremities and make sure you document it correctly, otherwise that money’s going back. Finally documentation content.

Remember, for time based therapies, you need to document the time. You need to document your level of contact, for their constant attendance modalities. You’ve got to document the constant attendance was provided necessary for therapeutic procedures that direct one on one contact was provided.

And don’t say it if it isn’t true. If you’re not providing direct one on one, you’ve got to build a group code 97150. Those are, Some fundamental things with respect to manipulation, identify the areas of subluxation in your initial exam, in your treatment order, indicate that you’re going to manipulate X, Y, Z, whatever regions in the areas of noted subluxation, and then subsequently just say manipulation was performed to whatever regions in the areas of noted subluxation.

Period. That’s critical. Unfortunately, some docs, they identify the subluxations, they never make an express treatment statement where it just says manipulation, but it doesn’t say where and payer’s key on that. And I think it’s obvious, or should be obvious, where you did your manipulation, but if it doesn’t say it, at least identify the regions, then it’s going to get denied.

Other things that, that trip people up in post payment review is. Payers have policies especially where you’re contracting and agreed to follow those policies. And those policies oftentimes have mandatory documentation content rules. Make sure you follow them. Medicare has them and they’re very explicit.

And if you’re missing a single thing that is often the justification for a denial as crazy as that sounds, but that’s just the way non clinical people evaluate medical necessity as if filling in the blanks made the care medically necessary or not. But if you don’t fill in the blanks, it’ll certainly get denied.

That’s all we have time for today. I hope that was helpful. I apologize for it being a little Shotgunned at you fast and furious, but hopefully that gives you some help minimizes your likelihood of getting an audit. And hopefully you’ll never have to call somebody like me to help you with one of those circumstances.

So until next time, thanks, and I hope you enjoyed it.


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