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Hi everyone, this is Michael Miscoe presenting for Miscoe Health Law, presenting this week’s Growth Without Risk series for ChiroSecure. And today we’ve talked about this before, but I’m, I think we need to talk about it again just because of some calls I’ve gotten recently from providers and it’s our title is Debunking the Medicare Billing Myth.
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Unfortunately, many providers still believe that if they treat Medicare patients, they have to submit a claim to Medicare. And while that’s potentially true, it is certainly not always true. And I want to walk you through what Medicare statutory billing obligations actually are, where they come from, and go through some of the requirements in the Benefit Policy Manual to demonstrate when specifically you’re required to bill and if you’re looking to get away from it.
An obligation to bill Medicare. It’s actually very doable. And it’ll allow you to treat Medicare patients profitably. Fundamentally 30 years of defending providers in Medicare post payment audits have taught me that. To comply with Medicare’s technical documentation content requirements especially the ones that aren’t actually in their documentation guidance in the Benefit Policy Manual specifically objective measurable goals making sure that you’re hitting all of the initial and subsequent visits requirements.
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Content elements. If you miss one the service will be denied and it’s very difficult to convince a judge that that missing information wasn’t relevant to a determination of necessity. So to do all of that. For the limited amount of money that Medicare pays, the service, you just cannot render services profitably.
So many providers are looking to avoid any obligation to bill Medicare. And it’s actually pretty simple. Let’s start with a statute. Feel free to write this down, go look it up, but if you look in the Social Security Act at 42 U. S. C., Section 1395, W 4, Subsection G, Subsection 4, Subsection little a, and the G is a little g you will find that your obligation to bill Medicare is only a little g.
only extends to services for which payment may be made under this part. And what it’s saying there is that if Medicare has no statutory payment obligations for a service, then there’s no obligation to bill it. And oh, by the way, W 4 subsection G, that’s where the limiting fee provisions come into play.
Those provisions do not apply to non covered services. So you can charge the patient whatever you want. And interestingly, Medicare charges its beneficiaries with knowledge of Medicare statutory coverage obligations. They require additional notice to the patient when the reason for non coverage is medical necessity, and we’ll talk about that in a second.
What does Medicare cover? It covers manual, When performed by a licensed doctor or chiropractic let’s make it more specific. So when you look at the definition of a physician at 42 U. S. C. section 1395X subparagraph R, that’s a little r, you’ll see chiropractors are defined as physicians for purposes of the Social Security Act only when performing manual manipulation of the spine.
You perform any other service other than manual manipulation. It’s never going to be statutorily covered. You don’t have an obligation to bill, and you can charge a patient your usual and customary fee if you like. You can reduce your fees to the Medicare allowance, even though Medicare won’t pay you.
They still have an allowance for most services. That’s your call, but you have no obligation. Obligation to bill Medicare for a service that is not statutorily covered. Now, I don’t want to ruffle anybody’s feathers, but we need to differentiate a term that is commonly used and it’s a term called an adjustment.
Now, Medicare might cover an adjustment. It might not. It depends on what you do or what you accomplish with your adjustment. We know that the statute is very clear that it covers manual manipulation of the spine, and if you look to the Medicare Benefit Policy Manual, you will find that they interpret that to mean manipulation performed with a manually controlled instrument.
But you don’t get any extra payment for the use of the instrument. The point being, they don’t cover instrument adjusting, they cover manipulation performed with a manually controlled instrument or with your hands. So the question is, what is manipulation? Now, there is a current and new, interestingly enough, PubMed definition of manipulation, which essentially boils down to it is a procedure that causes cavitation of a joint.
Technically, if you’re doing a low force technique or a technique that does not cause cavitation of the joint, you have not performed manipulation. And interestingly enough I predicted years ago that maybe someday Medicare would figure out that not all chiropractic techniques are necessarily manipulation on a case by case basis.
I have actually seen two cases. In the last round of Medicare audits on chiropractors, where the contractor argued that the provider did not perform manipulation and therefore was not entitled to coverage. Understand that manipulation is a technically defined term. It’s recognized in CPT. The CPT coding system does not recognize the term adjustment.
You need to be precise about the technique that you’re performing. And if you’re not, Performing a manipulation, meaning causing cavitation of the joint then You have absolutely no obligation to bill Medicare. And interestingly enough, because the coverage exclusion is statutory, as opposed to for reasons of medical necessity, as we’ll find out in a moment, you don’t need an ABN in that circumstance.
There are some forms that I do recommend you do just to make sure that the patient has noticed that they’re getting something that isn’t covered by Medicare and they have to pay for it. Medicare used to have a form called a Notice of Exclusion of Medicare Benefits. I’ve tuned one of those up to address the circumstance to specifically identify non manipulative forms of adjusting as a service that Medicare statutorily excludes from coverage when performed by a chiropractor, similar to electric stim, evaluation management services, x rays and other therapeutic procedures and modalities.
That is your easiest out. From Medicare, you have to notify the patient once and you’re done. Now, if you’re performing manipulation, we know that the manipulation has to be for subluxation of the spine defined by part exam or x ray. You have an out there and it has to be medically necessary, meaning you have to have There has to be an associated neuromusculoskeletal condition and an expectation of causing significant improvement in the patient’s condition or capacity to function in a reasonable and generally predictable period of time.
Those are requirements from Section 240. 1. 3 of the Medicare Benefit Policy Manual. When any of those criteria do not exist, then The manipulation is not going to be covered, but the reason is going to be medical necessity. And when medical necessity is the reason for non coverage, it is also a statutory exclusion from coverage.
You’ll find that at 42 U. S. C. section 1395, Y, subparagraph little A, subparagraph 1, subparagraph big A. That is the standard exclusion for medically unnecessary services in the Social Security Act. But when that is the reason for non coverage, that is where Medicare creates this requirement for an advanced beneficiary notice.
They have an actual form. There’s a new one out, so if you haven’t updated your ABN in a while you need to get the new form. And Like the old form, this one has three options. Option one means the patient understands the service isn’t necessary. They want you to bill Medicare anyway. Complete waste of time.
If you elected to allow that to happen or elected to provide the service under those circumstances, you would bill the service your 989401 or 989402 as appropriate without the AT modifier, but with a GA modifier. And on the EOB, it will be denied and, but it will deny with a PR code, meaning patient responsibility, as opposed to a CO code, meaning you’re not allowed to bill the patient.
Meaning contractual obligation, in which case you’d have to write the service off. So with an ABN, option two, The patient understands the service isn’t medically necessary, but indicates that they don’t want you to bill it, understanding that they have no appeal rights. And that is the option that you would want the patient to select.
Option three, of course, is they understand service isn’t medically necessary, and they’re going to decline receipt of the service. Now, the reason for ABN option two, and Medicare will instruct that you cannot influence the patient’s choice of Option 1, Option 2, or Option 3. They have to pick that on their own, so it can’t be pre checked on the form.
However, you are permitted to advise the patient that you can pick whatever option you want, but if you pick anything other than Option 2, this visit isn’t going to happen. And the reason is the administrative expense associated with billing. It’s just a throwaway cost. It’s for sure going to result in a denial.
And because of that, To pay your staff a clearinghouse, post the EOB, and then try to go collect money from the patient, which is the appropriate time when you elect a bill, you can ask the patient to pay for it upfront, but they don’t have to. They can require you to send them a statement once the EOB comes down assigning their liability, and now you have AR, and that again, you’re not going to collect all of it.
And that becomes. a profit killer, not to mention all the administrative expense and submitting a bill that you know is going to be denied for payment. So many practices that I consult with option two is the only option and they gladly send patients to other providers, who are willing to bill Medicare, but I can tell you that billing Medicare It just, it’s not a profitable thing.
Even if you’re trying to do medically necessary care and do all the documentation, praying to God the patient actually has a significant enough problem to justify a medically necessary course of care and is actually going to show up for it. But the documentation burden is so brutal, you cannot make money at Medicare.
And so the call that I was alluding to earlier was a doc Looking for a way to treat Medicare patients because he was of the belief that he had to bill and he didn’t want a bill. So when his patients turned 65 and got Medicare Part B, he sent him down the road. And you don’t have to do that.
There are other options. Now with the manipulation ABN option 1 or option 2 scenario, understand that if the patient calls Medicare and inquires as to why Medicare won’t pay for their care. Medicare will pull the records, pull the ABN, declare or deem that the ABN did not provide the patient sufficient notice of their obligation to pay, and they will make you refund the money, which is a real kick in the teeth.
It doesn’t happen often, but if a patient calls Medicare, it’s gonna happen and you’ll be. Doing that care for free. The other myth about ABNs is that you can do one ABN at the beginning of the year for the whole year. And the answer to that is maybe. If the ABN specifically identifies the number of visits and the out of pocket cost to the penny, then yes, maybe you can get away with that.
The problem is though, if the patient misses a visit or anything happens to destroy the validity of the planned number of visits or planned out of pocket expense. You have to do a new ABN. People forget to do that. Their ABNs are deemed invalid. So it’s recommended that you do an ABN each and every time the patient shows up.
And to accomplish that I hijacked their ABN and on the back of it, put 24 more slots with each of the options by letter. Medicare. probably will not permit that, but they would likely not impose a punitive sanction for failing to get an ABN and charging the patient the sanctions a thousand bucks and it’s in 1395 W 4.
So you want to do your best to make sure that the patients know we have other forms that we implement as well. But Getting back to the core point is that we don’t have to bill Medicare just because a patient showed up. There are many, there are a variety of ways to avoid that obligation and it allows you to treat Medicare patients a little more profitably and at your UCR fee.
I have a number of providers, they see their Medicare patients and they charge 55 bucks a visit. And if the patient doesn’t want to pay it. They can take the train, go somewhere else, but you have to value what it, what your service is worth. And if the patients agree, they pay and those patients that value what you do tend to be better referral sources.
One other thing I would say, relative to manipulation for some of you that, that. Traditionally due manipulation or are looking for a reason to not do manipulation. The Medicare Benefit Policy Manual comes with some outs. If you look at Pub 100 2, Chapter 15, Section 240 specifically 240. 1.
3b they have, they list a number of relative and absolute contraindications to manipulation. And that means according to Medicare, if there’s an absolute contraindication, manipulation is not going to be covered where that contraindicating condition exists. For a relative contraindication, you have to specifically address why you think manipulation is appropriate and safe notwithstanding that relative contraindication.
So the relative contraindications are articular hypermobility. and circumstances where the stability of the joint is uncertain, severe demineralization of the bone, benign bone tumors in the spine, bleeding disorders and use of anticoagulant therapy, and radiculopathy with progressive neurologic signs.
So when those scenarios exist, they consider those relative contraindications, which means you can still manipulate. However, you have to specifically address the risk issue in your documentation. And if you don’t, the service is not going to be covered. You can use those to explain to a patient that you’ve maybe treated one way for a long time as to why, now that they’re Medicare you have to change your technique to something that it, that doesn’t technically qualify as manipulation and is not covered.
Now, absolute contraindications, meaning you are They’re not going to tell you can’t do manipulation, but if you do, it’s absolutely not going to be covered. Acute Arthropathies, characterized by acute inflammation and ligamentous laxity. Rheumatoid Arthritis, Ankylosing Spondylitis, acute fractures and dislocations, or healed fractures with signs of instability.
Unstable O. S. odontium, malignancies that involve the vertebral column, infection of bones or joints of the vertebral column, signs and symptoms of myelopathy or cauda equina syndrome, for cervical manipulation, VBI insufficiency, and any significant major artery aneurysm near the proposed site of manipulation.
So in those scenarios, Medicare instructs that you cannot manipulate, and if you do, it’s not covered. You might want to discuss those scenarios with your malpractice carrier, too, because they’d probably agree that you probably shouldn’t be doing dynamic HVLA thrusts of people with those conditions.
Long story short, there’s A number of ways to avoid billing Medicare, such that you can have a vibrant Medicare patient population that still earns you a reasonable profit. If you’re going to ride on the Medicare hamster wheel, make sure your documentation is perfect. Study 240. 1. 2 and the Medicare Benefit Policy Manual very carefully, both on the initial visit.
When they say you need all eight HPI elements for each region, you need them all. If you miss one, I’ve seen judges say, hey, you missed modifying factors. It’s not there. You lose. That’s how crazy it is. Some other things on the treatment plan side, they have combined specific goals, and understand it says a treatment plan should include they’ve read, they read should as must even though that’s not what it says.
And they take. It’s frequency, duration, specific goals, and objective measures to evaluate treatment effectiveness. That’s what’s in the guidance. They take the last two elements, specific goals and objective measures, and they combine them to create a different requirement called objective measurable goals, meaning they need to see quantifiable evidence of improvement.
And for a patient without a range of motion problem, that’s a little difficult. There are ways to get around this. I could certainly teach you, but the amount of time it takes to write a treatment plan in the hopes that the patient’s actually going to show up and comply with it. And the reality is, your Medicare patients, some of them are frequent flyers.
They’re one and done’s, two and done’s. They come in, when they’re, They have mild upsets. Those aren’t the significant kind of health problems that Medicare is intended to cover. A great majority, and there was an OIG study that confirmed this, but they found that 93 percent of the services that chiropractors were billing to Medicare were not intended to be covered.
to be covered or weren’t medically necessary. And while you think of medical necessity in clinical terms, when you think about it in terms of their standards of necessity, a significant health problem, significant improvement, conditioning capacity to function, and how you measure that and document it, it’s just, it’s very difficult and it’s extremely time consuming.
And if you have. A relatively busy Medicare practice, I assure you, you cannot make money and comply with their rules at the same time. From that perspective, many providers are looking for an out, don’t believe they have one, and they turn Medicare patients away and you don’t need to do that.
Normally, this The training is about an hour to 75 minutes. We go through the forms and all that other stuff, but I just want you to understand that if you look into the rules, if you need form support, contact me, I’d be happy to send them to you. If you need help with implementation, we can help you there as well.
And I’m not trying to turn this into a sales pitch, but at the end of the day, you can treat Medicare patients profitably for cash same way that you can commercial insurance payers, and the practices that have made that transition are very happy, they’re profitable, and They don’t have the postpayment risk and coming from a guy who makes his living defending providers in postpayment audits I should be the last person telling you this but for your own salvation and Not having to look over your shoulder and keeping your relationship between you and the patient Offloading a bunch of administrative costs as well as postpayment risk It seems to be that in today’s environment Especially with the increasing deductibles and co insurance obligations, diminishing reimbursement and or diminishing authorizations for treatment, cash is becoming king again.
So I hope that’s helpful to you and I’ll look forward to speaking with you next time.
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