Blog, Chirosecure Live Event January 22, 2024

Chiropractic Malpractice Insurance – Record Requests-The Do’s and Don’ts

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Hello everyone and welcome to 2024. My name is Michael Miscoe with Miscoe Health Law and this is another installment of Chiro Secure’s Growth Without Risk podcast. And today we’re gonna talk about record requests. I haven’t done this topic in a while, and couple cases over the past few months have come in and suggested that I should probably redo this topic just to make sure everybody’s up to speed on how to handle record requests.

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Make sure that you train your staff and everybody is aware so that when these things occur, you know how to handle them and do it the right way. ’cause unfortunately if you handle it wrong. Send records when you don’t need to send records. You’re not supposed to. Not only are there HIPAA considerations, but sometimes it’s a little difficult to get that horse back in the barn anyway.

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So let’s start. You get a letter in the mail or a phone call and someone is calling to look requesting patient record information. Now, if it’s a phone call you need to be very cautious ’cause you have no idea who’s on the other end of the phone really. And any. Phone call requests for records.

Unless it’s your state board or the Department of Justice or something like that. And even then, ask them to follow up with a written request. But all requests should be in writing. So that you can validate who they’re from and where you’re supposed to be sending the records to and your HIPAA privacy and security policies and procedures should address that.

So hopefully this is nothing new and nothing but a reminder, but even patients asking for records over the phone. Document the call, but ask them to make a written request because it could be somebody posing as the patient. You never know, and you don’t want to get into a situation where you’re inappropriately disclosing patient record information.

So now moving away from the phone call request down to the written request. Let’s say you have a written request. The first thing that we need to evaluate or that your staff needs to evaluate and make sure your, you tell your staff any record requests. Make sure they bring them to your attention.

Okay. Too many times staff handle record requests thinking it’s just something routine, don’t tell the doctor and unfortunately they don’t respond appropriately or with sufficient or correct information. And next thing you know there is a massive refund demand. And then we have to go through the process of supplementing and getting them to change their mind, and it’s very difficult.

Those things are better handled right away. So let’s make sure your staff understands that when record requests come in, that you’re alerted so you have the opportunity to evaluate them. And in that analysis, we wanna look at a couple of things. One, who is it from? Okay. So if it’s from an insurance carrier, next question is, do you participate with them?

Because if you do not and, we have to look at whether you have any legal duty to res respond or not and how we should respond. The other, the second component is look at the patients and or dates of service that they’re requesting records for, have they been paid for? If those services have been paid for and you’re not participating, it’s gonna change significantly how we respond to that or how you should respond to that.

And that is a circumstance where you’d want to engage counsel right away because there are legal defenses that you can raise to get that request and that audit shut down. Which brings up a good point. Most record requests are about services that you’ve already been paid for. Certainly if you get a request for a service that is pending, then certainly you’re gonna send that information.

But even then, you need to make sure that you send sufficient information so that they can evaluate the compensability of the claim. And that will include medical necessity, which may mean they may be looking, requesting information about a particular date of service, but you may need to.

Provide additional information, such as the initial evaluation in plan of care, any recent progress evaluation so that they can place this visit in the context of what is hopefully a deliberate plan of care and not just ongoing, never ending care which is likely to be denied is medically unnecessary.

Respect to your participating status. If you’re participating, you usually have an obligation. To submit those records and cooperate with their post-payment audit efforts. You certainly wanna look at your contract at this point in time. So hopefully you have those stored someplace where you can find them.

But look at your contractual liabilities regarding post-payment audits, their ability to recoup out of current claims, so forth and so on. And even then. If it is a post-payment, record request, get help have somebody evaluate the records in comparison to the payer’s medical policies. If there’s information that is missing that would generate an error.

There are legal ways. Emphasize the word legal ways to amend and or supplement your records. You don’t wanna do that wrong, and this is one of the big don’t associated with record requests. Don’t in the. I can’t emphasize this more strongly. Do not, don’t even think about it. Modify your records, okay?

Because you have taken something that is an administrative overpayment issue and turned it into a federal crime. I. Okay. And unfortunately I have seen doctors make that mistake, some even innocently. And it has led to rather substantial litigation legal fees over something that would’ve been a simple overpayment thing that could have been negotiated out.

But if you modify your records in any way. Without dis appropriate disclosure. And there’s a process by which you can amend your records. There’s a process by which you can supplement your records, get legal help before you even think about doing that. Because even if there are errors in your documentation, there are ways to correct them without violating the law and the process.

Whatever you don’t think. You’re smarter than they are, and you can go into your EMR system and fix this stuff and tune it all up and make everything right. And they’re not gonna know because it is amazing how they have ways of finding out. And even if they suspect it and they pull your metadata, that will certainly disclose it.

And there is a Title 18 crime called false Statements related to a healthcare matter. You do not wanna, tread across that line. The better course of action is to engage counsel early who’s familiar with these issues that can walk you through the process of identifying what needs to be amended, how to amend it if you’re missing signatures, how to address that issue so that you can avoid some of the easy layup errors that a payer will allege in the initial phase of the review.

Some other HIPAA issues is that I need to address is that once we identify that we have an obligation to send, then we have to determine what we’re gonna send. And unfortunately, most record requests that I see don’t actually allow you to comply with hipaa. And there’s a challenge that you can raise early.

It’s a strategy on, in part, for buying a little bit of time and more accurately so that you can meet your obligations under what’s known as the minimum necessary disclosure rule of hipaa under that rule. You cannot rely on a payer’s request as meeting your obligations under the rule prior to the High Tech amendments you could.

Currently, however, a payer has to identify what they specifically need and why they need it. They have to disclose the purpose of their audit. So when they’re asking for the complete chart with all this stuff there’s no way you can disclose that. And you would be foolish if you did. They, so if they’re doing a coding audit then your treatment notes would be appropriate if they’re trying to determine whether the patient was there or not.

All you need then potentially is the sign in sheet if you have such a thing. So depending on the purpose of the request, we’ll modulate how much information we, we disclose. And one of the key elements of HIPAA is that we disclose the minimum amount of information necessary to meet the objectives of their audit.

And payers hate to commit to a purpose of an. And when they don’t, technically you can’t send the records. And this is an argument that you’re not gonna make on your own. Again, this is where you get legal help. But usually with most payers that are, they’re responsible they understand the issue, they’ll freely disclose what they’re looking for.

Maybe they’re looking at coding, medical necessity and maybe the and as soon as you throw medical necessity into the MI mix, we’re gonna disclose dates that are outside the request, potentially if they’re looking at individual service dates, because to establish the medical necessity of that one visit, we’re gonna have to provide them the initial eval, the diagnosis plan of care maybe some of the notes leading up to that visit to include progress evaluations, if there were any to help the payer understand how the patient was responding to care at the visit in question. So there, in that scenario, when they disclose that medical necessities part of their purpose, we would end up disclosing more information than there may be even requesting because they need that information to make that determination.

Analysis of the request. If it doesn’t have a purpose again, that’s an I think you should always get counsel involved when you get a request to help you through this analysis to make sure you do this right the first time. Because sometimes you have one administrative appeal step before you get into more expensive appeals like arbitration.

So you definitely want to eliminate. All the simple issues, as many as you can prior to the record submission. As far as the mechanics of how you prepare your records too often providers don’t provide sufficient oversight of their staff, and they have no idea what was sent in. And they so the staff just took care of things and the doc didn’t wanna be bothered with it, bad idea, in which case we don’t know what was sent.

You can’t give us a copy of what you sent, and therefore it’s difficult for us to determine, did the payer have these, a particular record? Did they not have it? And it ends up meaning that you’re gonna have to recompile all those records again, maybe additional records, and they’re gonna have to be resubmitted.

In order to avoid duplicate work, if you get help with record prep, you, whoever’s helping you should help you build one record example, make sure it’s tight, all the addendums, attestations, whatever else is needed. Supplements is put together correctly, then it’s scanned, and then you prepare all the other records the same way.

And we keep a electronic copy of exactly what you sent them so that once a an audit result comes down. We can compare their findings with what they looked at to determine did they make an error in evaluating the record, was a record missing in which case when we appeal, we know whether we need to produce a an exhibit with additional records for them to consider.

Otherwise, you’re the expert analysis gonna be focused on this is what you overlooked in the record that you already had. When we don’t know what they have, it makes the appeal process a lot more difficult. The other thing about record preparation. Do a good job, okay. Don’t, you don’t wanna make the auditor’s job on the payer side harder than it needs to be.

So if your records are a mess. They’re not gonna find it, they’re not gonna waste time and try to sort it out. So you want to produce your records in ascending date order in the sequence of where things happened. If you have different notes, you’re gonna try to if you have say a travel card for coordination of your treatment, that’s fine.

That would usually go at the end. But your initial evaluation progress or eval soap notes, those should all be in order and make sure that they’re in, they’re neat, they’re readable. If you have handwritten documentation you want to transcribe it. I know it’s a pain, but, and it needs to be transcribed.

Exactly. But if they can’t read what you’ve written, you might as well not have written anything at all. If you, if you’ll need to make sure that your records are signed, if they aren’t signed already. If you didn’t sign them when you wrote the note, you’ll have to do after the fax signatures.

Make sure you date them, and then we’ll prepare an attest, help you prepare an attestation to explain why the record was signed after the fact. And that happens a lot of times in EMR programs where the doc doesn’t either, doesn’t close the note and sign off on it. Or doesn’t have the capacity to do that, and they can only print the notes when they’re signed.

It’s not a big problem that they’re not signed. Just remember that the notes have to be signed because that would be a basis for a payer to, to declare error. It’s technically not a legitimate basis to declare error, but they’ll do it anyway. And then we’ll have to fix that with attestations and I’d rather solve that problem up front.

Then have to deal with it as part of an appeal. So that’s about all we have time for today. Hopefully that gets you oriented. Record requests are important. They need to be paid attention to. Definitely not something unless you have highly trained staff that you turn this over to your staff and hope they get it right.

Get counsel involved early especially for the analysis of. You’re participating, your legal obligations in terms of responding both under either a participating contract or if no participating contract exists. Who can advise you as to how you can either resist the audit or not?

And the potential. Side effects of that and where you have a legal duty to supply the records then helping you put that package together, doing it the right way. Certainly so we’re not committing any crimes with alteration or things of that nature, obstruction. And then one final point, there’s a couple of record requests that you cannot ignore.

And these are ones where the HIPAA issues do not arise, and those are record requests required by law. So if you get a request from your state licensure board a civil investigative demand from the Department of Justice, a request subpoena from the OIG a, those are definite call counsel immediately type scenarios.

But those. There’s no HIPAA issues. They’re gonna get what they’re gonna get because HIPAA has an exception for disclosures required by law. So hopefully that helps take some of the concerns that you may have about record requests at least gives you a process that you can go through and know that there’s help out there available to you.

And hopefully if you do it it’ll mitigate some of the negativity that often follows those requests in terms of a post-payment audit result, and refund demand. Thanks again and we’ll see you next time.



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