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Hi everyone, this is Michael Miscoe again with Miscoe Health Law. And today we’re gonna talk about responding to record requests. This is the second part of a three part installment, and this is on behalf of ChiroSecure, of course, and their growth without risk. Seminar series. So today we’re gonna spend a little bit more time with dealing with written record requests.
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And if you remember from last time, the first thing that you want to do is actually read the request and identify a who it’s from and what your relationship with the who it’s from is. And we, if you remember, we talked about the implications of when you participate and when you don’t. When you don’t participate with a particular payer as assuming that they’re not a government payer like Medicare or Medicaid you may not have any legal duty to respond at all.
And in those scenarios, there are a number of legal defenses that we can apply to either a, get the record request shut down, or. B if you foolishly already sent the records and there’s a refund demand, objections to the payer’s ability to ever on that and tell you how that works in practice. Some of the considerations that you have to think about if you don’t participate and you elect not to send the records. A couple of things might happen. Either the payer will understand our objections, which you know, we will raise the HIPAA objections note without question, and then also raise objections under what’s known.
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It’s a common law doctrine in all 50 states. It operates a little differently state to state, but it’s called a voluntary payment doctrine. And essentially what that means is that you submit a claim as a non-par doc, your responsibility is to bill for what you did. You make no real representation about medical necessity because you have no contractual duty to understand what that means to that particular payer.
Essentially you’re representing that the services are clinically appropriate for the patient’s condition and that you’re essentially, following standard established standards of care, whatever those are in the implementation of treatment on behalf of this patient. But whether you make no representations that you’re following their internal medical policies because you have no legal duty to know what they are.
You don’t participate when you sign a contract with a payer. Certainly you are signing up to comply with all of those things whether you know it or not. So you know from that perspective, under the voluntary payment doctrine, when you submit a claim, the payer has the. Opportunity and I would argue the obligation to validate whether the care that you provide is actually a benefit and medically necessary, which is to say those two components, whether the care is covered under the terms of their benefit plan, and they’re the only ones that have the data to do that.
From that perspective, when they do not endeavor to conduct that analysis they pay the claim with constructive knowledge of the facts, meaning the purpose of the treatment and so forth. And, usually the law prohibits them from recovering the money if they find out later that the service wasn’t covered or, take a simple example.
Let’s say they pay a claim on somebody who it turns out doesn’t have insurance or their insurance elapsed. If you’re participating, they can come back and. Collect that money back if you’re non-par, they can’t. So that’s how the voluntary payment doctrine works. And when you put a payer on notice of that particular defense, they will either go away in which case, yay, we shut the audit down and we move on.org.
Or they will ignore it and they will deem an overpayment because you didn’t submit the records and attempt to collect that money out of future claims. Which then puts you in the position of either moving to non-covered services for cash or allowing them to recoup that money from your future claims or going to court and getting an injunction to get it stopped.
The objection to the request. If it’s vested only in hipaa, that’s legitimate. And, when you get that worked out, maybe you’ll eventually send the records. And if you and we are confident that your records are tight maybe we go ahead and submit the records.
If your records, and the character of the treatment. Is something that we know they’re gonna object to, or there’s, issues of unbundling or code pairings that we know that they’re gonna object to. Then we start looking at how do we resist the production and so forth.
Now with commercial payers, that’s an option. If it’s Medicare, that’s not an option. You have a statutory obligation to submit the records. If you don’t all kind of horrible things can happen. You can be fined, you can be put on the preclusion list, basically debarred from the Medicare program. Not the same as being excluded, but basically they revoke your billing privileges.
Which means you cannot render covered services to Medicare beneficiaries. And if you went through my last three part program, that’s not necessarily a horrible thing. So just, understanding who the requester is. Now, there are certain classes of requesters where HIPAA issues and the. Option to disclose or not are off the table.
And the first one is your licensure board. If they issue a, a subpoena based upon probable cause and require you to submit records. You’re submitting those records and you’re submitting everything that they asked for. Whether there’s no HIPAA issue because that is a submission that’s required by law.
So the minimum necessary disclosure rule doesn’t apply there. A law enforcement request. Okay? And these come in one of two forms. You get a civil investigative demand, which you’ll get that. In writing in the mail in which case you call counsel immediately for assistance in how to respond, or they come on site with guns in yellow tape and you’re giving up whatever they want because they have guns.
But from a legal perspective, they would have a search warrant. And the only thing that you can do is validate that they’re in the right place. And then you can assist them with locating the materials that are the subject of the search warrant. They’re not allowed to take anything that’s outside the scope of the warrant, but they’re law enforcement.
You don’t fight with ’em. You cooperate If they see something that they’re not supposed to seize. At the time they’re executing a search warrant is not the time to address that issue. That’ll be addressed later by counsel. And those materials or information would not be introducible in court because they didn’t have a proper warrant to seize those materials or authority to seize those materials.
Finally, there is you’ll see this happen in personal injury work comp cases where you will get. What’s called a subpoena. Duchess Tecum. Basically what that means is it’s a subpoena to present yourself at a certain place in time with whatever records have been requested. Usually you mail them, you don’t actually have to go there.
That’s not the expectation, but those you have to watch out for because sometimes these air quote subpoenas can be issued by opposing counsel. They are not court orders. So you treat those like any other written request insofar as. HIPAA authorization in terms of both that it is an authorized disclosure, number one, and that is a disclosure consistent with the minimum necessary disclosure rule.
Now, if you have a subpoena that is actually signed by a judge, that’s an order of the court and that you have to comply with because that is a disclosure required by law. So as you can see, there are. Of written requests that you might receive. And it’s critical to understand who it’s from, what your relationship is with that entity and validating what your legal obligation is relative to disclosure.
And in many cases, it is well worth it to contact legal counsel for assistance unless you are really sure. That you have this process understood and you have some experience with it. And then of course as you prepare your disclosure. You need to make sure that you’re complying with the minimum necessary disclosure requirements of hipaa and that any additional materials that you provide, let’s say for example, you see an error in a note.
There are established ways to make corrections to your notes either in the original document. Through strike through, you put the correct information, you sign and date it, or you do it through addendum, where you draft a separate document and explain what’s going on.
Some common addendums that get done, let’s say you have an EMR program that doesn’t permit electronic signature. You have to wet sign, but you can only do that when you print the notes. So when you’re signing the record after the fact, of course, date, your signature. But you might consider a global addendum to explain why you signed the notes two years later.
Some other addendums is, maybe you have some abbreviations that are not commonly gonna be understood. So you do a global addendum that basically has a glossary of your shorthand and what it means if you have handwritten notes. You may consider transcription, but understand your transcription has to be exact.
You can’t, expound, you can only say what’s there, and then you would use another addendum if you wanted to explain what that meant. But if you’re passing something off as a transcription, it has to be exact to include acronyms and abbreviations and all of that. And again, getting help with this process is critical if you are gonna disclose one last thing a.
Don’t alter your notes. Okay. That’ll get you, that’ll take a simple overpayment case and turn it into a criminal case in a heartbeat. And it’ll make the defense way more expensive and the potential damage much more significant. Finally save a copy of what you send.
Now if you’re working with counsel, they’ll make you do that anyway, but if you decide you can handle this on your own not necessarily recommended in many cases, but if you just, that’s what you come to the conclusion of. Make sure you keep a copy of what you sent so that when this gets out of what you believe you can handle on your own, you need to get counsel involved, then they know what you sent. If we need to produce additional records, we can now sort out, okay, this is what they have, this is what’s different. So that it’s less confusing for the payer. That’s all we have time for for session two here. Please be sure to check out session three where we’re gonna get into a little bit more detail with preparing your submission.
We will see you next time.
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