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Hi everyone. This is Michael Miscoe with Miscoe Health Law with the third installment of our presentation series on responding to record requests in part one and part two. We talked about some HIPAA considerations. We’ve talked about various types of written requests as well as onsite requests by law enforcement pursuant to a warrant and the basics of how.
Don’t miss Part 1 here.
Don’t miss Part 2 here.
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You’re gonna react to that in this final installment, we’re gonna get into a little bit more detail about putting your record package together in a scenario where you have an obligation to disclose records and I’m focusing more in this scenario on commercial payer request for records as part of a post-payment audit.
Now. As a starting point, understand that they don’t do these audits randomly. Okay? So they don’t throw darts at a wall or they don’t draw a number and then go into their provider database with everybody in alphabetical order and say, Hey, it’s your turn to be audited. It’s not how it happens. In today’s environment and put about the past 10 years, data analytics are used to identify billing patterns that.
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Are suggestive of potential overpayments. Understand that now they have ai assisting this analytical effort such that payers can be much more timely in identifying aberrant billing trends such that I anticipate that, especially because of lookback laws which are restrictions on how far back a payer can go absent fraud, waste, and.
That payers are gonna be a lot more timely in identifying problems, which you know, is bad from the standpoint that there might be more audits. It’s good because it will limit the scope of the overpayment period potentially. And. Give you a, an opportunity to enact corrective action more timely, such that we’re not talking about several years worth of an issue.
And therefore a very large amount of money. In other presentations, we talk about some of the common things that payers look for just to quickly review certain code payers manipulation and manual therapy. You’re just begging to get audited manipulation in an extremity manipulation all the time, or a very high percentage of the time, again, begging to get audited, doing both begging to get audited.
Too many and M’s. Evaluation management services 9 9 2 1 2 through 2 0 5. Especially the Vals 2 1 2 through 2 1 5. That is, something that payers look for. Too many services on a visit visit frequency, less than one visit per week on average per. When they calculate it per patient those are indicative of maintenance or palliative care.
So just understand there’s a bunch of ways that they look at data number of visits for, based upon your diagnosis. So if you’re diagnosing a symptom and subluxation or joint dysfunction understand that when you’re going. A, it makes your care look palliative. So that would be absolutely somebody I’d wanna audit.
But especially when you’re trying to justify 10, 20 visits for neck pain it just doesn’t appear rational where it maybe the patient really has, a facet syndrome and cervical irreg. Neuritis, radiculitis, and then maybe it makes more sense. Those are things that payers look for, but when you get tapped and it, it becomes either necessary or it’s deemed to be prudent to go ahead and submit the records.
We have to think about. How we’re gonna put this together, and you’ll recall we have a minimum necessary disclosure requirement, but that doesn’t necessarily mean that we’re only gonna disclose what they’re asking for. Let’s say we determine that correct. Coding and medical necessity are issues that the payer is concerned about or more in more general terms, policy compliance.
And that means every issue is on the table. So even if they’re asking for a single visit. We are potentially gonna disclose a lot more than that single visit. And the reason is this, if medical necessity is on the table and I pull a visit out of the middle of a plan of care under the premise that you’re actually on a plan of care.
And hopefully you are. It’s like trying to read, a page out of the middle of a book and have. And then being expected to understand what the book is about it just can’t be done. So we’re gonna go backwards to the initial evaluation for the problems addressed on that date. We’re gonna pick up interim evaluations, which hopefully demonstrate progress so that we can put this one visit that they’re interested in the context of these other visits.
And, get assistance with analysis. Once you get your records together, it’s a good idea to have them reviewed by an expert ahead of time, to point out any obvious things, especially if that expert has ex experience with that particular payer. Things that you know that they’re looking for whether it’s part of the policy or not.
And to the extent that any supplementation through addendum. Properly constructed, of course, meaning it’ll be dated as of the date that addendum was created. We will explain why we are creating this addendum and what additional information that we want the payer to consider. And the reason that’s important is that in my experience in doing this for as long as I have once a payer comes up with a determination based upon whatever you submitted, it is very difficult to get them to change that.
Opinion through submission of additional information. Sometimes it’s like trying to move a mountain. And oftentimes I, I tease, the investigators on the other side. I say, come on, you’re giving me the, please don’t confuse me with the facts defense. Here, the objective in this analysis is to determine.
Whether the payer paid for something they weren’t supposed to pay for, not to raise hyper-technical objections about documentation content or whatever. Hopefully the objective is to achieve some equitable result. And no doubt, there are some things when they audit you that. You’re likely on the hook for and that you’re gonna have to refund.
But there may be other things that are explainable and or justified in the record, or they’re applying a standard that they don’t have. It’s what I call the everybody knows rule. But having some assistance during the record preparation process is oftentimes critical to how this process is going to resolve.
I did mention keeping a copy of what is submitted so that if there’s any question about and even to the point where you Bates number the pages so that they can’t argue, oh, we didn’t get that record. Yeah, you did. It’s Bates number, whatever, and here’s the submission that we sent you. And it eliminates those kind of problems as you work towards resolution of whatever the payers.
Upfront concerns are what concerns they develop after they’ve looked at the records and helps to re, get resolution. The other reason why you want records evaluated before they’re submitted is that if there are in fact issues of policy compliance that we can identify, we implement corrective action immediately.
Okay. Now some doctors are concerned that shoot, if I admit do corrective action and I make these changes. Isn’t that admitting that I was wrong? And it might be, but it doesn’t matter. ’cause if you were out of compliance with a particular policy requirement in a manner that justified an overpayment it it’s just a civil administrative.
Overpayment issue. It’s not a fraud case. So we’re not worried about intent or did you know about the, those aren’t issues that are of concern. It’s not about being dishonest or anything like that. It’s just you made a mistake, you were supposed to do something, you didn’t do it. And maybe that justifies the payer demanding a refund.
That being said, you want to implement corrective action right away, A, so that you don’t have that liability going forward. And B, because oftentimes the resolution of these post-payment results, it takes a little bit of time. But they, in evaluating a settlement proposal, they look to see, what has changed in.
The data relative to your billing and to the extent that they see positive change that helps in the settlement process. Because a lot of audits, most payers it’s not just a hunt for money, but they’re looking to eliminate payment vulnerabilities and they’re more concerned about what’s gonna happen to them in the future than what has happened in the past.
When a payer asks for a great GAVA money that they know that you don’t have they know they’re not gonna get it. And, so there’s gonna be some settlement that, might sting, but it’s gonna allow you to survive. And, generally I don’t recommend self-help and here’s why.
There’s an appeal process, okay? And when you. Foul, some incomplete appeal. You’ve burned a step. And it’s very difficult sometimes to convince a payer to allow us to restart that process and do it the right way, and you may get stuck. I. Going, fouling, your first substantive appeal in arbitration which is expensive.
And it raises the potential, like you didn’t raise this defense before. You’re, you’ve waived it. So you compromise your legal rights, when you try to handle these things yourself. And I’ve never seen a scenario except for one where a provider had the knowledge. To effectively appeal on their own.
Usually it turns out to be a disaster. So recognize that you do what you do and there’s people that do this and you’re not one of them. So get assistance when you get buried in this process because with assistance you have a better shot at getting a better result. One last thing about law enforcement.
From a policy perspective, arrange in advance every practice should have a healthcare lawyer and not necessarily a criminal defense team, but you should have somebody that is an external compliance contact. Legal that you can contact in the event that somebody shows up with a search warrant, you get a civil investigative demand because time is of the essence in those scenarios.
So you need to know, and your staff needs to know who’s gonna be I. Who that person is, what their phone number is, how to get ahold of ’em in the event of an emergent need. Additionally, staff training, everybody should know how we’re handling record requests. Somebody shows up at your office. You need to know who the point person’s gonna be.
And one last point about that, that I forgot to cover with an in-person request is that when somebody shows up from an office saying they’re from X, Y, Z insurance company, demand credentials. Find out who their supervisor is, call them and make sure that they are who they say they are and that they are within their work responsibility being there.
And I say this because I had a case where somebody who was an investigator and insurance company went to a doctor’s office, not for a legitimate corporate purpose, but to get records for a spouse. Because they were in, involved in divorce proceedings. Just. Make sure, think of red flag rules when you used to have to make sure that the patient that presented you was actually that person.
You want to validate that person is who they say they are, that they have a legitimate purpose for being there. And if it’s not convenient for you to deal with them, if they show up unannounced you can tell ’em to leave and come back to when you’re, you’re not gonna have patience and you can deal with them.
When you do, when that visit does happen, sometimes they will request access to your EMR program. That absolutely is not happening. Okay? If you understand the HIPAA security rules, you would know why that’s not gonna happen. But they do not have access or any reason to access any record other than, beneficiaries of their particular plan, and even then only the records for services that were billed to that plan. So if they show up on site, you say, look, have a nice, comfortable seat in the waiting room. Gimme a list of what you want. We will prepare it, we will hand it to you. If you don’t wanna wait, we’ll mail it to you.
And that’s also, a good time to get your compliance contact or compliance counsel on the phone, have a discussion with them to say, look, we’re not gonna alter records. We understand the drill, you’re just not accessing our EMR program and printing out records at rec with reckless abandon.
It’s just not happening. Even in the case of I’ve seen a scenario where a board investigator. Thought that they were gonna take a magical mystery tour through a provider’s file room. No, you’re not. Fourth Amendment, they can request specific, records. The board can, and you can, you’re obligated to produce those records, but nothing more.
They would have to have probable cause to request additional records, and if they need additional records, they’ll request them. So hopefully that gives you some some thought processes around these requests. How to address them and think about. How you’re gonna implement policies so that everybody understands we don’t make a mistake and errantly disclose in a scenario where you’re either not required to or where such a disclosure would be a violation of hipaa.
Okay, so that’s all we have time for. I hope that was helpful and we will see you next time.
Don’t miss Part 1 here.
Don’t miss Part 2 here.
Click here for the best Chiropractic Malpractice Insurance
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