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Hey everyone, attorney Michael Miscoe with Miscoe Health Law for this week’s installment of ChiroSecure’s Growth Without Risk. And what we’re gonna talk about today is some of the more notable post payment risk areas that we saw in 2022. And I’ll try to give you some thoughts as to what I expect to see in the coming year.
Probably the biggest issue by that chiropractors were challenged on in in 2022 was delegation of massage. A number of blues payers from different locations around the country challenged the appropriateness of massage services. And they have always been problematic and been a consistent target on post payment radar screens because there are a number of problems, delegation being the first problem.
And in, in cases where we had success, there were clear. Orders demonstrating that the chiropractor was doing all the decision making. Identifying the technique to be performed, the muscles where the service was to be applied or, and the duration of the service. And as far as where a note was required by the therapist the note simply said, Massage performed as ordered for so many minutes, and that was it.
Where there were cases where the massage therapist functioning within the scope of their license took soap notes and apparently did the decision making about the, when, where, and how of the massage service had much bigger problem because then they’re functioning within the scope of their license.
The chiropractor’s merily referring Services were billed under the doctor so that they could get paid that was inconsistent with the tenants of what’s called the incident two rule, and those cases were a lot harder to resolve. Other issues, once you get past the delegation issue, often payers consider it a bundled component of the, of a manipulation service.
Some cases where providers tried to do massages on different days. It was argued that violated the most cost effective, least costly setting component of the medical necessity dis definition found in most payer policies. So there wasn’t. A good argument to get past the bundling or unbundling issue.
In some cases where massage was done on unrelated structures as long as the documentation was clear and it was evident why manipulation was not being performed in that particular region we had some success overturning those determinations. But the key thing, my advice is keep massage cash.
Because if you bill it I guarantee you’re gonna get challenged at some point. And one of those theories is going to be problematic, especially if you’re billing, four units of massage. Goes well beyond what most payers would consider therapeutic in the first place.
Also if you are in a state where you’re you can, you have certified or licensed chiropractic assistance, always a good idea to get your licensed massage therapist dual credentialed as chiropractic assistance. And that way when they’re taking orders from you and doing things under your direction and supervision we can argue that they are aqua.
An appropriately qualified chiropractic assistant who just also happens to be. A licensed massage therapist. And that also makes the argument a little bit better. Also had some issues, massage therapists doing manual therapy techniques again, usually it comes up that it’s four units.
It seems a little excessive superficially especially when the techniques are applied in areas outside the complaint. There’s also the question as to whether the services should have been copied is either manual therapy 9 7 1 4 or massage 9 71 24. And that is a very complex question. It takes a lot more time to answer than I have time for here.
But the short answer is make sure if you’re gonna bill manual therapy, Under your license performed by an assistant, a, make sure that delegation is permissible under your licensure rules. In some states it’s not. And B make sure you write clear defined orders and specifically identify techniques such as trigger point therapy, myofascia release.
Techniques that are focal to a very specific area of the muscle. Fage petro massage, potent compression, stroking. Those are massage techniques that are more general in focus. And that is the fundamental difference between those two codes. Finally The these issues when they arose also led to some other problems, which we’ll talk about as well.
But understand what we want to focus on is the profile rationale that led to the audit and then what it turned into once they had the records. Oftentimes that could be something different or something in addition. And we’ll talk about some of those things. So unbundling manual therapy or massage, probably leading the league, especially where that those services were done by staff, whether certified cas un, if their certification isn’t required or.
Licensed therapist, massage therapist. Carriers are brought to delegation question, and it’s interesting that some carriers have even argued that you can’t bill for anything that you don’t personally do entirely by yourself. And that’s obviously ridiculous because There’s so many examples in medicine where the a medical physician or other type of physician doesn’t do all the work associated with a code.
So it’s fundamentally wrong but it is the point that they keep driving with respect to massage and manual therapy services, so be cautious. And because of those bun, the bundling concerns with manipulation. You may look to train these people to do therapeutic exercises, resisted stretching exercises, things that don’t create this stigma.
And of course, watch the number of units that you’re billing and document your time correctly. Utilization patterns is another thing that commonly drives audit exposure in the number one utilization pattern is predictability. Always billing the same codes, always billing the same number of services.
And I know docs that, do a mix between insurance and cash and say, I’ll build 12 visits and I’ll do this, and then I switch ’em to cash. Thinking that, 12 visits are likely gonna be medically necessary and that might even be true, but the predictability of always a certain number of visits, always at a certain frequency.
Always use inserting codes anytime there’s an always to your billing. Even with manipulation, you’re always billing a 98, 9 41, or a four two. Any predictability in your billing patterns is suggestive of boiler play care rather than care design to specifically address the question or the symptoms or problems that the patient is presenting with.
So not that you try to Manufacture variability. However, if you’re careful about how your findings, what they, what those diagnosis are what services those diagnosis codes would Make in terms of or conclusions that you would make based upon the diagnosis as to what therapy would be appropriate for that specific condition.
You will get variability. You’ll get variability in your level of CMT when you stick to the areas or the regions of complaint and even where your your normal practice is to adjust full spine or perform manipulation full spine. In the region of complaint it’d be preferable if you just focused on the region of complaint when you’re billing third party payers because all those other problems and all those other regions will still be there.
When you’re done with the area of main complaint. Another thing to avoid is what I call condition creep. I see that happening a lot and it leads to. Consistency in the level of CMT where patients say, comes in with neck problems and then the provider looks into how’s your low back feel?
And oh it’s of sore. Ding ding. And now we have a neck, mid back, low back, every single patient all the time, and it just looks weird. And it will trigger an audit. Now maybe your documentation’s really awesome and it’s all justified and they don’t raise an issue about it, but it’s a question of.
Avoiding the audit in the first place. You do that by managing your profile. When you don’t do that well then those utilization patterns will be indicative or of potential error that will likely draw an audit. Evidence of maintenance care, palliative care this is where your PDA is too low.
So when you’re billing third party insurance, of course the care must be medically necessary. And that means something very different to insurance companies than it certainly means to most. Physicians, but that aside when you allow patients to come in episodically and it’s a one and done or two visits and done and then they don’t come back for a while or they’re coming too predictably once every fill in the blank weeks, that is very noticeable in your visit utilization profile.
So when your patient visit, average gets down to something less than once per week. I’d certainly like it to be something north of two. But Certainly if it gets less than once a week, then that’s indicative of either palliative or maintenance care, and that will likely draw a flag. That’ll get you audited and how it turns out.
Usually it’s bad. And then but our ability to respond and negotiate a reasonable settlement depends on what’s really going on in the records. Once an audit gets started, a number of derivative complaints come out usually lack of details or documentation for time-based services. Insufficient documentation of the specifics of how a therapy or an exercise was performed.
So with respect to, let’s say for electric stem, you can’t just said, say, performed electric stem for 15. They want to know the STEM protocol because some protocols, like infer, are often determined to be experimental, investigational, and not covered. So they want to know the, the machine, the protocol you use and sometimes they don’t get too nuts about the machine as long as the protocol.
Is defined in your treatment order. So writing well defined treatment orders, defining the type of stem, the type of traction, all the settings the exercise, name sets, reps, weights, things of that nature, providing those details in a treatment order. We’ll avoid those types of objections. The last thing that they complain about, and it’s a medical necessity issue, and I’ve seen less and less of this, but when it comes up it’s a reasonably legitimate complaint just because of the way EMR software is built.
But there are very general goals. Improve range of motion, reduce spasm, improve joint function, improve patient ADL capacity. Generic vanilla goals that you could say for any patient at any visit. The problem is that they don’t provide you with a definable finish line as to when to dismiss the patient from care, having met the goals established for the plan of care or That they’re measurable, sufficient to identify when you’re not getting any closer to the goals that you established.
So the lack of objective, measurable goals oftentimes leads to medical necessity, denials. And the interesting thing is I’ve seen that argument applied like on the very first visit of care, which is a little bit head scratching, but I think it, it places documentation content over the purpose of the documentation.
But nonetheless, it is a. Basis for denial. Over the past year, Medicare contractors, the Uix have been somewhat quiet. I did not see a significant number of Medicare audits for chiropractic. Manipulative treatment services. I did see in multidisciplinary practices, DME audits audits of physical medicine services, medical services to include trigger point injections.
Bunch of Energy in the regenerative medicine realm which there’s not much you can do because it’s not FDA approved treatment. And therefore it’s not covered. It’s subject to a statutory exclusion. But other than that, pure chiropractic I think has been relatively quiet. I expect that probably to continue.
Into next year. As far as what’s gonna happen in 2023 a lot of chiropractors are moving to cash model treatment in response to insurance companies either reducing the number of permitted visits, requiring pre-certification, all the things that they’re requiring as well as reducing the amount of payment to the point where the effort makes.
Reimbursement just not worth it. So I expect those efforts to continue, what that will mean as more providers moving to cash, less exposure for chiropractic claims, and less interest in auditing chiropractors. Now, if you are not a cash practice continuing to bill insurance, the fact that most many chiropractors are moving to cash shouldn’t give you a sense of entitlement to go crazy.
You’re still gonna stand out. How you compare to your peers is still gonna be how many, how you compare to the peers that remain. So be cautious and if their spend on you individually gets outta control or you’re tripping, some unbundling flags or utilization flags I expect them to, continue auditing chiropractic, even though as a whole, I expect to see fewer chiropractic audits across the country.
The Move to cash, even for practices that are still billing a little bit of insurance. Again, I think will shift the post payment burden or risk calculus just a bit. There potentially may be more licenser board complaints where you remain participating, maybe complaints to insurance companies that you’re, not willing to bill for their care even though you’re not supposed to.
And those things don’t represent big challenges. They can be handled pretty efficiently. Be very cautious about your marketing. Because as you move to cash, everybody’s looking for an edge. Be cautious that you stick to condition based marketing. Be very careful about, especially marketing with respect to things that are not cleared.
By the fda for a certain condition or use whether it’s a machine whether it’s a product be very careful. Also be cautious about making sure that your marketing is for treatment that’s within your scope of practice. So look at your scope of practice laws seeing problems come arise with chiropractors and licensure board issues.
When. Too heavy into nutrition and make statements like they’re gonna reduce somebody’s a1c or things of that nature where those are not chiropractic or traditionally chiropractic problems. So look at your scope of practice very carefully. Also be cautious about as I mentioned, experimental investigational use treatments.
Weight loss is another one that I’ve seen be a little bit problematic. Again, Where your scope of practice limits you to conditions that are related to the spine you’re gonna have to come up with obesity as a comorbid factor to a spinal condition that you may or may not elect to treat, but you’re gonna have to couch a.
The need to do nutritional counseling for weight loss purposes in the context of the impact that it has on the patient’s spinal health in order to wedge that into your scope of practice. Some states it’s not a problem, but be cautious that you understand what the limits your scope practice are.
If you have any questions engage competent health lawyers or health counsel. To help you out with that. That’s all we have for this week. Next week Dr. Sam Collins is gonna be with you and I look forward to seeing you next year.