Blog, Live Events December 4, 2020

Responding to Record Requests from Medicare or Commercial Payers – Mike Miscoe

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Disclaimer: The following is an actual transcript. We do our best to make sure the transcript is as accurate as possible, however, it may contain spelling or grammatical errors. 

Good afternoon, everybody. My name is Michael Miscoe. I’m an attorney with Miscoe Health Law, and I’m happy to present this week’s edition of, uh, the ChiroSecure Facebook live presentation. And this week we’re going to talk about responding to requests for records from Medicare or commercial payers. I know we’ve done this in the past, but it’s probably a topic that bears repeating every once in a while. So if you’ve heard it before, it won’t hurt you to hear it again. Um, the first thing, when you get a record request, after the panic dies down, um, you don’t need to jerk the wheel into a bridge abutment the world, as you know, it is not going to end, but you do need to think about how you’re going to respond and you need not to waste time. Don’t ignore it. Uh, it won’t go away. Uh, but as you address, um, these requests, be sure to first and foremost, think about some HIPAA considerations, uh, one, uh, you have to analyze, uh, the carer’s request and make sure it complies with what’s called the minimum necessary disclosure rule payers are famous for requesting the complete chart.

Um, and the, the problem with a request like that is your chart may contain things that they’re not entitled to get. For example, if you do, uh, services that the patient pays entirely cash for, not because, um, the, uh, the service went to the deductible, but because it was a non-covered service and the patient paid for it, something like, say for example, laser decompression, that they didn’t cover, um, the patient may have executed. And if they didn’t, uh, I would certainly re uh, you know, suggest that you do. So what’s called a restriction on uses and disclosures. So if those records would never be discoverable, uh, for either payment or healthcare operations, which means to a payer, um, you also need to identify, um, what records are pertinent to, uh, the patients or services or the time period that they’re requesting. Uh, in some cases, a payer may request a particular date of service and, and most doctors would provide the note for that date, but to the extent that medical necessity is on the table, and we won’t know, uh, if they don’t state the purpose of the request, which is one of the other things that we look at relative to the minimum necessary disclosure standards, is that the payer has to disclose the purpose of the request so that we know what records are pertinent, and therefore can respond with the minimum amount of information necessary.

Uh, they want the maximum amount of information necessary, and they want to provide as little information as possible, but, um, we can a buy time and be comply with HIPAA. Sometimes the answer to a record request is we draft a response, asking them for more information, what is the purpose of your request? So we can comply with the minimum necessary disclosure standards, um, and, uh, and whatnot. We also look at the request to determine if it complies with, um, any state statute of limitations, period, uh, contractual provisions usually let them request anything they want. Uh, the limitations period comes into play later if they do a demand. So once we get, uh, the purpose of the request, then we look at, uh, the, the, what they’re actually requesting. Like I said, if it’s a specific date of service and medical necessity is part of the, or their analysis, obviously we’re going to need more than that one record to understand where that visit fits within the scope of a course of treatment.

So you may need to go back and provide the initial exam and the treatment plan and maybe progress valuations leading up to that visit. And maybe even some of the notes leading up to that visit in order for them to get a picture of what’s going on with a care in that particular case. Um, uh, so look at that very carefully and don’t just provide only what they’re asking, provide, uh, or the dates that they’re asking, provide all the records that are pertinent to those dates. Um, we also have to look at when you get a request, uh, one of the first things that we analyze is whether you’re getting the requests from a provider, a payer that you participate with, meaning you have a contractual agreement. Usually those agreements require you to comply with their record requests, or if you’re a non-par provider, no such agreement exists.

In which case we take an entirely different, uh, approach. So, um, you know, participation has a very big impact, uh, as to, uh, how, and or if we’re going to respond. And when I say, if we’re going to respond, that doesn’t mean if you’re not participating, you can ignore it. Um, but we certainly respond in a different way. Now, it’s not uncommon for docs to S you know, they pull the records and they start looking at them, and then they start having panic attacks about mistakes. They made things they omitted, um, and your natural reaction is to want to fix the records, whatever you do, don’t do it, do not alter your original documentation ever, because you will take a case that’s just about money and turn it into a title 18 crime. And when I say title 18 crime, that’s the U S crimes code, uh, it’s entitled 18.

And one of the, um, uh, potential crimes is false statements, false statements related to a healthcare matter, um, uh, obstruction of justice, you know, and, and the list goes on. So be very, very, very, very cautious. Your records are what they are. If they don’t say what they’re supposed to say, there is a process, uh, that we go through, uh, to clarify Amanda and or correct the record, but it is an open and transparent process where we prepare either addendums at test stations that, that may further clarify the services that were performed, but whatever the issue is, this is where, um, you’re probably gonna need some help getting those things drafted appropriately. We clearly identify the date that these agenda are created. And, um, and we let the payer know this is additional information, uh, that is provided, uh, in order to help them better understand what’s going on.

Now they can choose to ignore that information or not. I don’t care. All I care about is that we do the addendums attestations the right way. Uh, we disclose when this information was created. Um, and, uh, and that the information that we provide is actually true organization of your records. Do not think that, Oh, you’re so annoyed by them subjecting you to an audit. You’re going to make life miserable for them by, you know, not organizing your records. They should be in a sending date order, any attestations, uh, addendums, whatever should be at the top cover letter on the top packet, but each patient alphabetical order a sending date order for the records and try to organize them in a way that makes it easy for the carer to get through them, because look, the easier you make their job, the more likely it is that they’re gonna like you and B find what they need to find.

If you send them a mess and they can’t find it, they deny the service, and then we get to appeal. And now we were in a position of having to change their mind, uh, and that’s sometimes very difficult. So make sure that your records are well organized. Also, once you get your records organized, make a complete copy of what you send them. Uh, first and foremost, council’s going to need it, uh, for their experts at the time of an appeal. And, um, uh, we need to be sure that we get the exact duplicate of what they got so that if there’s anything extra that needs to go in response to some, uh, issues that they’ve identified, then that information can be delineated. Um, and finally, uh, we need to talk a little bit about when you should involve counsel. Now, in my experience involving council early is a very important, um, uh, thing to do, not because I’m a lawyer and I get to make more money, but because it keeps you from making mistakes and, and potentially gives us an opportunity to address some issues that they’re likely to be raised, you know, with addendums, attestations or additional record information, but, uh, validating that we have a packet that hopefully addresses, uh, most of the obvious and easy concerns like, you know, did you sign your records?

Um, and, and we should make a comment about that. If your records are not electrically electronically signed in your EMR, meaning it puts a statement in there electrically electronically signed by Joe Smith, DC. Um, then you’re going to have to physically sign them and then print your name underneath with your credentials. Um, so, uh, and, and payers will deny over signatures, uh, even though most do not have policies that even require them. And interestingly enough, they, they look for signatures for signature sake without understanding what the signature actually means. The signature is, is an attestation that the information contained in the record is true. Um, you know, and, and oftentimes there’ll be fully happy with a signature over top of a physician statement says, dictated, not read well, how could the physician attest that the record is accurate if he didn’t read it or she didn’t read it?

So, um, that’s the importance of the signature. Most payers don’t understand that they’re looking for signatures for signature sake, but that’s another easy thing that we can fix, uh, with council involved early on. If you’re, non-participating, council’s especially critical because, you know, in many cases we will look at the risk of sending the records in and given the payer the opportunity to evaluate them, uh, rather than re um, uh, responding to the record requests with an objection on the basis that they have no authority to audit you. Um, I mean, they can ask to audit you, but you have no obligation to participate, uh, in that process. Um, so there’s a number of legal doctrines, but there’s some potential blow back. So those are things that you’ll want to discuss early so that you fully understand, um, what your options are. And then you can instruct counsel how you want to proceed.

Uh, if you’re participating, you’re going to have to respond. But again, the value of council early on is, uh, making sure that you understand your contractual obligations. What kind of timeframes, if we need extensions, you know, you’ve got diminished staff because of COVID, you know, whatever the issue is, they can work through that process and know payers don’t go, Oh my God, you got a lawyer. It must be a crook. That’s not what they think they’re used to this. Uh, I do this 365 days a year. And, and, uh, you know, payers sometimes appreciate when counsel’s involved because they know, uh, that, um, the process is going to be done correctly. Um, I’m thinking that’s probably pretty much all the time we have today. Uh, next week I think I saw, uh, on the screen, uh, our speaker is, uh, you’ve got Noel. Uh, I’m sure she’s going to have a fascinating topic for you.

And, uh, um, I will look forward to seeing you next time.

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