The End of the PHE & Post Payment Enforcement Trends – Miscoe

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Good everybody. My name is Michael Miscoe with Miscoe Health Law. I’m happy to join you today for today’s ChiroSecure’s Growth Without Risk presentation. A couple of things we want to talk about. We’re going to talk about two totally different topics, but, uh, um, only because the first really isn’t going to take enough time to make it worthwhile you tune in. And that topic is thinking about the end of the, uh, PHE, the public health emergency that was declared in response to, uh, uh, COVID. Now, as you know, there’s been, uh, there’ve been a number of, uh, rural changes, most notably in telehealth, um, where, um, uh, office or other outpatient evaluation management services can be reported, uh, for, um, non face-to-face encounters. Um, the, uh, a variety of, of tele-health, uh, mediums, uh, the old role required, um, synchronous communication. The patient had to be in a special site, um, and, uh, there’s all kinds of licensure issues.

And, and, and because of the PHG, um, and trying to drive, uh, encounters as much as possible into a remote, um, type of environment for public safety concerns, uh, there has been an enormous number of rules, uh, especially in the Medicare side, uh, which has spilled over into the commercial payer, uh, realm where, uh, a lot of exceptions to the normal rules relative to tele-health have come out now what we have to everybody’s getting used to this environment and billing these services this way and using appropriate modifiers and whatnot, uh, but understand once the public health emergency ends, uh, for federal health care programs, certainly all of these exceptions, um, that CMS has granted the permit, um, the services to occur the way they’re occurring now, um, you know, via, uh, relaxed, medium requirements, um, billing, uh, uh, regular ENM services for telehealth or telemedicine, uh, conducted services that all goes away and it’ll go away instantly, and you need to be prepared for that on the commercial payer side, um, there will be rural changes as well.

So to the extent that commercial payers are granting exceptions through the normal rules to allow this to occur in response to the PHC, expect those rules to roll back somewhat as well. Now on the plus side, um, there have been, um, uh, payers are starting to the value of, uh, tele-health. Uh, so I would expect, uh, you know, a continuation of some form of telehealth going forward, uh, that is in a more relaxed, uh, environment than, than what existed before the PHG, but just be very mindful that the moment that, that PHE, uh, uh, declaration is rescinded, a lot of rules are going to change rather instantly. And you need to be prepared for that. Now, switching over to, uh, the other topic, which will carry us through, uh, the remaining, uh, five to 10 minutes of our presentation today. One of the talk about some post-payment enforcement trends that, that I’m seeing, um, you know, as I provide, uh, uh, representation to clients involved in post-payment audits, and this is, uh, both, uh, commercial payer, as well as, uh, Medicare, uh Tri-Care um, and, and other, uh, Medicare part C plans.

Um, you need to be certainly vigilant to watch your billing profile, um, suspect, uh, coding patterns, uh, on the chiropractic side, um, billing for, uh, nine, eight, nine, four twos, always going to get attention, um, nine, eight, nine splitting out, uh, extremity manipulation, uh, frequently, um, which I would say means more than 10% of the time, uh, is probably going to get an alert anytime that you separately report manual therapy from spinal manipulation, uh, with a 59 modifier, uh, same thing with massage. Neuromuscular reeducation is often, uh, miscoded, uh, as massage or manual therapy services. And that that code gets a lot of attention. Um, and, uh, uh, obviously, uh, billing for a number of procedures. Um, a lot of one-on-one, um, especially insofar as massage or manual therapy is being performed by others, build under the provider, um, that raises some incident, two issues that we’ll talk about it in a minute, but those are things, uh, four units of massage, four units, manual therapy.

Those are things that are going to get a payer’s attention and put you on the radar screen. Nobody gets audited randomly. There’s always a reason. And usually that reason is generated based upon data analysis. Um, some other trends that you need to be mindful of, um, is, um, visit frequency issues. You would think that too much is, is problematic. Actually, it’s the opposite, uh, where your visit frequency, your average visits per week, uh, drops below one, meaning you’re doing episodic or once a week, or once every two weeks type of care, that’s indicative of, uh, what would be considered palliative preventive wellness, or maintenance care, which is uncovered, um, and, and providers, uh, that exhibit billing patterns along those lines, those cases, uh, tend to be audited, uh, with some degree of frequency because it’s low hanging fruit. I mean, there’s not much that can be said about your chances of achieving significant durable improvement in the patient’s condition when the patient’s coming on an ad hoc basis.

Um, other things they look for is, uh, your diagnosis reporting, uh, where you consistently use a symptom and subluxation, um, you know, ICD 10 reporting guidelines require you to cease using symptomatic diagnosis is once the, the condition causing the symptom is known, which should occur on the first visit. Uh, so for example, if a patient’s neck pain is due to a sprain strain with a, an encroachment syndrome and maybe ridiculousness, um, those are much more powerful diagnosis is to report. And obviously if you diagnosis follow your exam findings and diagnose the condition based upon what your exam findings tell you, you’re going to get diversity in your diagnosis, and you’re not always reporting the same thing, uh, from patient to patient. Um, so those types of consistencies in, in diagnosis reporting will, will, are very easily identified, uh, with data analytics, visit frequency number of services per visit.

And, and the next thing I’m gonna talk about is consistency in the codes that you bill, um, looked at, uh, or have become involved in a number of fraud cases that are, are based in theory, at least on what the payer is alleging as cookie cutter treatment. Every patient gets the same treatment, no matter what the condition is, no matter what the mechanism is, they always get the same thing. Now, in response, again, superficially, when a provider has his or her hands and adjusting table a STEM machine and attraction table, I’m not surprised that most patients are going to get manipulation, STEM and traction, um, because it’s what the, what the provider has the cookie cutter treatment issue though, um, can be, uh, addressed even in that scenario when the type of STEM, uh, the type of traction, the location of the traction, the location, the STEM is not the same for every patient.

The codes may be the same, but, um, the protocol being used is going to differ varying or dependent on, on the patient’s presentation and condition. And that’s where, um, you know, more deliberate, more detailed treatment orders in your initial evaluation and treatment plan becomes so significant. And, you know, you may be doing a VMs burst on this patient. You may be doing high volt, uh, on that patient. Uh, you may be doing some type of, uh, uh, uh, pulse, uh, uh, DEMA reduc, reducing stim protocol on that patient. Some patients may be getting inner segment segmental traction, some may be getting a form of axial traction. Um, so, uh, varying the type of treatment, um, even though the code is going to be the same and the same false true with your exercises, you know, you should have a treatment order that details the specific exercises sets reps, um, so that you can avoid any allegations that every patient gets the same treatment.

And it’s kind of surprising that some payers are actually bringing this as a fraud theory, because it’s relatively easy to disprove, especially where the provider is, is, is documenting, um, the details as to how the therapy is being performed from one patient to another. Now, if your treatment truly is cookie cutter and every patient’s getting the same thing, understand that there’s risk there. Um, but they won’t know that, uh, they’ll, they’ll see it based upon your coding. Um, but just remember computers are very, very good at identifying, uh, patterns. Uh, so where things are the same, that’s easy to detect, uh, and it can increase your post-payment liability. The last thing, uh, that I would talk about relative to enforcement, there’s, there’s a lot, been a lot of effort on what some payers are calling pass through billing. Um, when in reality, um, it’s, it’s what we call incident to billing.

Now, what pass through billing is, is if you were to delegate the performance of an entire service to somebody else and bill it under you. So imagine you had an independent contract, um, chiropractor, renting space out of your office running his or her own practice under a separate tax ID, and they were providing services for you. Uh, and you were billing their work under your name. That would be an example of pass through billing pass through billing often happens with lab services or iLab gets specimens. And because of, um, insufficient testing capacity, they dumped the specimen off onto another lab, uh, who does all the testing work, sends the report, and the report ends up going back to the physician, but the, the, the lab that received the specimen initially does the billing, and then they pay, um, the, the lab that actually did the work.

That’s an example of what pass through billing is now in your office, when you delegate the performance aspect of a service to a staff member, or maybe another, an associate chiropractor or something like that. Um, that’s what we call incident to billing where the, um, the patient is evaluated, diagnosed. The plan of care is all that work is provided by a credentialed physician. And then say, for example, the, the therapeutic modalities, or maybe even some procedures, um, the performance aspect of that work is delegated to a staff member, uh, in, under the incident to rule that’s called an auxiliary person. And that work is billed, uh, then under the supervising chiropractor. And that chiropractor usually has to be, or physician has to be providing direct on-premise supervision of that work. Now, in these cases, it helps a lot, again, getting back to the detailed, uh, order for the therapy services, where you can demonstrate that the ordering physician, the credential physician actually wrote the order and provided all the who, what, when, where, why of how a therapy is going to be performed, if it’s exercises, the specific exercises to be performed, sets, reps, whatever, and then consistent with your licensure requirements, uh, you delegate, um, the performance of that therapy.

So if it’s a modality, um, you know, uh, an assistant is going to come in and put the pads where you tell them to put the pads, they’re going to switch the knobs to where you told them to switch the knobs. And, um, you’re going to stay in the building to provide supervision, and that commonly occurs. It’s not pass through billing, but it’s, what’s called incident to billing. Now, when you, you’re dealing with time-based services and you have, you know, rehab assistance or massage therapist, or somebody of that nature working under your direction, uh, as permitted by your licensure rules, maybe they’re, they’re certified chiropractic assistants, some places they’re called registered assistants. Um, that’s fine. Okay. But what happens is, is that when you have other people performing time-based services under you and you bill for those services under your name and NPI, it makes you look very busy and, and payers do what is called impossible day analysis.

Um, and so for example, in an extreme sense, say you’re one doc, and you have 20 assistants working for you, and you’re generating, um, 20 times four 80 units and hour of rehab, or let’s say manual therapy for getting the unbundling, a manual therapy or massage. If you run a big massage therapy practice and all of this stuff is being built under you, um, you need to be extremely cautious because, um, that billing profile a payer’s gonna look at it and they’re going to say, there’s no way that this one guy or gal can be doing this much service in this much time. Um, and, and they make refund demands as a result now with massage, especially, we have to deal with the fact that while these people may be licensed massage therapists, they’re not performing within the scope of their license when you’re directing what they do, which means you’re defining the technique, the location of performance.

And it has to be related to the areas of complaint, which usually means you’re not going to bill for units and massage those types of, uh, things. You know, if you’re going to turn a patient over or a massage therapist, either they’re going to build the services themselves, or it’s going to be cash. If you can’t get paid without billing it under you, then if you’re going to build those services out under you, you’ve got a couple issues. You’ve got to document a detailed order. Number one, you have to provide supervision. Number two, uh, number three, have to worry about whether that, uh, service can be separately reported. In addition to manipulation under the payer’s rules for reporting massage and manipulation under CCI, um, massage, always bundles with, um, uh, manipulation. And it can’t be unbelievable for that reason. Then some providers build their massage using manual therapy, and that may or may not be defensible depending on what techniques are ordered and whatnot, anyway, very complicated issue, but on the incident two side of it, it’s, it’s PR it’s possible, but you need to make sure that the documentation indicates that the physician did all of the didactic or physician relative work associated with the service.

The therapist, uh, went in and did what I like to call the Mike, the monkey boy component of the work, where you tell me exactly what you want me to do. And I go in and do what you said, and I don’t turn my brain on. And, um, and, and that way, um, the idea that it was a chiropractic service, as opposed to a massage therapy service, um, the person’s licensure as a massage therapist only means they have sufficient training to follow your orders. So, um, but I will tell you, it is a defense. It’s not a defense that payers react well to, um, they fight pretty hard. Um, so I would tell you keep your massage cash, but that’s an example of an incident to service and how it differs from pass through billing. But those are the issues that payers are beaten providers up on.

Just wants you to alert, uh, on that. And, uh, to the extent that you’re involved in those types of, uh, billing activities, just make sure your treatment orders are very precise. And so that you can demonstrate that you did all the physician relative work associated with any service that you delegate to another person. One last thing on incident two, uh, while the Medicare rule allows an auxiliary person to be another provider, most payers, um, do not agree with that because they require providers to be credentialed, um, with a new provider, uh, check with your payers to see if they will permit a new provider, undergoing crunch credentialing, uh, to perform, uh, incident to services under the direction, uh, in on-premise supervision of a credentialed provider. Some may, some will not. Um, so check with payers. If, if you know, you need to onboard a new provider, otherwise you’re going to have to plan in advance and get their credentials in place before you put them to work, uh, on patients of that particular payer that requires credentialing. That’s all we have time for today. Next week, uh, Dr. Judson Sprandel II will be up and I’ll look forward to seeing you next time. Thanks for your attention. Have a great day.