Understanding Third Party Covered/Non Covered Care Types – Mike Miscoe

Good afternoon everybody, or morning depending on your time zone. My name is Michael Miscoe. I’m a healthcare attorney with Miscoe Health Law and I’m happy to be here today to discuss third party covered and non-covered care type definitions.

In representing providers and doing forensic analysis on behalf of other attorneys for providers involved in post-payment audits, I find that providers that are caught by surprise with respect to allegations that their care is medically unnecessary are often surprised by that only because they really don’t understand the difference between how providers and physicians define medical necessity and how payers define medical necessity. So I thought I would go through a couple of the more common types of care that chiropractic providers routinely engage in and kind of outline how those definitions apply relative to the payer coverage rules.

So we’re going to start on the easy side. We’re going to start with restorative or medically necessary care. Fundamentally most payers consider care medically necessary when there’s a couple of things evident in the record. One, there’s evidence of active symptomatology. Now that this doesn’t mean that they have pain. It just means that they have active symptomatology and generally they tie it to evidence of a significant mechanism of injury. So when I’m looking at documentation, it’s one of the first things I look for, is there evidence of significant injury. So Medicare cases or even commercial payer cases, the long car rides, the aggressive feather dusting, the moving a piece of furniture isn’t the kind of stuff that really gives us a ton to wrap our arms around because in most cases, those relatively mild upsets can be treated with one or two visits and they payer concludes that the care is palliative in nature and they don’t want to cover it.

Restorative care, however, is where there is a significant injury causing significant functional deaths. That usually is measured by outcome assessment. There are identified treatable objective problems for which you can establish objective measurable goals for the treatment, meaning changing the severity of each of those problems and you track that over time. The documentation burden is brutal to demonstrate all of this. But when you can show objective improvement resulting in improved functional capacity through outcome assessment and there’s likely a corresponding reduction in symptoms, but it is the objective improvement and the diminished functional impairment that drives coverage.

Now, one thing I have to point out is that restorative care is technically evaluated based upon expectations. So it’s the treatment plan and the expectation and establishment of these objective measurable goals that is what makes the care medically necessary. So it’s the purpose of treatment that defines whether it’s medically necessary or not, not so much how it turned out.

And some payers embody that concept in their medical policies where they’ll give you a certain amount of time to demonstrate that the care is working in some fashion, and if it isn’t, then you have to go back and either rediagnose or figure out what’s going on with your care plan and why it’s not working and re-develop what you’re going to change and create a new expectation. And when that doesn’t work, then you’re out. Or as long as you can demonstrate that the care is resulting in what they call significant improvement in a reasonable and generally predictable period of time, then you can win a medical necessity gun fight. And while I’d love to talk about the documentation necessary to do that, that’s about a three hour presentation, and I don’t think we have that much time.

But let’s look at the stuff that chiropractors traditionally do that their payers hate. They deny it routinely in post payment analysis. And last time we talked about some data metrics that can increase your risk of post payment audit. And these are some of the things that they key on. There’s a generic term called maintenance care and there is a specific type of care that’s maintenance, but maintenance also includes things like palliative, supportive, corrective, elective, preventive care, as well as wellness care. And I thought I would talk about each one of these elements very briefly and some of the indicators before you even look at the charts as to what type of care I’m likely to find.

Palliative care is care that is oriented towards reducing a patient’s symptoms. So I like to call it Motrin care. And the problem with Motrin care is, is that it’s not covered because Motrin’s cheaper than you are. And that sounds harsh, and Motrin’s either bad for your kidneys or your liver. I can’t remember which one. I know it’s just bad. But insurance companies really don’t care about that because by the time those problems develop, you’ll likely have another insurance company and it’ll be their problem. And I don’t know if that’s the reason or not, but it’s at least rational. But at the end of the day, especially where you participate, you will find this most cost effective, least costly setting requirement in there buried in their definitions of medical necessity. And that’s why they don’t cover conservative treatment with a purely palliative outcome.

Palliative care is usually you’re one and done two and done. The patient comes in with a flareup of symptoms. I mean, they got dressed. They’re going to work. They stop in at the office. They lay down. They get adjusted. They feel better. They love you and that’s great. Unfortunately it’s not covered. And even for the patients say, “I get” 20 visits a year or a certain number of visits a year, that is true. They get those. They’re entitled to that kind of coverage for outpatient chiropractic, conservative treatment, however, only if those services are medically necessary.

So you have to be the arbiter of what you’re willing to bill and what you’re willing to declare as medically necessary or not and then have the documentation to back it up. And while I am really good at crafting arguments for medical necessity, there are certain things that I can’t cover and will never cover. And palliative care the one and done, two and done, in and out, very brief periods of care are very difficult to cover because we cannot demonstrate with that minimal amount of care that you’re making significant and durable changes to the patient’s condition.

Supportive care is an interesting one and it has a variety of definitions. In one case, supportive care, if you consider the traditional three time a week, two time a week, once a week, once every two weeks weaning off of care, when you do your first treatment break, that usually indicates that the treatment that you’re doing has done all that it’s going to do. And then in typical chiropractic fashion, we’re going to continue to do manipulative care or maybe some therapies maintain joint function. So as the patient presumes normal activities, they sort of rehabilitate themselves and that rehabilitation is more effective. We’re letting the body and we’re helping the body heal where helping the body heal is a subordinate function. That’s what makes it not medically necessary.

In other cases, supportive care can be defined as what I call regressive care. And in some payer scenarios it might be covered. Usually workers’ comp, maybe some cases personal injury, depending on what the statutory or regulatory definitions and necessity are there. Insurance payers usually don’t cover it. Medicare doesn’t cover it. Medicare expressly doesn’t cover it. But essentially when a patient reaches a plateau in terms of objective improvement and they’re not going to get any better and their condition is either already or going to become chronic, yet they have functional abilities or their current functional demands are likely to cause a regression in their symptoms and functional status, you do a withdrawal of care and then you provide some limited amount of treatment and you establish what the minimal amount of treatment is in order to maintain what you achieve through your restorative care.

And while that is certainly appropriate care and a lot of patients need it, in the commercial blues, United Healthcare, Aetna, Cigna, they just simply don’t cover that type of treatment. And Medicare doesn’t cover it either. So depending on how you define supportive care, it’s either the healing process is continuing, but we’re merely supporting that process, which that’s what makes it medically necessary, or we’re supporting the patient’s condition based upon anticipation or regression and doing limited amount of care to prevent that regression. That’s also not covered because it sort of has a preventive flare.

The corrective care models. Usually I see these with chiropractic, biophysics practitioners where they get infrastructural correction, and that would seem like restorative care. You’re restoring the natural curves to the body. Fine. But unless the patient’s abnormal curve is causing a significant functional deficit, you’re not going to get paid to fix it. And moreover, during that course of care, once a patient reaches a level of a status where they can resume their normal activities, then you can’t get paid or you can’t justify continuing to build treatment because you’re trying to make that curve perfect. And I’m not saying it’s improper care. That’s not the issue at all.

It’s just not covered because payers see that is being preventive. You’re preventing onset of early degenerative changes. You’re preventing the potential for future injury maybe. I’ve had a military curve ever since I was at West Point. I’m 57 years old and I still function fine, in which case while it may be beneficial to put that curve back in my neck, assuming that’s possible at this point, no one’s going to pay you to do it except for me. So that is the corrective elective care. That’s how they see that. They see it as essentially in the same category as preventive care and they don’t cover it.

Maintenance care is care oriented similar to this, the secondary supportive care definition, but it’s care that’s usually once every and designed to maintain gains achieved through prior treatment, or patient just comes in and they want to establish and maintain their present level of musculoskeletal health through periodic treatment. Perfectly, appropriate care, certainly clinically appropriate. It’s just not covered. And the visit schedule is what you know where you get sold out because it’s very identifiable to a payer because they see that once every type of visit schedule. They see your average visits frequency dropping below two in which case you become a pretty a significant audit target.

True wellness care, that is care with a patient with maybe some periodic symptoms but no significant functional complaints. That’s going to be treated periodically just to improve and enhance their quality of life and general musculoskeletal health. Again, perfectly appropriate care. No licensure board’s going to take your license away for doing it unless you come up with a plan involving bihourly treatments. But for the most part, that type of care is never going to be covered. And again it tends to be sporadic or periodic. It’s not any particular visit schedule. And when you stack three years of that kind of care beginning to end, there’s no outcome, in which case the expectation of causing significant functional improvement and objective improvement in a reasonable and predictable period of time. That’s the argument we can’t make, and that’s why that type of care gets denied and there’s really not too much I can do about it.

Now as far as the documentation, providers that are moving their practices into the cash model doesn’t mean that you can’t provide initial more frequent care two to three-time-a-week care and that you’re stuck with having to bill it. Or if you do and you want to bill it, is the documentation that is going to drive, whether it’s considered medically necessary under third party payer standards and Medicare standards or not? And essentially, let’s say a patient has some kind of injury and they come in and you start them off three times a week for a week, maybe five visits, and you declare your goal of treatment to be palliative.

Trust me, that’s going to make it non-covered because I’ve had three-time-a-week care for four to six weeks and all of it was denied because the documentation did not establish appropriate objective and functional goals, in which case the payer argued that the documentation didn’t support the necessity of care, and they denied all of it. So documentation drives whether care is medically necessary or not, not what you’re doing or the condition that you’re doing for. It’s the purpose of the treatment, as I mentioned earlier, that is the real delineator.

When carriers analyze chiropractic documentation, I could probably retire if I had 10 bucks for every doc that told me they had great notes. Great notes to you and great notes to payers are two totally different things, and it’s unfortunate that that’s true, but payers know that, and that’s unfortunately why chiropractors and physicians for the same reason become such great audit targets.

The documentation systems that you’re provided aren’t focused on justifying the necessity of care. They’re focused on justifying the appropriateness of care, which means you take a history and you’ve got complaints and you do an exam and you find subluxations and point tenderness and spasm and limited range of motion and all those normal kinds of things. And then you go to the next visit and you find all the same stuff and then you find all the same stuff.

So as you go through a course of care, you’re giving payers the argument of clone documentation, which they hate and potentially even documentation suggesting analysis that you didn’t really do but is nonetheless probably accurate because people don’t usually have meteoric shifts in their functional and musculoskeletal status from visit to visit. But secondarily, as you go through, you do all these tests and you find these problems, you’re not qualifying how severe the problem is. In which case when I look at the first note and I look at a note, two or three weeks in, you’re finding all the same stuff, and the only thing that’s really changing is the patient’s visual analog scale or symptom rating, the severity of their symptoms. And the best argument that I can make is the care is palliative.

In which case, the approach to documenting restorative care is therefore a couple of things. One, obviously you’ve got to find the problems just like they taught you how to do in doctor school. You have to diagnose the problems and sequence them based upon treatable conditions, symptoms. And complicating factors. You have to write a treatment order to how you’re going to treat each problem. And more importantly for those treatable problems, I need to know how severe they are now and how severe you expect them to be when you’re done. And then we have to periodically check throughout the course of care to see how you’re doing. And those checks are usually appropriate when the patient reports a substantive change in the severity of their symptoms because that’s usually an indicator of objective and subjective functional improvement.

And while I’d love the way out that whole process, the documentation is extremely burdensome. I can tell you if you made me a chiropractor, I wouldn’t do it in most cases because it just takes too much time for the value of the case and it’s just not profitable. That’s what’s driving many providers out of Medicare, commercial payers into cash models of care. Because while the documentation is doable, it’s just not cost effective to do it. But if you’d like to see examples of that, feel free to get in touch with me. I’ll send you a sample plan. And then after you talk yourself out of jumping out the window, maybe we’ll do another session on cash practice models as an alternative.

If nothing else, if you choose to bill, select your cases very carefully, understanding the types of covered and more importantly the non-covered types of care. Those non-covered types of care are usually pretty evident based upon your visit frequencies, and payers tend to pick on providers based on those, on those statistics. And when they do, they usually find what they’re looking for and it leads to a big post payment or potentially a big post payment demand in the need to defend that and work out some kind of settlement. But nobody walks away from an audit. So as the best arbiter of what you’re going to take the risk on and bill and document effectively versus what you’re not and shift the burden to the patient, you’re the best person to do that. And while I believe that you should get paid for everything that you do, you need to be very careful who you ask for that payment if you want to avoid post payment risk.

Well, that’s all we have time for today. Sorry this went a little long. It was a little bit of a robust topic. Next week we have Sherry McAllister. She’ll be doing a riveting topic, I’m sure, and I look forward to seeing you next time.

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