Medicare Compliance & Reimbursement

EHRs being made the culprit of E/M code abuse.

The sharp rise in upcoding of evaluation and management encounters in emergency departments is being attributed to the increase in EHR use by the media and the HHS Office of the Inspector General. In May 2012, the HHS OIG issued a report citing that ED E/M’s were the fifth largest paying codes in Medicare among all of the E/M codes, says Ed Gaines, JD, CCP Chief Compliance Officer for Medical Management Professionals, Inc, in Greensboro, NC.

While acknowledging that it had not performed chart or medical record reviews of the documentation and coding, the OIG noted that from 2001-2010 CPT® code 99285 increased from 27% to 48% in the ED E/M frequency distribution, says Gaines.

Put another way: With each percentage or fractional point equaling one basis point move, Level 5 code usage increased over 2000 base points (bps) in this period (48.00% less 27.00 %=2100 bps). As noted by OIG, the lower ED E/M’s decreased over this same period. The OIG’s overall report on the increases in E/M’s in general was not limited to emergency medicine, Gaines explains.

While not mentioned in the OIG’s report, critical care has also seen major utilization increases. From 2005 to 2011 (a different measurement period than referenced by the OIG), critical care increased 304 bps from 4.11% in 2005 to 7.15% in 2011 nationally, Gaines adds. (See table below).

(Source: 2011 Medicare Part B National Summary Data File (formerly known as the BESS data) for emergency physician specialty 93 and Place of Service (POS) 23).

For historical purposes, the 2001 Medicare BESS national numbers are as follows:

• 99281=1%
• 99282=7%
• 99283=29%
• 99284=33%
• 99285=30%

Then, in September 2012, the New York Times carried a major story based on data analysis from the Center for Public Integrity claiming that coding acuity had increased directly in line with the increased utilization of electronic health records (EHRs), says Gaines.

Specific reference was made to ED coding, although it appeared more directed at ED facility coding than professional fee coding.

Nonetheless, this Times’ story coupled with the OIG report and the evident "shift to the right" has prompted questions by hospitals, physicians and the public regarding whether the increased acuity is appropriate based on increased patient acuity or whether it was revenue driven (the result of "upcoding" by improperly buffing up charts in order to justify a higher level of service), he adds.

These stories prompted a response from HHS Secretary Kathleen Sebelius and Attorney General Eric Holder in a letter to hospital associations warning that false documentation was not just bad patient care, but also illegal. They state their intention to escalate efforts to aggressively pursue and prevent fraud and abuse, says Gaines.

So How Do You Defend Your Distributions?

There are several factors that have led to the "shift to the right" that are legitimate and are not related to any allegations of "upcoding."

First, based on the 2011 Medicare acuity data for non-physician practitioners (NPPs), NPPs accounted for an average of 36.35% Level IIIs and 32.65% Level IVs (combining both NP and PA percentages). If the NPP is seeing the lower acuity ED visits, it stands to reason that the emergency physician will be seeing a much greater percentage of higher level visits, Gaines notes.

Second, in the past ten years, the growth of urgent cares, minute clinics in pharmacies and Big Box stores has exploded and significant portions of the lower acuity patients have been peeled off to these practice settings, says Gaines.

The emergency physician’s documentation has also improved from the hand written charts of 20 years ago, to the development of templated paper charts 10-15 years ago to the EHRs of today. The 2001 Medicare acuity (as noted below) at 30% was likely significantly under reported from what that acuity should have been based on the patient’s nature of presenting problem (NOPP), Gaines adds.

Know Where You Stand Compared To Your Peers On Key Compliance Triggers

What can you do to protect yourself? Gaines recommends these three key strategies:

1. Match your ED group’s acuity against state acuity data for specialty 93 and match individual physicians against other physicians in the same group. ED groups should analyze data and individual doctors who are more than two standard deviations higher than the state acuity (when reviewing the group) or higher than the other doctors in the group (when reviewing individual acuities).
2. Encourage your ED group to review cases where the coders did not believe that critical care was supported by the documentation, even though it was requested by the providing physician. Coder or coding quality assurance review of these "outliers" should then be performed to rule out that the higher acuity is not the result of coder error, including coders "giving" critical care to the doctor wherever he or she requests it, advises Gains.
3. Analyze EHRs for potential inappropriate "prompting", macros, cloning and cut and paste issues. For example, whether the EHR automatically populates the discharge medication and problem list from the last inpatient admission may be problematic, both from a medical necessity issue and compliance sand point. Macros are expressly permitted by CMS under Transmittal 811 for teaching physicians (TPs) and residents provided that there is patient specific detail regarding the involvement of the TP in patient care and an appropriate linkage statement to the resident’s work up, Gaines explains.

The bottom line: ED group acuity may be perfectly appropriate for a host of legitimate factors despite a macro "shift to the right" of ED acuity over the past ten years. Provider and coder education and quality assurance are essential to assist in accurate and appropriate reimbursement -- as our responsibilities are to obtain the appropriate reimbursement for the emergency physicians -- no more and no less, says Gaines.