Primary Care Coding Alert

As you may know, the Department of Justice (DOJ) and the Office of Inspector General (OIG) are constantly involved in investigations relating to healthcare fraud and abuse. In his 2024 HEALTHCON presentation, “False Claims Act Case Involving the New MDM E/M Guidelines,” CJ Wolf, MD, M.Ed., CPC, CPC-I, COC, educator and compliance executive in Salt Lake City, Utah explained what may be the first False Claims Act case involving the 2021 medical decision making (MDM) guidelines.

If your practice could use some expert insight into this case, keep reading, because Wolf also shared his take on how your practice can prevent a similar situation.

Take a Look at the Facts Surrounding the Case

What is the False Claims Act? The False Claims Act is a federal law that makes it a crime for any person or organization to knowingly make a false record or file a false claim to get money from federal healthcare programs such as Medicare and Medicaid. If found guilty, the person or organization might have to pay up to three times the government’s losses plus penalties.

The Case: Two separate qui tam complaints (whistleblower complaints that can be filed under the False Claims Act) sparked an investigation into a Georgia-based Urgent Care chain spanning across four states. Approximately 50-60 clinics were under investigation for allegedly upcoding COVID-19-related encounters under the new evaluation and management (E/M) guidelines. The government ultimately concluded the following:

The “defendants who operate a chain of urgent care clinics in 4 States have defrauded the taxpayer by using the pandemic caused by COVID virus to reflexively claim that they are rendering a higher level of medical service than they are actually providing.”

The case ended up settling for $1.6 million.

Disclaimer: Settlements are not proof of liability or wrongdoing. The case discussed is based on allegations that the government investigated. The information presented is based on what’s public record.

“We have to make judgment calls right? But it’s not until we start seeing settlements that we get a kind of a better picture about how the government’s interpreting some of this [MDM guidelines],” Wolf said.

Go Deeper into The Allegations

The COVID-19 pandemic absolutely saw many justifiably high levels of MDM . “It was terrible, and we saw all extremes. We saw people die. I’m sure if they [the Urgent Care chain] were treating patients that were that severe they probably were billing level fives appropriately, assuming the documentation is right,” said Wolf.

However, there were also many people who had COVID and didn’t know it. There were many people who were asymptomatic and many who, even if infected, didn’t have any comorbid conditions. “Should they be coded the same way as someone who tests positive and dies? Probably not when we’re talking about medical decision making,” explained Wolf.

The allegations: Evidence surrounding this case suggested the chief medical officer for the organization in question mandated that coders submit 99214/99204 (Office or other outpatient

visit for the evaluation and management of an established/new patient, which requires a medically appropriate history and/ or examination and moderate level of medical decision making. When using total time on the date of the encounter for code selection, 30/45 minutes must be met or exceeded.) for any patient suspected of having COVID, regardless of symptoms or negative test. Coders were only to code lower than that level 4 when the patient had no symptoms and no known exposure to COVID.

The problem: Assigning a level is not that simple. Each patient requires an individual decision.

Know How to Prevent This in Your Practice

First, this particular case is in regard to a time when these MDM guidelines were fresh off the presses. We understand more now having worked with them for a few years. However, things are constantly changing, and here is Wolf’s advice going forward:

Strengthen your compliance program: Having a solid compliance program might be the key to not only preventing this kind of problem, but it might keep you in better standing should a situation like this arise. For example, “there are a lot of organizations who are continually doing audits, finding overpayments, and returning them to the government as a part of their compliance program,” said Wolf. This puts you in a position where you can say you’re routinely trying to do the right thing. “Those types of organizations are in a much better position if anything bad really happens,” he continued.

Educate your physicians: “One of the things that I do is I make sure to tell the doctors you are the artist. You paint the picture with your words,” said Wolf. For example, there is a difference between “exacerbation” and “severe exacerbation” when you’re talking about the different elements of the MDM table. “You’re allowed to say ‘severe,’” said Wolf.

Utilize tools to help standardize: Doctors should use and reference additional medical guidelines that can help them justify their decisions. For example, consider the Suicide Assessment Five-step Evaluation and Triage (SAFE-T) guidelines that help providers assess a patient’s suicide risk. There is a measurable scale that clinicians use to appropriately assess, treat, and manage their patients. “Almost every specialty has these types of things,” said Wolf. Another example is the risk estimator found on the American College of Cardiology website. You enter the patient’s information, and it calculates their risk for a cardiovascular event. Referencing these tools in the documentation will help support your claims.

Encourage Coders to Query: While coders shouldn’t be using the tools mentioned above and interpreting information in the documentation, it is appropriate to understand that the tools exist and start a dialogue with the physician. “It’s all about relationships. Ask the questions, and say something like, ‘Can you help me? I recently learned about X, Y, and Z. Can you tell me if that applies here? I think I can code this as ____________’ and establish clear communication with your provider,” Wolf noted.