Changes to Program Integrity Manual May Benefit Medicare Providers

These days, if you are a Medicare provider, the phrase “lack of medical necessity,” most likely, makes you twitch with anxiety. That is because, for the past five years, Medicare auditing contractors (i.e., ZPIC, MAC, and RAC) have denied more Medicare Parts A and B claims for “lack of medical necessity” than for any other reason, thus costing providers hundreds of millions of dollars in free services and products.

Importantly, claims denied for “lack of medical necessity” are rarely deemed fraudulent, but instead considered “technical violations.” The reason more claims are denied for “lack of medical necessity” than anything else is due to lack of standardization in the way providers document medical necessity in their progress notes. Specifically, for the following reasons, it is easy for Medicare auditing contractors to deny claims:

  1. Substantiating medical necessity under Medicare’s Local Coverage Determinations (“LCDs”) may require providers to address dozens of issues in their progress notes;
  2. Providers must elaborate upon each one of the issues in writing;
  3. Elements to substantiate medical necessity under the LCDs are continually modified, such that no provider can keep track of what issues are necessary to address in order to establish medical necessity;
  4. Elements to substantiate medical necessity under each LCD are largely subjective;
  5. The LCDs does not require providers to substantiate medical necessity in their progress notes in a specific manner;
  6. Medicare has not favored the use of checklists, templates or attestations to assist providers in documenting medical necessity;
  7. If a provider does not adequately address one of the dozens of issues necessary to substantiate medical necessity under an LCD, the claim may be denied; and
  8. Each provider type (i.e., physician, HHA, IDTF, DME, hospice) documents medical necessity in their progress notes in a different manner.

But, help is on the way!

On December 7, 2012, the Centers for Medicare and Medicaid Services, or CMS, added Section 3.3.2.5 to Chapter 3 of the Medicare Program Integrity Manual, or PIM, (Pub. 100-08), which significantly aids the way in which providers may supplement the documentation of medical necessity. Entitled “Amendments, Corrections and Delayed Entries in Medical Documentation,” Section 3.3.2.5 (which became effective January 8, 2013) states:

Occasionally, upon review, a provider may discover that certain entries, related to actions that were actually performed at the time of service but not properly documented, need to be amended, corrected, or entered after rendering the services.  When making review determinations the MACs, CERT, Recovery Auditors, and ZPICs shall consider all submitted entries that comply with the widely accepted Recordkeeping Principles…

According to the Recordkeeping Principles, amendments, corrections or addenda must:

  1. Clearly and permanently identify any amendment, correction or delayed entry as such
  2. Clearly indicate the date and author of any amendment, correction or delayed entry, and
  3. Not delete but instead clearly identify all original content.

This provision is noteworthy because it is the first time that CMS has officially allowed providers to include attestations in the medical record to account for clinical issues not adequately documented in the progress notes. When considered alongside Section 5.7 of the PIM, this means that as long as an amendment or correction does not, by itself, provide sufficient documentation of medical necessity, a physician’s attestation may be used to help substantiate a patient’s need for a particular service or product.

Additionally, on March 15, 2013, CMS added Section 3.3.2.1.1 to Chapter 3 of the PIM.  According to Section 3.3.2.1.1(B), which is retroactively effective as of December 10, 2012, “CMS does not prohibit the use of templates to facilitate record-keeping” (emphasis added).  This subtle, yet significant announcement, means that providers may now use templates (defined in Section 3.3.2.1.1(A) as “tool/instrument that assists in documenting a progress note”) to standardize the way in which they document a patient’s medical necessity in their progress notes.

Use of templates may help providers eliminate the subjectivity in documenting medical necessity, and thus eliminate a significant number of claim denials.  It is important to note, however, that templates must be created in a way to allow providers to document all relevant elements necessary to establish medical necessity under a specific LCD.  Templates cannot merely contain check boxes, predefined answers, limited space to enter information, etc.  According to Section 3.3.2.1.1(B) these types of templates “often fail to capture sufficient detailed clinical information to demonstrate that all coverage and coding requirements are met.”

Posted in Expert Opinions, Government/Law.