The federal government has announced it will soon be using “targeted tactics” to audit a select group of chiropractors who exceed rendering 12 visits per year to Medicare patients.
In a report by the Department of Health and Human Services Office of Inspector General (OIG), the Center for Medicare and Medicaid Services (CMS) announced that provisions for oversight include requiring preauthorization of services provided by chiropractors with aberrant billing or high rates of denials. These audits would be performed by the Medicare Fraud Strike Force. This federal investigative arm is situated in Miami and other cities.
Most alarming is the finding that between 40 to 47 percent of all paid chiropractic claims went for “maintenance therapy,” which Medicare does not cover. Even the use of the AT modifier for active treatment (which means that the patient is not receiving maintenance therapy) is being audited. Apparently, the CMS intent of having the AT modifier did not separate “maintenance” therapy from “active” treatment.
The latest statistic shows the average chiropractor renders only eight services per year to each Medicare patient treated. Arguably, exceeding this number may provoke suspicion if other factors exist.
Medicare is finding that the patient may be obtaining chiropractic care from more than one chiropractor at the same time. Chiropractors are urged to ask their patients if they are doing this.
This was a key finding in the OIG report. Medicare pays for three CPT codes for chiropractic care; namely, 98940 (treatment of one to two spinal regions), 98941 (treatment of three to four spinal regions), and 98942 (treatment of five spinal regions). While Medicare only pays for manual manipulation of the spine for subluxation, there is no CPT code for “subluxation.”
The CMS investigation was launched following the finding that nearly $75 million in Medicare payments to chiropractors were for questionable payments suggestive of maintenance therapy. For example, Medicare alleges that 2 percent of all chiropractors are responsible for half of the questionable payments. This means that about 7,200 chiropractors received questionable payments in 2013. Most of those DCs provided 25 services per beneficiary. In contrast, all other chiropractors provided an average of eight services per beneficiary during fiscal year 2013.
Of the four major error categories (no documentation, insufficient documentation, lack of medical necessity, and incorrect coding), the OIG found that improper payment rates attributed to insufficient documentation by year are as follows:
A challenge for chiropractors who want to avoid a Medicare audit—or prevail in one—is that CMS provides no guidance on how to properly document a chiropractic Medicare claim. To boot, there is no precise definition in the Medicare Carriers Manual as to what constitutes a “medically necessary” service.
About 10 percent of all chiropractic claims were for the highest CPT code, 98942-AT. CMS concludes from this that almost 50 percent of such claims are upcoded.
Chiropractors should be aware that upcoding can now be used as the basis of a False Claims Act case, brought by federal or state investigative authorities.
Medicare set high limits for how many hours per day a chiropractor can work and still receive reasonable and necessary payments. After consulting with industry experts, the OIG established a surprisingly high 16-hour-per-day threshold. As that number would allow an unlikely number of services to be provided in a day, chiropractors working anything approaching that number of hours should look carefully at their billings.
You may be wondering how much Medicare pays all eligible chiropractors in a given year. In 2013, CMS paid out $502 million for chiropractic services.
Medicare believes that about 15 percent of your patients are being treated by more than one chiropractor at a time. In your subjective history form, it is recommended you obtain this information from each patient. You can be audited even though you don’t know that your patients are seeing one or more other chiropractors. One defense to this type of audit is your chart indicating that you asked the patient about this issue.
Chiropractors often advertise that they treat complex conditions. This type of promotion can raise red flags. Medicare concludes that almost half of the claims for chiropractic services with CPT code 98942 were upcoded.
Audit defense and prevention
First of all, write good old-fashioned SOAP notes—not diagrams and drawings that only you can understand. Rather, with computer documentation, specify what the patient is subjectively complaining about and link that to your objective findings, including X-rays.
Second, although not well known, deep inside Medicare policy is the requirement that treatment parameters “can be extended” based on medical necessity. This is good preventive advice and it has been used successfully in defending audit cases.
Third, if you have a high percentage of denied claims, you may be targeted for an audit or for post-payment or even prepayment reviews. Don’t be afraid to call the Medicare medical director for your state and ask for a sit- down meeting. Often, chiropractors are too hesitant to ask for help from the federal government.
Fourth, ask for an educational contact from your Medicare representative. The Medicare Carriers Manual permits this.
Fifth, just because your colleagues overbill or upcode and are not caught, theirs is no guarantee you will be so lucky. Be aware of the anti-kickback statute and Stark law, at both federal and state levels.
Last, many private insurance companies use Medicare guidelines for determining what is a necessary chiropractic item or service. Oftentimes, private insurers take your provider number and share this information with CMS. Know your number of private insurance denials.
Because neither the federal government nor most private insurance companies clearly define what a medically necessary item or service is, this can be used as a defense against audits.
Jonathan D. Schuman, Esq., is a former Florida assistant state attorney, a former prosecuting attorney for the Office of General Counsel Medicare Part B, and a 20- year private practitioner defending providers in Medicare and private insurance audits. He has defended chiropractors in 37 states and published more than 22 articles on how to avoid or prevail in a federal or private insurance audit. He can be contacted at firstname.lastname@example.org or through jdschumanlaw.com.