Will attention by OIG Medicare analysts and CMS dissipate? Not likely. OIG indicates it will continue to focus on the roughly $450 million per year paid out to chiropractors.
The Office of Inspector General, by its OIG Portfolio dated 2018, identified “Fraud, Waste and Abuse” related to chiropractic services as an area of significant vulnerability in the Medicare program.
Specifically, a whopping 43.9% to 54.1% improper payment rate, the highest improper payment rate across all Medicare fee-for-service programs for the period from 2010-2015 was identified, translating to $257 million to $304 million in estimated over-payments to chiropractors.
According to the OIG Portfolio:
Medicare covers chiropractic services for active/corrective treatment for subluxation of the spine (when spinal bones are misaligned) by means of manual manipulation of the spine. Medicare does not cover chiropractic maintenance therapy, however, because it prohibits payment for items or services that are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. Maintenance therapy includes services that seek to prevent disease, promote health, and prolong and enhance the quality of life or to maintain or prevent deterioration of a chronic condition.
To combat improper payments, CMS has incorporated certain preventative controls.
First, the requirement for AT modifier usage for chiropractic services indicating when providing “active/corrective treatment for subluxation,” which is reimbursable when medically necessary. OIG reports the requirement to include the AT modifier “has not been effective in fully preventing payments for maintenance therapy,” specifically because “almost all claims for chiropractic services had the AT modifier regardless of whether the services were for active/corrective treatment for subluxation.”
Of the sampling taken, OIG reports that 90% of services were medically unnecessary and would properly have been classified as maintenance therapy.
One glaring problem with the statistic above, misuse of the AT modifier, is very clearly the sample size selected and referenced by OIG and CMS – only 105 chiropractic services were sampled – collected from only five chiropractors.
Of note, OIG references information given by a biller interviewed working for one of the sample chiropractors, who mentioned that “the computerized program used to bill Medicare for chiropractic services automatically included the AT modifier on the claim form.” While not explicitly identified by OIG as an area of exposure for chiropractors – cloned notes – failure to properly differentiate between visits, progress and medical necessity for continuous care is an easy target area by CMS.
OIG Medicare analysts on services
Second, the requirement to include the initial treatment date on claims “has not ensured that services are adequately supported.”
OIG notes that the requirement for initial treatment date inclusion was intended as a marker for compliance for all documentation requirements – OIG finds that when chiropractors include the initial treatment date there still remains an 86% of services lacking documentation to support medical necessity. Here a sample size of 652 is also taken from only five individual chiropractors — a laughable sample size for reliance — however, what OIG Medicare analysts has selected to rely on.
Third, provider education has “not fully prevented improper payments to chiropractors.” OIG reports it has disseminated materials, including Local Coverage Determinations, as well as Medicare policies and education materials, such as Medicare & You and Your Medicare Benefits. OIF reports, “one contractor states that…the chiropractors in its jurisdiction were resistant to education and not willing to change their billing patterns.”
So, from OIG, three tranches of errors are identified – (1) improper use of AT modifier, (2) failure to document medical necessity despite inclusion of initial treatment date, and (3) failure of provider education. Notably, OIG has acknowledged chiropractors receive less of a checks and balances system with the initial payment system as “[m]ost Medicare claims are processed and paid without a review of the underlying medical records to support the claim…contractors have not widely used medical reviews because…chiropractic services have accounted for less than 1% of the total improper payments in Medicare fee-for-service…chiropractic services have relatively small payments when compared with other Medicare-covered services. The payments for chiropractic services ranged from $29 to $54 in CY 2016.”
With the acknowledgement that reimbursements to chiropractors are “relatively small payments,” we rightfully may ask, why the attention to chiropractic? Will attention by OIG Medicare analysts and CMS dissipate? Not likely. OIG indicates it will continue to focus on the $450 million per year paid out to chiropractors.
To combat fraud in chiropractic reimbursement, OIG did make a number of suggestions to CMS, including establishing limits on chiropractic services, similar to those limits by some private insurers. CMS rejected this recommendation, citing the importance of the patient/provider relationship. Similarly, OIG Medicare analysts suggest establishing a medical review threshold for chiropractic services; CMS did not overtly commit to creating same.
OIG Portfolio takeaways
(1) CMS is on notice that “big brother,” the OIG Medicare analysts are watching for foul play in chiropractic services;
(2) that a higher degree of improper billing across specialties is suspected in chiropractic;
(3) the use of AT modifier is likely not supported for a surprising number of chiropractors; and
(4) education is available.
Now is the time to assess whether your office is billing for maintenance therapy, as opposed to active/corrective treatment, and to address treatment plans and patient engagement and financial responsibility, and to be aware of your specific state laws.
Failing to engage in education and complying with applicable billing procedures and treatment indicators may result in unwanted attention by CMS or OIG Medicare analysts, by way of audit or, worse, investigation.
Don’t wait until it’s too late
Many a time I have seen the audit process, and the investigation process, be too late to recover from. A prepayment review, chart request before payment in each instance, can be an overwhelming administrative hurdle for reimbursement for some solo practitioners. Similarly, a demand for repayment in an overpayment review can be crushing to the bottom line of a practice.
Engage with counsel now to discuss hiring a coding expert and changing documentation practices if you suspect you are not in OIG Medicare compliance. Here, an ounce of prevention surely does save a pound of cure.
Jennifer Kirschenbaum, Esq., serves as the managing partner of Kirschenbaum & Kirschenbaum, P.C.’s healthcare department. She specializes in payor audit defense, compliance, chiropractor-pt-md integration, practice purchases and sales, third-party vendor relationships and general practice representation. Contact her at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.