Dr. Mark Studin has been an associate clinical professor at the State University of New York at Stony Brook, Department of Health Science and Technology, where he taught prospective health care administrators medical coding. He has also consulted with numerous hospitals and hundreds of chiropractors, medical doctors, podiatrists and dentists over the last twenty years on documenting, coding and compliance issues and has been retained as an expert to help defend many doctors who have been formally charged with fraud, Federal RICO and utilization abuse. In an interview with The American Chiropractor Magazine (TAC), Dr. Studin presents his case for properly preparing your practice for an audit.
TAC: What is a retrospective review?
Studin: A retrospective review is when an insurer pays your claims for care for any period of time and then audits you to see if your records match the claims paid during that period. It has been reported that up to $90 billion is the estimated annual amount in fraud losses, with $20 billion in "honest errors" by doctors. The carriers are going after both categories aggressively. Whether the error is honest or not, the results are the same. The carrier wants the money back. If it is determined that fraud was perpetrated, the carrier has the right to refer the case to the authorities for prosecution or sue under the criminal code vs. the civil code. The difference to a doctor is paramount.
TAC: What triggers a retrospective review?
Studin: In most cases, a computer triggers the audit, as the program is written to recognize patterns of care. In addition, a "whistleblower," meaning a disgruntled employee or patient, can alert the carrier to what they believe are discrepancies in billing practices. In addition, if a doctor does the same (or close to the same) thing for every patient, this can trigger an audit. A few examples would be:
1. Utilizing similar diagnosis for every patient;
2. Never changing diagnosis during care;
3. Rendering the same, or close to the same, number of visits;
4. Utilizing the same modalities;
5. Never changing the treatment plan;
6. Rendering extensive diagnoses for minors.
These are a few parameters. However, the insurer’s intent also dictates an audit. One of the largest chiropractic managed care companies in the nation, at a recent meeting in Minnesota, just announced that they were beginning to perform retrospective audits. If the corporate policy is to ensure compliance with their panel of doctors as a fiduciary responsibility to those they insure, this is a responsible action and a sound corporate policy. However, if their goal is to recoup 10 percent of their payouts using the retrospective audits, this becomes a predatory policy and the threshold for compliance becomes much lower. As a result of the lowered threshold for compliance, a doctor can be asked to repay, sometimes with interest, a significant amount of money.
TAC: How is the amount to be repaid determined?
Studin: Here’s the frustrating part for doctors. After spending countless hours and significant resources to get paid 30 or 40 cents on the dollar, they now get a demand to pay back an exorbitant amount of money.
Insurers use different methods to determine the amount. Some go case-by-case and others extrapolate the amount. A carrier can request as few as six or seven charts and determine that, in those charts, there was a discrepancy of one service not being billed and/or documented correctly. As a result, they can extrapolate that the doctor was in the program for five years and treated fifty patients per year, with an average of thirty visits per patient.
Let’s do the math:
Service "A" = $20 reimbursed
X 50 patients per year
X 30 visits per patient
X 5 years
$150,000 to be repaid to the carrier
While this seems a large number, the truth is most retrospective reviews have much larger numbers and, at the end of the day, are usually repaid to the carrier by the doctor. The carrier always holds the specter of litigation for fraudulent billing over the doctor’s head and, when the doctor realizes the cost of defending such litigation, a deal is cut with the carrier and paid.
TAC: How would a doctor know if his/her office is being audited for a retrospective review?
Studin: The carrier will send the doctor a letter requesting files to review in one of two scenarios: they will request for you to copy and mail them your complete records or they will inform you of a planned site visit and ask you to prepare files for them to review upon arrival.
TAC: What typically happens during a site visit?
Studin: Nothing that involves the staff or the doctor other than surrendering the records for review. In some cases, such as Health Insurance Plan (HIP) of New York, they bring a scanner to the office and copy every paper in every document to take back with them. In many cases where the investigator does a site visit, if they do not find what they are looking for, they request more and more files until they find something. Remember, in certain cases, the investigators are rewarded for finding reimbursable issues and often will not stop until they find something to ensure their job security and increased income.
Two days ago, I received a phone call from a doctor that had a managed care company in his office reviewing charts. After the eleven charts originally requested by the carrier to be reviewed were completed, the investigator asked the doctor for another eleven charts in the middle of a very busy practice day. The doctor, not knowing what to do, called me, and the solution was to deny the carrier the right to disrupt the office, but instead to request in writing any further charts for review. That afternoon, the doctor received a fax with the formal request for the next eleven charts. The carriers will often not stop until they find something, as it is always about the money.... Your money, and they want it from you!
TAC: What happens after the site visit?
Studin: More than any doctor realizes. The files inspected or copied are reviewed and scrutinized for certain standards that fit into a formula created by the carrier. Often the carriers have other doctors or statisticians reviewing the charts to determine if the records match the bills sent and for clinical necessity issues. Depending upon the carrier’s corporate policy, triggering a demand for repayment will determine the level of aggressiveness with which they will go after you and to what standard they will hold you.
TAC: Are the carriers getting more aggressive?
Studin: Yes. In fact, the carriers are now suing the doctors under Federal RICO, which is a civil charge carrying treble damages. Meaning, if the carrier prevails, the doctor has to pay 3-1 back to the carrier, which is the reason the carriers are doing it in the first place. The bigger problem is these can be referred to criminal charges if fraud is determined and the doctor stands the chance of not only losing money, but having a criminal record and a high probability of losing their license if found guilty.
TAC: What are the carriers looking for, specifically, in an audit that will be cause to request repayment?
Studin: The first thing that a doctor must ponder is, "What do I get paid for?" When I pose that question to doctors, the answers range from an adjustment to X-rays to therapy to evaluations, and the real answer is, "None of the above." Doctors only get paid on what is written down on the Health Care Financing Administration (HCFA) form and they get either to keep that money or have to give it back, depending on what is written in their notes. These are the facts and are non-negotiable. A doctor’s rhetoric will not hold off a predatory carrier who wants to make a windfall profit based upon poor notes.
Specifically, these are a few of the areas the carrier will make a claim to get re-paid:
1. High number of visits without timely re-evaluations
2. Diagnoses that do not cross link with Current Procedural Terminology (CPT), such as:
a. Cervical diagnosis and lumbar X-rays and
b. Cervical and thoracic diagnosis with cervical, thoracic and lumbar treatments
3. Billing for services not documented
4. Treatment of undiagnosed areas
5. Over utilization of modalities with no clinical indication
6. Ordering of tests with no clinical indication
7. Treatment of any part of the body without a full examination documenting pathology in the specific area being treated
8. Up-coding on evaluation and management (E/M) codes without the documentation reflecting the level billed
TAC: What can a doctor do to protect his/her practice?
Studin: First, ensure that you are documenting to the standards of practice, as prescribed by the Board of Chiropractic in the state where you practice.
Second, according to Peter Birzon, Esq., an experienced and highly respected health care lawyer and former federal prosecutor, retain a compliance auditing company and have your records reviewed. Mr. Birzon goes on to explain that, should errors be found that are considered fraudulent, a voluntary refund should follow. However, if there are errors that reflect poor documentation and not fraudulent issues, the corrections need to be made in the practice and documented. In addition, this will take any issue found from a potential felony charge to a misdemeanor, should a doctor have to defend his/her billing practices.
As a note: I urge the profession to listen to a 44 minute conversation with Mr. Birzon that is free at www.TeachChiros.com..
Click on "Audio Library" and find the file at the beginning of the library. This conversation goes into depth about how to "Bullet Proof" your practice on compliance issues and is a MUST for every practitioner.
TAC: What is the cost for a practice audit?
Studin: Compliance companies range in fees that go from $500 to $25,000 for a small practice. I, personally, deal with the company at the $500 range and their work is outstanding. You do not get as comprehensive a report as the more expensive companies, but you get everything you need to bring your documentation up to a compliant standard. Many of the doctors I work with have utilized the compliance company and, with every doctor I have worked with, the compliance company revealed areas in which the doctor needed to make corrections. This is what Mr. Birzon referred to when speaking about "Bullet Proofing" your practice.
TAC: What should doctors do if they receive a request for records, signifying a retrospective review?
Studin: According to Stephanie Jones, CPC-EMS, Vice President of Member Services of the American Academy of Professional Coders, knowing your rights is critical. The following should be considered:
1. A doctor should be fully aware of his or her rights and responsibilities prior to responding to a request for medical records in retrospective overpayment recovery audits. Contractual agreements prompt payment laws, payer settlement agreements, and other statutes may govern when a retrospective audit and overpayment recovery is allowed to occur.
2. In some cases, a retrospective audit is not allowed without suspicions of fraud or advance notice to a physician at the time of payment. Many states have laws that will only allow overpayment recovery on claims billed within a limited time frame. Other states have rules that govern how long a physician has to produce the records, appeal rights, and when repayment by deduction from future claims is permissible.
3. There may be specific rules regarding who is allowed to conduct the audit, where only a practicing physician of the same specialty is allowed to make overpayment determinations. From a practice expense aspect, physicians may be allowed to bill a payer for producing records.
4. The rules are different based on governing laws, and doctors practicing in different states may have very different rights and responsibilities. Fully understanding physician rights within a state is the key to ensuring an audit is properly and fairly conducted.
5. When a payer returns unexpected and unfavorable results, the doctor should carefully examine what caused the level of service to be down-coded. Due to problems of subjectivity in the audit process, a doctor may be able to overturn audit results with valid and reasonable debate.
6. There are times when two separate audits of the same service produce different results and neither party can technically be proven "wrong." Correct interpretation in these cases requires a sophisticated understanding of the requirements of code selection, citable references, and logical argument. These discussions often have the expanded positive result of improvements in future payer policies and physicians who are better informed.
Should you have undergone the audit process and the carrier ruled against you, I strongly urge that you retain counsel to represent you in the negotiation with the carrier. Here is another mistake that doctors make: they hire or retain counsel that is the family lawyer or the lawyer of a friend. That can be a fatal mistake.
You should only hire a health care lawyer that has experience in negotiating and dealing with insurance companies. Too many doctors come to me after the fact and the result is always $10’s or $100,000’s in additional money that needs to be spent to undo the mistakes of the inexperienced lawyer in this field of law.
TAC: How many doctors have you worked with over the last few years that have had retrospective reviews?
Studin: Although this is termed "retrospective reviews," under most circumstances, I believe this is "legalized extortion" and often disgusting. For the average doctor—who sacrifices a large portion of his/her life to help the sick, who puts off family and personal interests and other careers to be in professional school, incurs large debt and who is available at 4 AM for a sick patient—to have to endure this, if it is an honest error and not fraudulent, should be criminal for a carrier to go after the doctor at this level.
To answer your question directly, there have been too many and they are all over the country. The carriers that have requested the reviews for the doctors I have personally worked with recently are Medicare, Allstate, State Farm, Encompass, Aetna, Blue Cross/Blue Shield and HIP. That shows you the pattern is not limited to one financial class. Therefore, you cannot say, "Because I don’t take care of Personal Injury patients, I am immune to a retrospective review." All carriers are using this as a method to either limit fraud or as a corporate windfall at the expense of the doctors.
Dr. Mark Studin is the President of CMCS Management which offers the Lawyers Marketing Program, Family/MD Marketing Program and Compliance Auditing services and can be contacted at www.TeachChiros.com.