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CMS « The Central Line

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Why is the Government Targeting the Most Charitable Physician Specialty?

Why is the Government Targeting the Most Charitable Physician Specialty?

I don’t get it.  I do not understand why the US government has decided to paint a target on the backs of physicians who, according to the AMA, provide more charity care than any other specialty, in a program that uses so-called hired gun auditors to recoup over-payments in Medicare’s fraud and abuse prevention strategy.  These are physicians who give away, on average, more than $140,000 a year in unreimbursed services to the poor and uninsured (4-10 times more than any other specialty), and serve a larger proportion of Medicaid and under-insured patients than the vast majority of other physicians.  These charitable physicians are willing to treat everyone, regardless of their insurance status or ability to pay, day or night, Sundays and holidays, whether the patients are upstanding citizens or the disheveled homeless.  These docs provide care to everyone who asks to be treated or comes to their door, even if they are intoxicated to near stupor, or ranting obscenities, or smell like a garbage dump, or shed deadly viruses in an epidemic, or are soaked in toxic chemicals released in an accidental spill or a terrorist attack.

None of these physicians are engaged in a criminal enterprise to cheat Medicare and the tax payers out of millions of dollars for care they never provided, or using stolen or purchased patient IDs to submit fake claims, or billing for tests not performed, or charging for equipment they never ordered.  In fact, these specialists work almost exclusively in hospitals that carefully screen their credentials, and in medical groups that have some of the most extensive claims coding and billing compliance programs in the health care industry.  Nonetheless, the government has selected these physicians for auditing under the Medicare Recovery Audit Contract (RAC) program by focusing on the evaluation and management (E&M) CPT codes that are used almost exclusively in claims submitted to Medicare by these specialists.  Other E&M and procedure codes are also being targeted for audits by these RACs, but these other codes are widely  used by many other physician specialties.

There is no question that fraud and false claims are a serious problem for Medicare, and cost taxpayers hundreds of millions of dollars every year.  For every $1 the government spends on these RACs, it gets back $40.  I am all in favor of dealing a heavy blow to those who try to cheat the system, provided the adjudication process is fair and the focus is on activities that are clearly in violation of the rules.  There are those who believe that hiring these private audit contractors on a contingency basis (based on the amount of overpayments they find) is like paying a bounty hunter to bring in a possible suspect dead or alive, especially since many claims that the RACs deem overpaid are frequently found to be ‘not guilty’ on appeal.   The rules that are applied to these claims are, unfortunately, not always clear and concise:  E&M coding in particular is about how sick the patient is, and how complicated or difficult the medical decisions are to make.  In other words, medical coding is an art, not a science, and using an auditor that is financially incentivized to interpret these rules in the most aggressive way, with the threat of big penalties and forfeitures, is like writing a law that stiffs you with a big fine for ‘parking too close to a fire hydrant’ without specifying how close is too close, or paining the curb red.

I don’t doubt that a few of these ‘charitable physicians’ stretch the coding rules a bit, or even overcharge for their services.  It happens, but it’s not the rule, by any means.   I have talked to quite a few of these particular specialists who have experienced RAC audits.  They usually consider themselves to be good at documenting their care, who employ careful and conscientious claims coders for their billing service.  They come away from the RAC audit experience angry, frustrated, baffled, fearful, indignant, and depressed.  These physicians don’t go out of their way to intentionally up-code their claims, or un-bundle them (charge separately for items that should be covered under a single charge), and they take pride in their willingness to treat patients few other physicians are willing to see, regardless of the patient’s ability to pay.   They are all overworked, sometimes underpaid, subject to stress burnout, and challenged by a seemingly impossible mission; and they do this for over 130 million patients in the US every year.  These docs just don’t understand why their government would go out of its way to paint a target on the backs of emergency physicians.

This post also appears in The Fickle Finger  www.ficklefinger.net/blog/

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CMS and Washington State Conspire to Take Emergency Physician Services Illegally

In response to a suit by emergency physicians and hospitals in Washington State that led to a judicial injunction against the State’s plan to restrict Medicaid payment for ED visits, the State of Washington’s Health Care Authority has conspired with CMS to require emergency physicians to provide services to Medicaid enrollees for free. Emergency physicians are required by law (EMTALA) to provide medical screening services (and stabilizing care) to anyone who presents to an emergency department, and these physicians are subject to severe fines and penalties if they fail to provide these services.

CMS is well aware of this obligation, yet this agency has notified the State of Washington that the Medicaid program may ‘proceed under its existing authority to pay for only medically necessary Emergency Room visits’ based on a list of so-called ‘non-emergency diagnoses’ submitted on claims to the Medicaid program in that State (and presumably, other states that want to use the same process). Thus, the federal government is requiring emergency physicians to perform a medical screening evaluation (which can be as simple as a brief history and exam, or as complicated as a full and thorough evaluation to rule out subtle but potentially life threatening medical conditions), but is telling federally-funded state Medicaid programs that they need not pay the emergency physician for this service if it turns out the patient does not have a medical emergency, based on this list of final diagnoses. When a government mandates a service from private individuals, and refuses to pay for that service, this is tantamount an unconstitutional and illegal taking of services, and is surely a violation of the physician’s rights.

Curiously, CMS does not allow Medicaid Managed Care Plans in any state to use a list of final diagnoses to preclude payment to emergency physicians or hospitals for these screening and stabilization services. Many states explicitly require payment for medical screening services even when no medical emergency is detected. It is pretty clear that Washington State’s HCA is pushing back hard on emergency care providers for having the gall to use the courts to defy their authority. Resorting to this kind of abusive policy, knowing that it is likely to undermine the financial viability of the safety net and the ability of emergency care providers to meet the needs of all of Washington’s citizens, goes beyond the pale.

The list of so-called non-emergency diagnoses that WA HCA has come up with provides a clear indication of the extent to which this agency will go. This list includes such diagnoses as: hyposmolality (which can cause coma), hemopthalmos (hemorrhage in the eye), foreign body in the hand (often causes infection), multiple contusions (as in getting a beating), pregnancy, etc. Even if every single one of these diagnoses can be managed in a physician’s office, it is important to understand that to get to these diagnoses, it is often necessary to rule out other conditions that may look very similar, but are far more serious, even life-threatening. Performing a cursory medical screening exam in an ED is a prescription for a very expensive EMTALA violation, a hospital’s loss of the right to treat Medicare patients, and a malpractice suit that can end a career. Requiring emergency care providers to perform these evaluations on Medicaid enrollees, and then refusing to compensate them for the effort (and the risk), is just reprehensible.

This post was also published in The Fickle Finger (www.ficklefinger.net/blog/)

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Headlines and Updates

CMS Scam Alert

Officials at the Centers for Medicare & Medicaid Services (CMS) said recently that scam artists have been contacting physicians’ offices by fax, claiming to be a Medicare carrier or Medicare Administrative Contractor. The fax instructs office personnel to respond to a questionnaire and provide an account information update within 48 hours to prevent an interruption in Medicare payments. The fax may have the CMS logo and/or the contractor logo to enhance the appearance of authenticity.

The CMS advises physicians who have received such a request to contact their Medicare contractor immediately. Medicare providers should only send information to a Medicare contractor using the address found in the download section of the CMS.gov website 

Follow the ACEP Board Meeting on Twitter

The ACEP Board of Directors will met in Dallas on June 23 and 24. And for the first time, updates will be sent live from the meeting by Twitter. Follow the ACEP Board meeting at Twitter.com/ACEPNews.

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