The letter-sent to the American Hospital Association, Federation of American Hospitals, Association of Academic Health Centers, Association of American Medical Colleges and National Association of Public Hospitals and Health Systems-sent a shockwave through the industry. HHS said it would step up monitoring of claims for any inappropriate activity, including "cloning"-or copying and pasting certain portions-of medical records from one visit to another. "We will not tolerate fraud," it said.
The topic of upcoding-the practice of assigning a higher level of service to physician work or a higher degree of severity to a patient diagnosis than is warranted-is a long-time industry discussion point, one that predates electronic health records. Yet, many industry experts contend that while upcoding may happen, it is more a result of complex billing rules than anything else.
But linking EHRs to fraud? That was a charge that many in the industry find hard to swallow. Ironically, these experts say that any increase in reimbursement is not due to fraud, but rather due to the better documentation that EHRs enable. Yes, copy and pasting of records occurs, they acknowledge. Yet the practice by itself is not necessarily borne of malicious intent-which many contend is the litmus test for upcoding-as much as it is maximizing the very technology the government is attempting to incentivize through its meaningful use program. Nonetheless, coding and billing experts cite several steps that providers can take to work toward compliance with the thicket of reimbursement rules.
Perplexed and perturbed
Money Atwal is one industry leader who admits to being both perplexed and perturbed by the HHS letter (CMS did not respond to written questions about the letter). He's well-situated when it comes analyzing the link between EHRs and billing-Atwal serves as regional CFO and CIO for the Hawaii Health Systems Corp., which runs three hospitals, including Hilo Medical Center, a 276-bed facility. The three hospitals receive about 44 percent of their payments from CMS with the remainder coming from several commercial plans. "I'm not surprised that overbilling is being discussed," he says. "At HHS, they just see that Medicare reimbursements are increasing substantially. But you don't need an EHR to game your bills. I would like to see HHS factually support its contention."
Like many of his peers, Atwal cites improved documentation facilitated by EHR technology as driving the increased reimbursement. Essentially, the argument goes, physicians and hospitals alike have long left money on the table by not documenting their work. Once EHRs are implemented, documentation capture-and charge capture by extension-improves, sometimes dramatically.
"Before the EHR, we used Post-It notes and would rely on nurses to manually document what they did," Atwal says. "We missed charges. There was huge variation. Now, with an EHR, it's easier to track. When the nurse hangs an IV bag, we can document the start and stop times. We can alert the nurse they did not chart the bag. In the manual world, we did not even know if IV bags were being given or documented."
That's just one small example of how EHRs can help with better charge capture, Atwal says. His hospitals are using an integrated system, from Meditech, for clinical documentation and billing on both the inpatient and ambulatory sides of the organization. With some 40,000 annual emergency department visits and 10,000 inpatient stays, the three hospitals gross about $325 million annually-a number that has edged up with the EHR in place. "We have seen an increase in charge capture, which led to higher reimbursement-about $1 million more per month in cash," he says.
Atwal monitors the cash flow closely at the three hospitals, hiring outside consultants to do random samplings of claims to make sure everything is compliant with billing rules and regulations. He says the hospital takes compliance very seriously-erring on the side of caution if anything. The hospitals employ seven coders who assign billing levels based on documentation in the EHR. "We review charts across the clinics on the professional side, the inpatient side and the ED," Atwal says. "We want to make sure there's no 'rogue coder' " inappropriately inflating claims."
If anything, the hospital may still be under-billing for its services, Atwal contends, due in part to being cautious about the long arm of the law that casts a shadow all the way from Washington, D.C. to Hawaii. "We identify lost opportunities. We have not maximized our coding. We have not coded consistently to what the diagnosis is and that is because of fear of retribution and penalties." Atwal estimates that the health system is still losing "hundreds of thousands" by not documenting IV injections as thoroughly as it could. "Even with the EHR, the biller is only as good as the documentation given to them."
Few would argue with Atwal's contention that EHRs yield better reimbursement. "EHRs do not facilitate overbilling per se," says Sue Bowman, senior director of coding policy and compliance at the Chicago-based American Health Information Management Association, whose 64,000 members include coders and billers. "EHRs help produce better documentation so the coding should be better too. How much increase in reimbursement is due to fraudulent documentation versus better documentation is an unknown."
Bowman acknowledges that EHR set-up can lead to the appearance of upcoding, but says that deliberate over-billing is a rarity. "There are concerns about EHR features and the way they are used that may inadvertently cause problems in patient care and billing," she says. "The ease with which information can be copy and pasted from other parts of the record, or from different patient records, can inadvertently make the patient look more complex or suggest a more comprehensive physical exam than was true for that specific patient."
The pitfalls, however, have not been lost on the compliance-sensitive industry, Bowman says. "Providers and hospitals are stepping back, establishing policy and procedures. They are working with EHR vendors to put in some restrictions so these features cannot be indiscriminately used-the copy and paste features are not by themselves inappropriate, but if they've used excessively or incorrectly it can cause unintended consequences."
Bowman also agrees with Atwal that under-billing was routine prior to EHR deployments. "There has been a lot of under-billing in the past due to incomplete documentation," she says. "But there are other variables driving up reimbursement. Patient conditions are becoming more complex. Just because reimbursement is higher doesn't mean it is wrong or fraudulent." She calls on HHS to conduct more research in the matter.
The HHS letter caused many in the industry to bristle. "The letter was an unfair assessment of how the vast majority of physicians are utilizing EHRs," says Lyle Berkowitz, M.D., medical director of information technology and innovation at Northwestern Memorial Physician Group, a Chicago-based primary care group practice of 120-plus physicians. Since 2002, the group has been documenting on an ambulatory EHR system from Cerner, with billing done via interface to another system. "EHRs do indeed enable more appropriate coding. But just because that may result in higher coding, it should not be assumed to be upcoding."
In his primary care practice, physicians see many patients with multiple chronic conditions, Berkowitz says. And thanks to the efficiency of the EHR, they are able to accomplish more in a single visit, heeding alerts and reminders that a patient may be due for a test or evaluation not related to that particular visit. The work performed at the practice is categorized under an "evaluation and management"-or E&M-coding system which assigns individual visits to a certain level, with 1 being the lowest and 5 reserved for the most difficult cases. Assigning the right level is driven by a complex, multi-tiered formula that includes the extent of the exam given, the history reviewed and overall medical-decision making.
"E&M codes are specifically designed to help account for the cerebral 'thought work' we do," Berkowitz says. "If in 15 minutes we can help a patient control their diabetes, hypertension, cholesterol and heart diseases, we should be appropriately compensated. It's very hard work." Berkowitz adds that if the same patient winds up needing heart surgery, a surgeon would be paid much more for their time. Future reimbursement models will begin to even out the disparities, he predicts.
Because primary care physicians can do more in a visit with an EHR in place, their coding levels may, appropriately, go up, Berkowitz says. "In the old paper-based system, if a patient came in with an ankle problem, we would often deal just with that one issue and tell them they need to come back. Now the EHR allows us to be more efficient by allowing us to address more issues in the same amount of time. If a patient with ankle pain is also due for diabetes and hypertension follow-up, we can take care of that right then. We address multiple issues in one visit and document all that. In the paper world, I might do two 'Level 3' visits and now I do one 'Level 4' visit. So I'm saving the government money."
Part of the efficiency of the EHR rests indeed in its ability to bring forward previous charts and findings. For example, the chart automatically updates lab values, vital signs and test results to show the most recent findings during the encounter. "We do pull forward the old note, but we update and edit it," he says. "In the paper world, it was easy to flip back and look at old charts. In the electronic world, think of the note as an evolving Wiki. I can see what I did last time and document what I am doing today."
Berkowitz adds that his practice's EHR note system includes a clearly marked area called "Problems Below Not Addressed." Any issues not taken care of during a visit are denoted in that section to clarify that the encounter did not cover it. This helps the practice avoid billing for services not rendered. It also helps with the next visit by identifying potentially lingering issues. "We are very clear about what we do and do not address" during an encounter, he says. "But we also want to ensure we have a holistic view of the patient's medical issues so we don't miss anything either."
Some experts say that the key to proper billing rests in the way the EHR is set up in the first place. "The implementation of EHRs can pose some risk due to their ability to let users copy and paste notes or auto-populate data fields," says Mary LeGrand, a consultant with Karen Zupko and Associates, a Chicago-based firm which advises on proper coding and billing practices. "The strength of the EHR is that it can capture work not previously captured in written documentation. That's of significant value. EHRs themselves are not 'bad' in this regard. It comes down to the implementation."
Pulling an entire note forward does pose risks, LeGrand says. If an identical exam template shows up in subsequent notes and the findings are identical, it raises two questions, she says. First, is there medical necessity to do the same exam in every visit? And second, were the findings really identical, or were they just auto-populated results?
LeGrand suggests that practices conduct baseline audits of service levels prior to EHR deployments. That can shed insight into the billing levels before and after the implementation. Moreover, the auto-population feature needs to be controlled by physicians, she says. If it can't be modified easily, it should be shut off, she recommends.
But shutting off the auto-population feature may undermine the very efficiency a practice is seeking with the technology in the first place.
"Physicians say if they turn off the feature and can't easily import data from previous encounters, they have lost the value of the EHR," she says. "You need a mix. You have to use information that was in the chart. Auto-population is OK as long as you customize each visit."
Customizing each note with each encounter is a key to avoiding fraud charges, adds Deborah Robb, director, physician Services, at Trust HCS, which provides coding consulting and outsourcing services. Robb agrees that increases in reimbursement have been driven largely by improved documentation offered by EHRs.
But she cautions against the practice of copy and pasting notes, lamenting the fact that some providers are even encouraged to use the practice as part of their hospital documentation. "How can you justify medical necessity when a note is identical to yesterday's?" she asks. "Every note should stand on its own."
The problem of cloned notes typically surfaces more in the hospital setting than a clinic setting, Robb says. And even though coders may assign the codes, based on the documentation provided by the physician, they can't always tell if a note is virtually identical to its predecessor. But pulling forward certain elements is important, she adds. "Hospitals need to develop policies about what are the acceptable parameters" for copying past notes, she advises, particularly when it comes to ancillary services, lab values and radiology results. "You should not have to rewrite what the lab did. That is valuable to pull forward. At the same time, compliance departments should say what is acceptable."
For many, the very complexity of health care billing undercuts any assertion that providers are over-billing. In its response letter to HHS, the American Hospital Association decried the lack of coding standards. "Since April 2000, hospitals have been using the American Medical Association's Current Procedural Terminology evaluation and management codes to report facility resources for clinic and ED visits," the AHA wrote. "Recognizing that the E/M descriptors, which were designed to reflect the activities of physicians, did not adequately describe the range and mix of services provided in hospitals, CMS instructed hospitals to develop internal hospital guidelines to determine the level of clinic or ED services provided. In 2003, the AHA and the American Health Information Management Association recommended that CMS implement national hospital E/M visit guidelines based on the work of an independent expert panel comprised of representatives with coding, health information management, documentation, billing, nursing, finance, auditing and medical experience.
"In the 2004 and 2005 OPPS rules, CMS stated it would consider national coding guidelines recommended by the panel. However, to date, CMS has not established national hospital E/M guidelines."
The AHA response is on target, says Robb, the consultant. "We don't have a standard health care system," she says. "Every facility develops its own policies, compliance and implementation. I would never just state that providers are up-coding."
For Robb, the root of physician confusion lies in the difference between hospital facility billing and physician professional service billing. Hospital reimbursement is largely driven by the DRG system, which assigns a global payment for facility services based on the patient's diagnosis and severity. In contrast, physician work is reimbursed in a separate channel that measures work output and complexity of decision-making in the evaluation and management of patients. Thus the rules and implications of such practices as copy and pasting may have entirely different ramifications, she says. "You have such diversity between what a hospital can do and a clinic," Robb says. "Physicians are getting a lot of mixed signals. What is OK to do on the physician side may not be on the hospital side. There are a lot of dynamics in play."
Some observers took the HHS warning letter in stride, saying it was as much politics as policy in play. "With all the attention on the deficit, the letter let CMS show it's being tough on Medicare fraud," says Richard Temple, national practice director, IT strategy, at Beacon Partners, a consulting firm. "It was a dramatic flourish and not indicative of rampant fraud." Nonetheless, Temple offers one piece of advice to help sidestep any dubious billing.
"Use data analytics behind the scenes to analyze how frequently successive visits are duplicative or virtually duplicative of one another," he says. "That will allow you to proactively zero in. And then demonstrate to providers you have that kind of tool."
HHS FIRES A SHOT
Following is the full text of the letter HHS Secretary Kathleen Sebelius and Attorney General Eric Holder sent to five hospital associations warning them against using electronic health records to "game" the billing system. The letter was addressed to the American Hospital Association, Federation of American Hospitals, Association of Academic Health Centers, Association of American Medical Colleges and National Association of Public Hospitals and Health Systems:
"As leaders in the health care system, our nation's hospitals have been at the forefront of adopting electronic health records for use in coordinating care, improving quality, reducing paperwork, and eliminating duplicative tests. Over 55 percent of hospitals have already qualified for incentive payments authorized by Congress to encourage health care providers to adopt and meaningfully use this technology. Used appropriately, electronic health records have the potential to save money and save lives.
"However, there are troubling indications that some providers are using this technology to game the system, possibly to obtain payments to which they are not entitled. False documentation of care is not just bad patient care; it's illegal. These indications include potential 'cloning' of medical records in order to inflate what providers get paid. There are also reports that some hospitals may be using electronic health records to facilitate 'upcoding' of the intensity of care or severity of patients' condition as a means to profit with no commensurate improvement in the quality of care.
"This letter underscores our resolve to ensure payment accuracy and to prevent and prosecute health care fraud. A patient's care information must be verified individually to ensure accuracy; it cannot be cut and pasted from a different record of the patient, which risks medical errors as well as overpayments. The Centers for Medicare and Medicaid Services is specifically reviewing billing through audits to identify and prevent improperly billing. Additionally, CMS is initiating more extensive medical reviews to ensure that providers are coding evaluation and management services accurately. This includes comparative billing reports that identify outlier facilities. CMS has the authority to address inappropriate increases in coding intensity in its payment rules, and CMS will consider future payment reductions as warranted.
"We will not tolerate health care fraud. The President initiated in 2009 an unprecedented Cabinet-level effort to combat health care fraud and protect the Medicare trust fund, and we take those responsibilities very seriously.
"Law enforcement will take appropriate steps to pursue health care providers who misuse electronic health records to bill for services never provided. The Department of Justice, Department of Health and Human Services, the FBI, and other law enforcement agencies are monitoring these trends, and will take action where warranted. New tools provided by the health care law authorize CMS to stop Medicare payments upon suspicion of fraud and to mine data to detect it in the first place. These efforts have contributed to record-high collections and prosecutions. Prosecutions in 2011 were 75 percent higher than in 2008. That said, we will continue to escalate our efforts to prevent fraud and pursue it aggressively when it has occurred.
"The nation's hospitals share our goal of a health system that offers high quality, affordable care. We thank you for your relentless work toward this goal which can be better achieved once all Americans have privacy-protected electronic health records. The health information technology incentive program promotes electronic health records that go beyond documentation and billing and towards meaningful use as a foundation for new payment and delivery models. The Affordable Care Act has accelerated the spread of such models like accountable care organizations, patient-centered homes, and value-based purchasing which shift the incentives away from volume and towards value. As we phase-in electronic health records, though, we ask for your help in ensuring that these tools are not misused or abused.
THE IMPACT OF ACOs
What happens to provider billing under accountable care? In some models, payments would no longer be based on fee-for-service, but rather outcomes. Some industry observers think that as the industry embraces the new payment model, issues of overcoding and overbilling will begin to recede. "Coding is entirely way too complex," says Rita Numerof, a St. Louis-based industry analyst. "Physicians often wind up under-coding. They can manage complex problems, but they're nervous about coding for an extended visit. They don't want to be identified by an insurance company as an outlier. Then all their invoices would be held. So they rationalize and eat the charge, which is not fair for doctors doing the right thing."
Numerof calls for wholesale changes in the way the industry reimburses. "We need to get to a different payment system. We can focus on bundled payment and get away from the minutia of a coding system that is becoming more complex and less relevant." The caveat? Numerof contends that for any reimbursement system to succeed in holding down costs, consumers must have a bigger economic stake in their own outcomes and in the quality of services rendered. As such, consumers would be positioned to be a "watch dog" over health care outlays.
Other analysts are less enthusiastic about accountable care-at least as far as its ability to simplify billing. Bundled payment models are an unknown, says Deborah Robb, director, physician services, Trust HCS, which offers coding consulting and training. "Would the same amount of documentation be required or will it be different?" she asks. "If we see one note that has been copy and pasted, would you take the money back even though the procedure was done correctly?"
However industry payment models unfold, documentation and coding will remain a big industry bone of contention in the years ahead, says Ed Hock, senior director, revenue cycle solutions, at Washington, D.C.-based The Advisory Board, a research and services firm. "It won't get any easier as we get into ICD-10," he says, referencing the forthcoming coding and classification system set to come online in 2014. The new coding system includes far more granularity than its predecessor, ICD-9, and will thus require even more detailed documentation from physicians.
As far as upcoding goes, Hock stands by the integrity of the industry. "The vast majority is doing the right thing by coding the care actually provided. You do need to educate physicians to document accurately about what is actually happening."