Since When Is “Give Less Weight” an Audit Protocol Standard?

Question

Here is an excerpt from the Medicare Program Integrity Manual, Pub. 100-08, chapter 3, section 3.3.2.5, which addresses Late Entries in the Medical Documentation:“This section applies MACs, CERT, Recovery Auditors, and ZPICs, as indicated.A provider may discover that certain documents were misfiled or needed to be filed in the medical documentation during the process of responding to an ADR. Providers are encouraged to add to the medical record or notes file all relevant documents that were created at the time of service or within a few days of the date of service.The MACs, CERT, Recovery Auditors, and ZPICs shall give less weight when making review determinations to documentation, including a provider’s internal query responses, created more than 30 calendar days following the date of service. If the MACs, CERT, or Recovery Auditors identify providers with patterns of making late (more than 30 calendar days past the date of service) entries in the medical documentation, including the query responses, the reviewers shall refer the cases to ZPIC and may consider referring to the RO and State Agency.

A query is a communication tool used between facility coding personnel and the physician and/or other health care practitioners whereby the coder obtains additional documentation to improve the specificity and completeness of the data used to assign diagnosis and procedure codes in a beneficiary’s health record. The process may take place concurrently (while the beneficiary is in the facility) or retrospectively (after discharge).”

I find this very interesting because I have no idea what Medicare means when it instructs the Medicare administrative contractors (MACs), comprehensive error rate testing contractors (CERTs), and zone program integrity contractors (ZPICs) to “give less weight when making review determinations” to documentation created more than 30 days after the date of service.

Since when did something as vague as “give less weight” become an audit protocol standard? Does anyone on the Legal Advisory Board have any insight on this?

Robert A. Pelaia, Esq., CPC, CPCO

Senior University Counsel for Health Affairs, University of Florida College of Medicine, Jacksonville, Fla.

Answer

Here are the responses of AAPC Legal Advisory Board members:

—David M. Vaughn, JD, CPC, Vaughn & Associates, LLC

“I do a lot of appeal work, so I get questions about after-the-fact documentation all the time, and frankly, this rule is in line with the general rule I tell my clients: That is, at some point creating after-the-fact documentation is going to be viewed as too stale to be credible. Most of my clients can’t remember specific cases in the operating room (OR) that happened last week, much less last month, or last year. So, I’ve been telling my clients for a while that although they can add late documentation, at some point there will be a presumption that the information is too stale to be considered credible. That doesn’t mean there aren’t appeal rights to overcome the “give less weight” (whatever that means) standard.

In legal speak, I view the “give less weight” standard as a presumption of non-allowability in the audit phase. I believe it will be upheld in the redetermination phase by the MAC, and the reconsideration phase by the qualified independent contractor (QIC), but can be overcome in the administrative law judge (ALJ) phase when the doc is on the phone with the ALJ testifying under oath that he remembers this specific case. If he can’t remember this specific case, I think the presumption will be upheld.

While I don’t necessarily agree with the 30-day time frame, what I do like is that there is a specified time frame. I can tell my clients, ‘You’ve got to get it documented in 30 days or else the presumption is going to be that it is too stale for you to have remembered that.’

Robert, hats off to you for bringing this to our attention.”

 

—Michael D. Miscoe Esq., CPC, CASCC, CUC, CCPC, CPCO, CHCC, Miscoe Health Law, LLC

“This is consistent with the U.S. Department of Health & Human Services (HHS) Office of Inspector General/Office of Audit Services (OIG/OAS) audit process guidance regarding assessing the credibility of the information provided. Notwithstanding this provision, most ZPICs or QICs will cite the PIM Ch. 3 §3.4.1.2 (or a portion thereof) as a basis for completely ignoring supplemental information. Regardless, most ALJs will consider the information, especially where the doctor’s direct testimony is credible and the supplemental info does not conflict with information recorded contemporaneously.

I concur: ‘Give less weight’ is meaningless and likely improper. What it should demand is an assessment of credibility. Note that 3.4.1.2 is contrary, indicating that the date a record was created is essentially irrelevant.”

 

—Timothy P. Blanchard, JD, MHA, FHFMA, Blanchard Manning LLP

“I think the Centers for Medicare & Medicaid Services (CMS) is off base with this instruction and that provider comments to CMS are warranted.

Any valid (important point) medical record entry is entitled to full faith and credit. After all, it is backed up on the physician’s license (which could be lost if an entry were shown to have been false or fraudulent). While legitimate questions might be raised in connection with very late entries, either they are valid or they are not. There is no basis for either a sliding scale or a presumption of invalidity. As long as the authenticating physician has a sufficient present recollection of the events or observations he or she can properly make a late entry and it should be respected (given full credit normally afforded) if properly entered and authenticated.

I hope providers do not just cave in and accept this. Determinations based on this instruction should be challenged in the appeal process. From time to time late entries will be necessary for almost every provider and it should not matter what triggered the conclusion that a late entry was appropriate to assure an adequate and accurate medical record.”

 

—Julie Chicoine, Esq., RN, CPC, Senior Assistant General Counsel, Ohio State University Medical Center

“I have given this some further thought and suspect that the underlying issue turns on the issue of what I think of as ‘evolving documentation’ where coders or other support staff seek supplemental (additional) documentation from providers to clarify the services rendered during a particular encounter.

Documentation enhancement usually takes the form of addendums to the medical record. To me, this makes sense; though, if the contractors see too much of it—especially with one or two providers several days or even weeks after the original patient encounter, and when it follows an ADR—then it becomes suspect.

This might serve as a foundation for an excellent article or presentation on documentation improvement.”

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