Legal Edge: Can a Claim Be Coded Only From its Dictation?
By Michael Miscoe
Question: For my specialists who have many subsequent visits, the doctor provides specific detail (i.e., the degree of burn, stage of ulcer, infecting organism, etc.), but only on the initial visit. Must a claim be coded per its own dictation only? That is, must the dictated record stand on its own, separate from the patient’s complete medical record?
Nicole Lopez, CPC CPC-P
Answer: The answer may vary depending on the payer. Because the payer here hasn’t been specified, I will answer according to Medicare standards.
The Social Security Act (42 U.S.C. §1395l(e)) provides the following mandate for providers submitting claims to Medicare (emphasis added):
“(e) Information for determination of amounts due
No payment shall be made to any provider of services or other person under this part unless there has been furnished such information as may be necessary in order to determine the amounts due such provider or other person under this part for the period with respect to which the amounts are being paid or for any prior period.”
This requirement essentially is repeated in the federal regulations (42 C.F.R. §424.5(a)(6)):
“(6) Sufficient information. The provider, supplier, or beneficiary, as appropriate, must furnish to the intermediary or carrier sufficient information to determine whether payment is due and the amount of payment.”
Although the statute focuses on information necessary to determine the amounts due, the regulation clarifies by including a requirement that the information also support “whether payment is due”—suggesting a requirement to demonstrate the necessity of care.
Overlooking the question of whether “information” is limited to documentation, it is clear there is no temporal (time) limitation on when this information must be created. Unfortunately, many auditors assume the information must be contemporaneous; however, there is no statutory support for such an assumption under the Medicare statute or regulations.
Looking to the interpretive guidance publishing in the Medicare Program Integrity Manual (PIM) pertaining to either pre-payment or post payment review, there is clear guidance that the contractor may use any information deemed necessary to make a pre-payment or post-payment claim review determination (Pub. 100-8, Ch. 3, §184.108.40.206). Although a subsequent provision suggests that unsolicited documentation may, but need not, review unsolicited documentation, this is not usually the case. During pre-payment or post-payment review, there usually is a request for the provider to submit documentation to support the claim so this provision does not apply. Instead, when documentation is requested, the PIM requires that contractors “shall review and give appropriate consideration to all documentation that is provided,” (Ibid. §220.127.116.11). This provision expressly provides (emphasis added):
“Documentation provided for pre- or post-payment medical review shall support the medical necessity of the item(s) or service(s) provided. The treating physician, another clinician or provider, or supplier may supply this documentation. This documentation may take the form of clinical evaluations, physician evaluations, consultations, physician letters, or other documents intended to record relevant information about a patient’s clinical condition and treatment(s).
“The date that an individual document was created, or the creator of a document is not the sole deciding factor in determining if the documentation supports the services billed.
“In instances where medical necessity is not supported by contemporaneous information in physician progress notes, physician progress notes shall be the determining factor. In instances where documentation is provided in lieu of contemporaneous progress notes, contractors shall determine if the documentation is sufficient to justify coverage.”
In the context of your question, when certain information is not in the contemporaneous notation for the service in question, but is reliably contained within an earlier record establishing the basis for a care plan of which the audited treatment or service is a part, it appears the carrier is required to consider “relevant information about a patient’s clinical condition and treatment(s)” to determine if the documentation as a whole is “sufficient to justify coverage.” Unfortunately, this does not always occur; however, such a hyper-technical basis for denial can often be overturned in the appeal process. Recognizing that such technical analysis often occurs, providers should consider incorporating by reference the information in the earlier document (by date and content) to avoid unnecessary duplication of information, as well as avoid unnecessary denials.
Michael Miscoe has a bachelor’s of science degree from the U.S. Military Academy and a juris doctorate degree from Concord Law School. He is the president of Practice Masters, Inc., a current member of the AAPC Legal Advisory Board, and is admitted to the Bar in the state of California as well as to the practice of law before the U.S. District Courts in the Southern District of California and the Western District of Pennsylvania. Michael has nearly 20 years of experience in health care coding and over 13 years as a compliance expert testifying in civil and criminal cases.