Educate yourself to avoid a board review
Lack of understanding, not fraud, triggers most TMB action
By Bradley Reiner
I have been fortunate to have the opportunity to be one of the Texas Medical Board’s consultant reviewers along with my other responsibilities. I started reviewing cases for the board in 2008 and it is a job that I take very seriously. You may be wondering why a 20-year physician advocate would work for the medical board. How could I agree to find fault with doctors and have a hand in their discipline by the board? I worried about that myself in the beginning, but it has not turned out that way at all.
I review cases for two main reasons. I feel that I can help make a difference in how the board reviews and disciplines its physicians. I believe we should educate doctors when mistakes are made, particularly when involving business or billing issues that fluctuate constantly and can be difficult for the physician and his or her staff to understand. I also review cases because I feel I can educate physicians on the types of complaints I see as well as how to avoid these issues. Part of staying out of trouble is doing it correctly the first time, right? So if physicians understand which problems are typically investigated by the board, they can take steps to prevent mistakes.
I’m generally asked to review complaints submitted by patients or insurance plans, with the majority coming from the latter. Why? It is my opinion that some carriers spend little time doing their own internal reviews or educating their physicians and instead send complaints to the board with expectations that TMB staff will perform an investigation. I feel that some of these issues are not board-related and could have been managed by the insurance plan through compliance and education.
In the billing or coding cases I have reviewed, the problems have involved the physician’s lack of understanding regarding the rules, not fraudulent behavior. Many physicians have a poor understanding of specific rules regarding billing, modifiers, and coding—understandable because of the varying rules applied by each insurance plan and the ongoing effort required to identify and correct errors.
Unfortunately, anything filed to insurance plans will be scrutinized and accuracy is the responsibility of the physician, not the staff. Physicians are the ones who have to answer questions and may be subjected to TMB investigations, OIG reviews, attorney general inquiries, whistle-blower suits, and potential corrective action including fines or even incarceration. While insurance companies are in business to make money, government payers are there to protect our tax dollars and correct or discipline inappropriate behavior. We have reached the age of auditing for compliance, and this is likely to get worse. Physicians need to prepare themselves for this level of scrutiny.
So, it seems obvious when a complaint comes in from a major insurance payer stating that a doctor has inappropriately billed for services for a number of years that TMB would be interested. They want to know if the doctor is a threat to the health care system and if he or she is receiving payments from the insurance company for care that was not provided or for claims billed incorrectly. The board has an obligation to ensure all physicians are licensed properly and that they render an appropriate standard of care as well as provide appropriate billing and documentation.
I will present an example of a case I reviewed along with my recommendations to the board to give you an idea of what a potential case looks like and how the system works. Recently, I received an e-mail from a representative of the board asking me to review a case regarding a complaint filed by a major insurer. I noted that I had reviewed three similar complaints from the same insurer and this struck me as suspicious.
The complaint read as follows:
“At issue in this investigation are allegations regarding the respondent’s fraudulent billing practices. Specifically, it was alleged that the respondent submitted falsified insurance claims for services which were misrepresented, unbundled, or contained codes previously billed by Dr. X for the following patients … .”
It was clear this complaint was drafted by the insurance company and sent to the board to investigate to determine if the above actions were true. As stated above, it seemed as if the complaint could have been handled by the insurer as an educational opportunity instead of bringing it to the attention of the board. Some cases I review involve different complaints for the same physician while others, like this one, involve multiple patients with a similar issue.
This involved a billing problem and the board asked me for recommendations on whether the doctor inappropriately billed. Each of the patient records I reviewed included multiple claims regarding evaluation and management services and other procedures provided over a select period of time. The board wanted to know if the documentation presented for each patient met the codes the doctor had chosen that day.
To begin the review, the board provided me with a password and a case number to access the case through their secure website. Once in the system I found the case number where everything had been scanned and was ready to review. Each file was divided into several categories, one of which was the doctor’s response to the allegations. This is always an important section for me to read to understand the physician’s perspective regarding the complaint as well as what he or she believes to be true.
As a tangent, the more information physicians provide in this section, the more a reviewer can understand their perspective and what they knew to be the issue. In the case that you’re responding to a complaint, don’t write a small paragraph simply stating that the allegations are false. Defend the allegations with credible, timely, complete, and accurate information to back up your claim. Specific details always help me understand the situation.
Back to the case, I reviewed the complaint letter from the insurance company, which gave valuable insight into why they sent the complaint.
In every complaint I agree to review, I am required to give the facts of the case. I provide the facts as I understand them after reviewing all of the issues involved.
The next item the board requests is the standard of care in billing. What are the general principles involved in billing for the facts of the case? If a doctor billed several codes on the same day, what are the documentation requirements to ensure the record supports the billed codes? The board also wants to know if the application to the standard of care of billing was met. This is where the rubber meets the road. Did the doctor use appropriate billing protocols to bill and document his services correctly and according to generally accepted billing and coding rules?
In this case, the physician did not document clearly and completely for the code levels he billed. This is a very common problem I identify in many of my reviews; it’s a matter of not knowing the guidelines. Most physicians don’t even know documentation guidelines exist much less what they say or how to apply them. Others know about them, but don’t understand all of the specific rules. Unfortunately, it gets interpreted by some as fraudulent, which I believe is unfair to physicians.
Finally, I am asked to give my opinion on whether there was a violation. In this case, I felt the doctor just didn’t understand the rules for documenting correctly. And as is my common practice when I determine the case is not fraud but involves a lack of understanding of proper billing rules, I recommended the board take action to educate and train the physician on billing protocols so that he can correct the behavior going forward.
Some doctors commit violations and need to be reprimanded for the behavior. Other physicians have no idea that they were making these mistakes and simply need direction and education. This education can help protect physicians and ensure they understand billing and coding compliance. We all have a responsibility to report fraud and abuse, and if a case truly appears to involve fraud I’ll be the first to call it that way. However, in my years of completing reviews, I have not personally found a case that I felt was one of true fraud.