AHA Faults HHS For Lack Of E/M Guidelines As DOJ Warns Hospitals Not To Use EHR To Game System


The American Hospital Association told Obama administration officials Monday that it agrees fraudulent billing practices -- such as inappropriately “upcoding” the intensity of care -- should not be accepted but said some of the onus falls on HHS for failing to develop national guidelines for reporting Evaluation and Management (E/M) codes despite “numerous requests.” AHA's letter came after HHS Secretary Kathleen Sebelius and Attorney General Eric Holder warned hospital groups that the administration “will not tolerate” health care fraud and specifically pointed out that CMS has the authority to address inappropriate coding intensity adjustments through its payment rules if warranted.

The administration's strongly worded letter was sent to AHA, Federation of American Hospitals, Association of Academic Health Centers, Association of American Medical Colleges, and National Association of Public Hospitals and Health Systems. The letter was spurred by a recent reports, including a front page New York Times story, suggesting that increased usage of electronic health records, long seen as a way to create more efficiency in the health sector, are instead being used to “game” the system.

“Used appropriately, electronic health records have the potential to save money and save lives,” Sebelius and Holder wrote. But, “there are troubling indications that some providers are using this technology to game the system,” they add.

The letter says that CMS “is initiating more extensive medical reviews to ensure that providers are coding evaluation and management (E/M) services accurately.” This will include comparative billing reports that can identify “outlier” facilities.

Additionally, the letter warns that CMS has -- and will consider using -- authority to address inappropriate coding through its payment rules.

Sebelius and Holder also told the hospital groups that HHS, the Department of Justice, the FBI and other law enforcement agencies are monitoring trends and taking action if they discover providers using EHRs to bill for services never provided and other fraudulent activity. They note the health law provided new tools to combat fraud, including provisions allowing CMS to stop payments for suspicious billing and mine data, which have already contributed to “record-high” collections and prosecutions.

In its response, AHA stresses that hospitals share the administration's goals of creating a high-quality, more-affordable health system and “work hard to ensure billing is correct the first time.” But AHA suggests that HHS would be more helpful by offering greater clarity, not more “duplicative audits” that divert resources from patient care.

“No one questions the need for auditors to identify billing mistakes, but the flood of new auditing programs, such as Recovery Audit Contractors, MACs and others, is drowning hospitals with a deluge of of redundant audits, unmanageable record requests, and inappropriate payment denials,” AHA writes, pointing out that a recent survey showed that hospitals are appealing 40 percent of denials and have a 75 percent success rate. The programs need to be streamlined so that duplicative audits are eliminated, AHA says.

AHA also stresses that more accurate documentation and coding “does not necessarily equate with fraud,” and points to the need for more guidance. Hospitals have made 11 requests for CMS to develop national guidelines for E/M codes since 2001. The letter says that AHA and the American Health Information Management Association (AHIMA) in 2003 recommended that CMS move from the American Medical Association's CPT coding system, and implement guidelines developed by an independent panel of experts.

CMS said that it would consider such recommendations in its 2004 and 2005 outpatient payment rules, AHA says. “However, to date, the CMS has not established national hospital E/M guidelines,” AHA says. The FY 2013 OPPS rule proposed that hospitals should continue to report visits according to their own guidelines to determine the different levels of clinic and emergency department visits, AHA points out.

AHA says that it “stands ready to work with CMS in the development and vetting” of the national guidelines which should then be proposed to AMA's CPT board.

FAH, AAMC and AAHC did not respond by press time. The NAPH said in a response that its hospitals “adhere to high ethical standards” and reject practices that could result in fraudulent claims. “We stand ready to help regulators understand fully the many aspects of electronic health record use in the hospital setting as they consider actions to ensure proper billing practices,” NAPH said. -- Amy Lotven (alotven@iwpews.com) and Michelle Stein (mstein@iwpnews.com)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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