Medicare’s E&M Changes Imperil Potential Legal Defenses

Medicare reimbursement is merely one of a plethora of reasons that medical record documentation is important. 

Last week Frank Cohen wrote an excellent article exploring how Medicare changing principles for coding evaluation and management (E&M) services was resulting in reduced documentation. Cohen is the director of business intelligence for healthcare vendor DoctorsManagement.

In particular, since office visits are now coded based on the either the amount of medical decision-making or time, there has been a dramatic decrease in the volume of history and examination documented for many of the visits in the DoctorsManagement database. Cohen posed an important question: if physicians are skipping the documentation of the history and exam, is it a problem?

The answer, of course, is yes, it is. This situation illustrates an important point when asking legal questions about a highly regulated area such as healthcare: it is perilous to focus on only one regulatory scheme at a time. 

While Medicare has changed its expectations for E&M coding, here is a partial list of other parties or situations that rely on E&M documentation: other medical professionals treating the patient, state Medicaid programs, TriCare, private insurers, licensing bodies, credentialling bodies, and medical malpractice cases. While you can bill any E&M service to Medicare without any evidence of an exam, in a malpractice case, if the exam is relevant to the case, its absence from the medical record will create a huge challenge to the defense. If a private payer has a contract with you that imposes an expectation of a documented exam, the fact that Medicare no longer considers examinations for office visits is irrelevant.  

In short, the new flexibility from Medicare is certainly welcome, but it does not eliminate the need to document histories or examinations. While it is important to analyze Medicare requirements, it is equally imperative to avoid the tunnel vision of focusing solely on Medicare requirements. 

Medicare reimbursement is merely one of a plethora of reasons that medical record documentation is important. While it is no longer relevant to tally “points” in the documentation of an exam for a Medicare beneficiary’s office visit, documentation of that exam remains vital.

Finally, it is worth noting that while many people reflexively say, “if it isn’t written, it wasn’t done,” that still isn’t true. If the physician does an exam and takes a history and is able to convince the fact-finder that the work was done, the absence of documentation can be overcome. 

However, persuading someone that a service was performed when there is no documentation to support it is always an uphill battle. It will be much easier to simply include a medically relevant history and exam.

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