Opinion: Judge Ezra got the Baylor Case Right

The author reports on the recent court decision to dismiss a False Claims Act lawsuit against Dallas-based Baylor, Scott & White Health.

EDITOR’S NOTE:

Dr. Erica Remer reported this story live during the Aug. 27 edition of Talk Ten Tuesday. The following is an edited transcript of her reporting.

My good friend and coder extraordinaire, Colleen Deighan, texted me right before last week’s Talk Ten Tuesday broadcast asking me what I thought about the Baylor False Claims case. Having been working on preparing some presentations for the Oregon HIMA annual conference in October, I had my head under a rock and didn’t know what she was talking about. Many of my best topics come as questions or suggestions from you, our listeners, so please keep them coming.

It’s also embarrassing that Glenn Krauss used that for the topic of the lead article, and I hadn’t read it yet. I’ve had time to catch up and here are my thoughts from the Motion to Dismiss (https://kslawemail.com/128/5597/uploads/2019-08-05-order-in-usa-.pdf).

It might surprise some of you that requests for reimbursement for resources utilized in taking care of Medicare patients fall under the False Claims Act which says, “Knowingly presenting false or fraudulent claims to the Government for reimbursement is illegal.”

The court document gave a simplistic but accurate explanation of the DRG system and stated that the allegation was that the hospital and CDI program were engaged in a “scheme” to hunt for MCCs. The Defendants also “allegedly distributed tip sheets” “that provided doctors guidance on how to clinically document diagnoses in a way that is codable by CMS” which I suspect is accurate. The complaint stated that these “documentation clarification sheets” revealed an intent to steer providers to options that would be counted as CCs or MCCs.

What they are suggesting in the next paragraph is absurd. It alleges that the Defendants purposely and unnecessarily placed patients on post-operative ventilator support enabling them to code for the MCC of acute respiratory failure. Falsely asserting a patient safety indicator (PSI) for money would be a bad trade-off and one which most hospital quality departments would not endorse.

I am not surprised that sepsis didn’t make the top three conditions list – it most often defines the DRG, not serves as an MCC. The top three will come as no surprise to my astute readers: encephalopathy, respiratory failure, and severe malnutrition.

Here’s my feeling about comparing your hospital to national benchmarks. First, who says they are doing it right? Secondly, if you have a robust, and ethical, CDI program such that you are capturing comorbid conditions appropriately, and your patient population is sick, as one might expect the Baylor system’s clientele to be, you very well might have a higher than the average number of MCCs and CCs. Finally, I’d like to be sure that the folks doing the statistical analysis finding significant coding differences aren’t working on commission. Fifteen percent of $61.8 million is a lot.

In the discussion, they say, “such a scheme (i.e., CDI program) is not in and of itself one to submit false claims” but it could also be consistent with a process “to improve hospital revenue through accurate coding of patient diagnoses in a way that will be appropriately recognized and reimbursed by CMS commensurate with the type and amount of services rendered.”

In 2008, the Final Rule had a passage which I quote to providers who are concerned that changing their documentation could be construed as fraud. It says, “CMS does not believe there is anything inappropriate, unethical or otherwise wrong with hospitals taking full advantage of coding opportunities to maximize Medicare payment that is supported by the documentation in the medical record.” (Federal Register, Vol. 72, No. 162, August 22, 2007, p. 47180) This was essentially the argument that the Defendants posed as well, and it seemed to work.

Judge (David A.) Ezra concluded that “the Defendants were taking steps to improve the accuracy and consistency of their medical documentation and coding so as to align it with terminology that CMS would recognize and reimburse appropriately,” and he dismissed the case with prejudice.

My conclusion is the one I always have: Tell the Story, Tell the Truth, and make the patient look as sick and complex in the medical record as they do in real life. The truth will prevail.

Facebook
Twitter
LinkedIn

Erica Remer, MD, FACEP, CCDS, ACPA-C

Erica Remer, MD, FACEP, CCDS, ACPA-C has a unique perspective as a practicing emergency physician for 25 years, with extensive coding, CDI, and ICD-10 expertise. As physician advisor for University Hospitals Health System in Cleveland, Ohio for four years, she trained 2,700 providers in ICD-10, closed hundreds of queries, fought numerous DRG clinical determination and medical necessity denials, and educated CDI specialists and healthcare providers with engaging, case-based presentations. She transitioned to independent consulting in July 2016. Dr. Remer is a member of the ICD10monitor editorial board and is the co-host on the popular Talk Ten Tuesdays weekly, live Internet radio broadcasts.

Related Stories

I am Just a Bill

I am Just a Bill

Today is election day.  I wanted to talk about the process by which laws are passed and regulations created in healthcare. Recently, the fall of

Read More
Washington Carries On

Washington Carries On

As the November elections neared, you might have expected Washington to slow to a crawl amidst campaigning and uncertainty about the future. However, the show

Read More

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

Comprehensive Inpatient Clinical Documentation Integrity: From Foundations to Advanced Strategies

Comprehensive Outpatient Clinical Documentation Integrity: From Foundations to Advanced Strategies

Optimize your outpatient clinical documentation and gain comprehensive knowledge from foundational practices to advanced technologies, ensuring improved patient care and organizational and financial success. This webcast bundle provides a holistic approach to outpatient CDI, empowering you to implement best practices from the ground up and leverage advanced strategies for superior results. You will gain actionable insights to improve documentation quality, patient care, compliance, and financial outcomes.

September 5, 2024
Advanced Outpatient Clinical Documentation Integrity: Mastering Complex Narratives and Compliance

Advanced Outpatient Clinical Documentation Integrity: Mastering Complex Narratives and Compliance

Enhancing outpatient clinical documentation is crucial for maintaining accuracy, compliance, and proper reimbursement in today’s complex healthcare environment. This webcast, presented by industry expert Angela Comfort, DBA, RHIA, CDIP, CCS, CCS-P, will provide you with actionable strategies to tackle complex challenges in outpatient documentation. You’ll learn how to craft detailed clinical narratives, utilize advanced EHR features, and implement accurate risk adjustment and HCC coding. The session also covers essential regulatory updates to keep your documentation practices compliant. Join us to gain the tools you need to improve documentation quality, support better patient care, and ensure financial integrity.

September 12, 2024

Foundations of Outpatient Clinical Documentation Integrity: Best Practices for Accurate Coding and Compliance

This webcast, presented by Angela Comfort, DBA, RHIA, CDIP, CCS, CCS-P, a recognized expert with over 30 years of experience, offers essential strategies to improve outpatient clinical documentation integrity. You will learn how to enhance the accuracy and completeness of patient records by adopting best practices in coding and incorporating Social Determinants of Health (SDOH). The session also highlights the role of technology, such as EHRs and CDI software, in improving documentation quality. By attending, you will gain practical insights into ensuring precise and compliant documentation, supporting patient care, and optimizing reimbursement. This webcast is crucial for those looking to address documentation gaps and elevate their coding practices.

September 5, 2024
Preventing Sepsis Denials: From Recognition to Clinical Validation

Preventing Sepsis Denials: From Recognition to Clinical Validation

ICD10monitor has teamed up with renowned CDI expert Dr. Erica Remer to bring you an exclusive webcast on how to recognize sepsis, how to get providers to give documentation that will support sepsis, and how to educate to avert sepsis denials. Register now and become a crucial piece of the solution to standardizing sepsis clinical practice, documentation, and coding at your facility.

August 22, 2024

Trending News

Featured Webcasts

Post Operative Pain Blocks: Guidelines, Documentation, and Billing to Protect Your Facility

Post Operative Pain Blocks: Guidelines, Documentation, and Billing to Protect Your Facility

Protect your facility from unwanted audits! Join Becky Jacobsen, BSN, RN, MBS, CCS-P, CPC, CPEDC, CBCS, CEMC, and take a deep dive into both the CMS and AMA guidelines for reporting post operative pain blocks. You’ll learn how to determine if the nerve block is separately codable with real life examples for better understanding. Becky will also cover how to evaluate whether documentation supports medical necessity, offer recommendations for stronger documentation practices, and provide guidance on educating providers about documentation requirements. She’ll include a discussion of appropriate modifier and diagnosis coding assignment so that you can be confident that your billing of post operative pain blocks is fully supported and compliant.

October 24, 2024
The OIG Update: Targets and Tools to Stay in Compliance

The OIG Update: Targets and Tools to Stay in Compliance

During this RACmonitor webcast Dr. Ronald Hirsch spotlights the areas of the OIG’s Work Plan and the findings of their most recent audits that impact utilization review, case management, and audit staff. He also provides his common-sense interpretation of the prevailing regulations related to those target issues. You’ll walk away better equipped with strategies to put in place immediately to reduce your risk of paybacks, increased scrutiny, and criminal penalties.

September 19, 2024
Pediatric SDoH: An Essential Guide to Accurate Coding and Reporting

Pediatric SDoH: An Essential Guide to Accurate Coding and Reporting

This webcast, presented by Tiffany Ferguson, LMSW, CMAC, ACM, addresses the critical gap in Social Determinants of Health (SDoH) reporting for pediatric populations. While SDoH efforts often focus on adults, this session emphasizes the unique needs of children. Attendees will gain insights into the current state of SDoH, new pediatric Z-codes, and the importance of interdisciplinary collaboration. By understanding and applying pediatric-specific SDoH factors, healthcare professionals can improve data capture, compliance, and care outcomes. This webcast is essential for those looking to enhance their approach to pediatric SDoH reporting and coding.

August 8, 2024
Oncology and E/M Services: Compliance, Medical Necessity, and Reimbursement

Oncology and E/M Services: Compliance, Medical Necessity, and Reimbursement

Join Becky Jacobsen, BSN, RN, MBS, CCS-P, CPC, CPEDC, CBCS, CEMC, VP of CDM, for a webcast addressing oncology service coding challenges. Learn to navigate coding for infusions and injections alongside Evaluation and Management (E/M) services, ensuring compliance and accurate reimbursement. Gain insights into documenting E/M services for oncology patients and determining medical necessity. This webcast is essential to optimize coding practices, maintain compliance, and maximize revenue in oncology care.

July 30, 2024

Trending News

Prepare for the 2025 CMS IPPS Final Rule with ICD10monitor’s IPPSPalooza! Click HERE to learn more

Get 15% OFF on all educational webcasts at ICD10monitor with code JULYFOURTH24 until July 4, 2024—start learning today!

👻Spooky Sale is Back!👻 Get 31% off all three Medlearn brands, using code SPOOKY24.