Trading Rebuttals on Words versus Codes

When considering coding protocols, it’s vitally important to differentiate between “requirements” and “recommendations.”

In June I did a Monitor Mondays segment and a RACmonitor article discussing whether physicians are required to include words describing a diagnosis, or whether listing a code is sufficient.  I was not able to locate any requirement in an authoritative source that physicians use actual words. 

The idea for the article arose after a Coding Clinic Q&A addressed a query seeking clarification of whether there was an official policy or guideline on the subject. The response asserted that there were regulatory and accreditation directives, but it failed to cite a single one. This led me to conclude that while a text description of the diagnosis might me be superior, it was not required. Coding Clinic had made the far-too-common mistake of characterizing something as a requirement, absent any authority.

Fast forward to last week, when Chris Gallagher wrote a rebuttal under the headline “Yes, Doctors are Required to use Words.” The rebuttal tries to cut me some slack by saying that perhaps it was “taking what might have been meant as a light-hearted post too seriously,” but I am afraid that the rebuttal didn’t take the original article seriously enough. Gallagher made exactly the same mistake the Coding Clinic article did. Had she said, “there is no requirement, but it is still a good practice,” that would have been a fair point to make. I would even have agreed.   

But the thesis of my article was that there is no REQUIREMENT that physicians use words, rather than a code. The rebuttal spends considerable time explaining what coding is and why coders are important. I don’t quibble with any of that. I did not, and would not, assert that coders are unimportant. I was explaining that there is no statute or regulation requiring the use of words rather than text. If Ms. Gallagher wished to attack that conclusion, her article should have included a citation to authority. It did not.

It’s important to remember that the only binding authorities for Medicare are the Medicare statutes, the regulations, National Coverage Determinations (NCDs), and, probably Centers for Medicare & Medicaid Services (CMS) rulings. To accurately claim that anything is “required by Medicare,” one must be able to cite at least one of those sources. While Ms. Gallagher may feel that words are preferable, recommended, or even demonstrably superior, that is very, very different than required. Statements from trade groups, lawyers, consultants, and even CMS officials are not binding authority.

On LinkedIn, the American Health Information Management Association (AHIMA) posted Ms. Gallagher’s article, and a number of coders jumped on the bandwagon, talking about a “requirement” for physicians to use words. Let me reemphasize this: there are real reasons that words may be preferable. A one-digit typo in a code number will be much harder to detect than a typo in a text description, for example. But many of the LinkedIn posts mistakenly claim to cite “binding” authority. LCDs got a chunk of attention. I didn’t spend time analyzing the LCDs, because they can’t change the discussion. 

Let’s revisit the regulatory hierarchy. LCDs are not binding. While an organization may choose to follow an LCD, the federal regulations specifically allow an administrative law judge (ALJ) to disregard an LCD. In the Asceracare case, the court of appeals explained that a hospice is not required to follow an LCD’s definition of a terminal illness, explaining LCDs are not binding and should not be considered “the exact criteria used for determining terminal illness.” Coding Clinic is not a federal regulation. While it can say something is “not appropriate,” absent support from a regulation or NCD, citing to Coding Clinic is like citing advice from Dear Abby or Miss Manners. In other words, it might be polite or wise, but it’s not something required by law.

Sorting through situations like this is a challenge for any compliance program. On Aug. 24, RACmonitor will be hosting a webinar offering strategies for dealing with problems like this one. You may register HERE

Programming Note:

Listen to David Glaser’s “Risky Business” segment, Mondays on Monitor Mondays, 10 Eastern.


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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