When Experts Fail on E&M Reviews: The Perils of Blind Trust

The June 21 issue of RACmonitor introduced a discussion of the peril of placing blind trust in expert reviews focusing on surgical coding issues. In this article, we will focus on evaluation and management (E&M) review.

One E&M expert recently analyzed a number of office visits for a certain provider and concluded that there were a number of flaws requiring a considerable refund. 

The associated coder was troubled by missing history of present illness (HPI) elements. (These include factors like the length of time the patient has had symptoms, location and severity, and factors that exacerbate symptoms.) 

I will posit that it is nearly impossible to have a patient encounter without the physician obtaining the HPI. When a patient talks with a physician, the patient is going to describe the problem and provide details about it, even in the unlikely event that the physician fails to ask. It’s certainly true that the physician may fail to record the HPI elements in the record, but the probability that she or he didn’t get the information from the patient is miniscule.

This brings us back to the core point about documentation of E&M services: for Medicare, such documentation is not a precondition of reimbursement. While some Medicaid programs and occasionally some private payers may have explicit documentation requirements, Medicare only requires that you “furnish information” to support the codes billed. Perhaps the simplest evidence to support this conclusion appears in the name of the E&M documentation guidelines: they are guidelines, not requirements. As a result, when documentation is missing for a Medicare patient’s office visit or hospital rounds, you need to make a reasoned assessment as to whether the service was performed and merely not documented (in which case education is appropriate) or whether this service wasn’t performed as billed (in which case a refund is in order). The phrase “if it isn’t written, it wasn’t done” is a risk management strategy, not a legal axiom. If you are skeptical of this, don’t be shy. Send me an email and I can send you some information to explain the analysis. 

The consultant’s report in this case also noted that many of the visits involved patients with complex medical problems who were making difficult treatment decisions. The consultant thought it was nearly certain that time would have justified the codes billed, but concluded that since time wasn’t documented, it was improper to consider this fact.

The expert was absolutely correct that the failure to document time complicated the situation, and raised the risk that in an audit, the claim would be denied. The consultant properly noted that this was a material flaw in the chart. However, asserting that a refund to the Medicare program was required was incorrect.

There were also some exam components that were not documented. There was a breast cancer patient whose exam didn’t include any reference to the breast exam. That physician definitely needs some education, because from a patient quality standpoint, failing to record the exam is an obvious shortcoming.

However, if we talk to the physician and he or she states that the exam was performed and not documented, I would trust that the situation was an error – but again, not an error compelling a refund. (I should note that the organization could choose to refund the money, but the option to refund is obviously very different than a requirement to refund.) 

I would also personally discourage the organization from stating that the refund was an “overpayment” or that the lack of documentation required it. Such legally incorrect statements can interfere with the defense of later investigations.

Consultants can and should play a significant role in the compliance process. However, it’s important to carefully review their recommendations and determine whether they are consistent with facts, the law, and common sense. 

A good consultant can identify problems and help organizations avoid trouble. But when consultants have a different risk tolerance than you or make recommendations that are inconsistent with the law, they can cost you a great deal of money. 

It’s reasonable to expect any professional from whom you seek advice to explain to you both their understanding of the law and their approach to risk.   


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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