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October 1, 2012


Electronic Health Records allow physicians to document care in greater detail and with greater ease.  Claims for Level 4 and Level 5 evaluation and management services provided in hospital emergency departments have spiked sharply in the last few years, and  CMS recently cautioned the hospital industry about taking advantage of ambiguities in the coding system to “game the system” with the help of EHR technology.  Physicians who report 100 or more visit high-level visit services per year – including in particular pain specialists – should take note.


The percentage of patients requiring the highest level of service in the emergency department at Faxton St. Luke’s Healthcare in Utica, NY rose 43 percent in 2009, as reported in the New York Times on September 21, 2012.  Level 5 ED visit services (CPT® code 99285) at Baptist Hospital in Nashville, TN increased by 82 percent in 2010, and by a comparable amount at Methodist Medical Center of Illinois in Peoria.  More than 80 percent of Methodist Memorial’s Medicare ED evaluation and management (E/M) claims were for Level 5 services in 2010, as they were at Yuma Regional Medical Center in Yuma, AZ in 2007.  At Baylor Medical Center in Irving, TX, 64 percent of all ED visits for Medicare patients were Level 5 services, and another 16 percent were Level 4.

These are just a few examples of hospitals experiencing a startling rate of growth of high-intensity E/M services during the last few years.  According to an analysis by The Times, the volume of Level 4 and Level 5 claims submitted to Medicare increased from 40 percent in 2006 to 54 percent in 2010. While the hospitals attribute the change to greater numbers of older and sicker patients, some observers relate the increase to the spread of electronic health records (EHRs).  The Times article noted, “Over all, hospitals that received government incentives to adopt electronic records showed a 47 percent rise in Medicare payments at higher levels from 2006 to 2010, the latest year for which data are available, compared with a 32 percent rise in hospitals that have not received any government incentives.”

EHRs May Facilitate Upcoding

EHRs make it easier for hospitals (and physicians) to report higher-level codes by automating the greater amount of documentation required for a “comprehensive history,” a “comprehensive examination” and “medical decision making of high complexity,” the three elements of a Level 5 E/M service.  The term “cloning” of patient data appears in several discussions.  Both the intensity of the service and the severity of the patient’s condition lend themselves to exaggeration.

A Level 5 E/M in the emergency department yields an average facility of fee of $324.  A Level 1 E/M generates $50.  EHRs figured prominently in a critical Medicare audit of Texas and Oklahoma hospital emergency rooms in March of this year. The audit concluded that $45.14 of every $100 billed for emergency room care “was paid in error.”

Donald Berwick, MD, immediate past Administrator of the Centers for Medicare and Medicaid Services (CMS), was reported as saying that “a small portion of the billing increase is likely caused by outright fraud, but in the majority of cases hospitals are legally boosting profits by targeting the vulnerabilities of Medicare’s payment system.  ‘They are learning how to play the game.’” (J. Eaton, D. Donald. Hospitals grab at least $1 billion in extra fees for emergency room visits, Center for Public Integrity email newsletter, September 20, 2012.)

The federal government has been vigorously promoting the adoption of EHRs for several years now, as readers of ABC’s Alerts are well aware—see the sidebar column.  Advancing the use of health information technology, and EHRs in particular, has taken precedence over enforcing the fraud and abuse laws, the Center for Public Integrity suggested.

Only a few days after the Center for Public Integrity published its analysis and criticism, to which The Times gave far wider circulation, CMS sent a well-publicized letter, on September 24th,  to five national hospital organizations (the American Hospital Association, the Association of Academic Health Centers, the Association of American Medical Colleges, the Federation of American Hospitals and the National Association of Public Hospitals and Health Systems) expressing concern over "troubling indications" that some hospitals are using EHR technology to "game the system, possibly to obtain payments to which they are not entitled."

The letter, signed jointly by Secretary of Health and Human Services Kathleen Sebelius and Attorney General Eric Holder, alerted the hospital organizations that CMS is "specifically reviewing billing through audits to identify and prevent improperly billing and is "initiating more extensive medical reviews to ensure that providers are coding evaluation and management services accurately."  Not so subtly, the letter continued, “New tools provided by the health care law authorize CMS to stop Medicare payments upon suspicion of fraud and to mine data to detect it in the first place.  These efforts have contributed to record-high collections and prosecutions.  Prosecutions in 2011 were 75 percent higher than in 2008.”

The American Hospital Association responded on the same day.  Rich Umbdenstock, president and CEO wrote that the AHA agreed that “’cloning’ of medical records and ‘upcoding’ of the intensity of care should not be tolerated."  He added that, "It's critically important to recognize that more accurate documentation and coding does not necessarily equate with fraud."  Indeed, many hospitals and emergency physicians have made the point that EMRs are allowing them to code services correctly for the first time, and that the burden of documentation caused them to undercode in the past.

The AHA reminded CMS that hospitals had been asking CMS to develop national guidelines for the reporting hospital emergency department and clinic visits 11 times starting in 2001.  Without such guidelines, hospitals are required to use the CPT E/M codes, which were designed to describe physician activities and not the range and mix of services provided in hospitals.  The letter concluded:

What’s needed is clearer guidance from CMS, not duplicative audits that divert much needed resources from patient care. In recent years, CMS has drastically increased the number of program integrity auditors that review hospital payments to identify improper payments. 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 redundant audits, unmanageable medical record requests and inappropriate payment denials.

The E/M codes that challenge hospitals’ compliance efforts were, as noted, written for physicians, but there is room for equivocation among physicians and nurses who use the codes.  The difference between a Level 2 and a Level 3 “subsequent hospital care” is the difference between an “expanded problem focused” interval history and/or examination and medical decision making of “moderate”  complexity, and a “detailed” interval history and/or examination and medical decision making of “high” complexity. (Anesthesia codes like 01214—anesthesia “for total hip arthroplasty”—in contrast, are clear.)  Do anesthesiologists and pain specialists need to be concerned about increased audit activity based on their use of electronic records?

Anesthesia information management systems (AIMS) and electronic anesthesia records do not lend themselves as easily to upcoding because of the nature of the information they contain—or if they do, CMS has not signaled any special interest in the issue.

The Office of the Inspector General (OIG) published the first in a promised series of evaluations of E/M coding in May 2012.  The report, Coding Trends of Medicare Evaluation and Management Services, revealed that (1) from 2001 to 2010, physicians increased their reporting of higher level E/M codes in all types of E/M services, and (2) some 1,700 physicians consistently billed higher level codes than their peers in 2010 although their patients were of similar ages and had similar diagnoses. These physicians, who represented less than one percent of the total number of physicians who submitted claims for at least 100 E/M services, billed the two highest level codes within a visit type (new or established patient; outpatient or inpatient, etc.) 98 percent of the time on average.  Greater proportions of the consistently higher level billers occurred in internal, family and emergency medicine.  Among anesthesiologists, only 2.6 percent consistently billed the higher level codes.  The absolute number of E/M services—generally, subsequent inpatient visits—reported by anesthesiologists is of course considerably lower than that of office-based practitioners, including pain specialists.

The OIG report recommended that CMS continue to educate physicians on proper billing for E/M services and “encourage its contractor to review physicians’ billing for E/M services and produce comparative billing reports.” Further, the OIG recommended that CMS conduct additional reviews of the 1700 higher-level billers, but CMS decided that it would forward the names of those physicians to the Medicare Administrative Contractors (MACs) and direct each MAC to decide whether to investigate any or all of the top ten high billers in its jurisdiction. 

A future OIG study will assess the extent of documentation vulnerabilities in E/M services using EHRs.

One of the Recovery Audit Contractors (Connolly) is about to begin auditing how physicians report CPT code 99215 (established patient, office or outpatient).  According to the American Medical Association (AMAWire, September 26, 2012), “CMS appears to have also granted Connolly authority to extrapolate its review of sample claims to potentially recoup funds on 99215 claims it did not evaluate individually.”

The AMA sent a letter to CMS objecting “strongly” to the Connolly review and extrapolation process.  The AMA argued that complex E/M care was inappropriate for medical review and that since nearly half of appealed RAC determinations are overturned, the costs of erroneous payment recoupments would be excessive. 

It is too early to tell whether CMS and the RACs will step up audits of physicians who report relatively high volumes of higher-level E/M services as the installed base of EHRs grows.  Better documentation is the intended consequence of EHR use. Because it has been so difficult to document by hand all of the elements of Level 4 and Level 5 visits, we would expect the accuracy afforded by EHRs to boost somewhat the number of such visits that are reported—an unintended but necessary consequence.

The take-away message is that readers should be prepared to explain any significant spike in the number of Level 4 and Level 5 E/M visits reported.   Any pain specialist or anesthesiologist who reports E/M services using Level 4 or 5 codes more frequently than other visit codes should make sure that the intensity of the service is supported in the patient record, whether electronic or paper.  That is the advice that we would give all of our physicians, regardless of particular levels of federal scrutiny.  As we have said before and will say again in the future, documentation is key.

With best wishes,

Tony Mira
President and CEO