A rebuttal by Steven R. Levinson MD CHCA, with some comments from Evan M. Gwilliam DC MBA BS CPC CCPC CPC-I QCC MCS-P CPMA CMHP, Executive Vice President, Find-A-Code
A few weeks ago we ran an article from a healthcare attorney entitled The Big Myth: “If it Isn’t Written, it Wasn’t Done” Documentation is NOT a Requirement for Most Medicare Claims. This incited some concern in one of our readers, and he happens to be Stephen R. Levinson, M.D., CHCA (Certified Healthcare Chart Auditor – certified by the Association for Healthcare Auditors and Educators [AHCAE]). He retired from practice in 2002, and was involved in consulting on the interface between medical compliance and quality patient care from 1995 through 2016. During that time, he also authored the AMA publications “Practical E/M” and “Practical EHR,” both of which present the tools and methodology to optimize compliance and promote quality care. His comments about the content of our article are included below, in his own words.
The lead article mistakenly states
“The phrase “If it isn’t written, it wasn’t done” is repeated so commonly that it seems crazy to question it. But with very limited exceptions, it is NOT Medicare law. When you have provided a service to a Medicare patient but find that the documentation is lacking, you can and should bill for the service, and appeal any denial of the service, unless there is a specific rule (such as the rule requiring documentation of certain medically directed anesthesia services) that requires that the service be documented.”
This statement could NOT be further from the truth. The abbreviated short-hand phrase “if not documented, it wasn’t done” is derived from the Medicare Carrier Manual section 7101.1(i) (which approximately states ‘payment will be denied if documentation is insufficient to support that service was performed’). Further, advising to bill a service despite lack of documentation invites a potential assessment of “false claims,” with its potential fines of up to $11,000 per claim. There is additional CMS documentation stating that cloned documentation (usually from EHRs) is insufficient to support claims as well.
We replied to Dr. Levinson [Our statements in purple] and he supported his concerns as outlined below:
1) [from FindACode] “The intent of the article is not to lead anyone to think they can justify not properly documenting services provided.”
a) However, that is precisely what the July 17th article states!!!! Specifically, the article advises, referring to the commonly cited shorthand statement (“if it wasn’t documented, it wasn’t done”) for the CMS Carriers’ Manual section 7103.1(i), “But with very limited exceptions, it is NOT Medicare law. When you have provided a service to a Medicare patient but find that the documentation is lacking, you can and should bill for the service, and appeal any denial of the service, unless there is a specific rule (such as the rule requiring documentation of certain medically directed anesthesia services) that requires that the service be documented.” HOWEVER, THERE ARE MULTIPLE SPECIFIC MEDICARE RULES INDICATING THAT DOCUMENTATION IS REQUIRED FOR BILLING FOR SERVICES. These include:
b) CMS Carriers’ Manual section 7103.1(i), which IS Medicare Law, does directly state that a physician is liable for refunding payments if (when requested) “Physician Does Not Submit Documentation to Substantiate That He Performed Services Billed to Program.“
i) Obviously, if the physician didn’t document the care at the time of service, he or she will not have documentation available to submit during an audit or requested review
ii) Further, as you know (and the attorney who wrote this article will readily affirm), any effort by a physician to fabricate documentation after the fact (when requested for an audit or review) would be fraudulent
c) There are multiple additional Medicare policies that indicate the requirement for documentation to substantiate the Medical Necessity (which is the “overarching criterion for payment”) of billing for a service
i) Social Security Law, section 1862(1)(A)
“SEC. 1862. [42 U.S.C. 1395y] (a) Notwithstanding any other provision of this title, no payment may be made under part A or part B for any expenses incurred for items or services—
(1)(A) which, except for items and services described in a succeeding subparagraph, are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member
(1)(B) in the case of items and services described in section 1861(s)(10), which are not reasonable and necessary for the prevention of illness”
ii) Medicare Claims Processing Manual Chapter 12 – Physicians/Nonphysician Practitioners 30.6.1 – Selection of Level of Evaluation and Management Service (page38) [ https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c12.pdf ]
Section 30.6.1: “Medical necessity of a service is the overarching criterion for payment in addition to the individual requirements of a CPT code”
iii) Medicare Bulletin, First Coast Service Options Inc, volume 8 #3, third quarter 2006, page 4 [ https://medicare.fcso.com/Publications_A/2006/138374.pdf ]
“Cloning of Medical Notes
Documentation is considered cloned when each entry in the medical record for a beneficiary is worded exactly like or similar to the previous entries. Cloning also occurs when medical documentation is exactly the same from beneficiary to beneficiary. It would not be expected that every patient had the exact same problem, symptoms, and required the exact same treatment.
Cloned documentation does not meet medical necessity requirements for coverage of services rendered due to the lack of specific, individual information. All documentation in the medical record must be specific to the patient and her/his situation at the time of the encounter. Cloning of documentation is considered a
misrepresentation of the medical necessity requirement for coverage of services. Identification of this type of documentation will lead to denial of services for lack of medical necessity and recoupment of all overpayments made.”
a) The critical concept presented in this policy is that inadequate documentation fails to support medical necessity, and it therefore fails to support billing and payment. Logically, absence of documentation is comparable to, though perhaps even more
blatant than, the non-compliant (cloned) documentation discussed in this Medicare Bulletin
b) CMS has reinforced this statement with the 2013 publication cited in #4. It discusses “cloned” documentation in terms of “limited space templates” (which I prefer to describe as “macros” rather than “templates”)
iv) CMS Manual System, Pub 100-08 Medicare Program Integrity, Transmittal 455, March 15, 2013 [ https://www.cms.gov/Regulations-and-Guidance/Guidance/Transmittals/Downloads/R455PI.pdf ]
a) “Limited Space Templates (i.e., “macros”) …. do NOT constitute sufficient documentation of a face-to-face visit and medical examination.”…..
b) “Limited space templates (i.e., “macros”) often fail to capture sufficient detailed clinical information to demonstrate that all coverage and coding requirements are met.”…..
c) “Templates (i.e., “macros”) designed to gather selected information focused primarily for reimbursement purposes are often insufficient to demonstrate that all coverage and coding requirements are met. This is often because these documents generally do not provide sufficient information to adequately show that medical necessity criteria for the item/service coverage and coding requirements are met.”