(June 5, 2017): Despite the fact that only three treatment services are covered by Medicare, the number of Medicare chiropractic audits conducted by the Department of Health Human Services (HHS), Office of Inspector General (OIG), has remained high over the last decade and is anticipated to grow throughout 2017 and 2018. As you are aware, the Department of Health and Human Services (HHS), Office of Inspector General (OIG), concluded that in Fiscal Year 2016 the Improper Payment Rate for chiropractic services was 46.0%. Even more alarming is the fact that OIG has found that the Improper Payment Rate of chiropractic Part B Medicare claims was the highest of any Part B service type in both FY 2015 and FY 2016.
I. Medicare Chiropractic Audits are Anticipated to Intensify in FY 2017 and FY 2018:
The already-active Medicare audit landscape facing chiropractors is likely the proverbial “calm before the storm.” When you think of “Medicare Access and CHIP Reauthorization Act of 2015” (MACRA), it’s likely you first think of the statute’s Quality Payment Program provisions which are intended to tie Medicare’s payments to the quality of the medical being provided. Unfortunately, the documentation of chiropractic services have the unique distinction of being the only Part B service that are expressly address in MACRA. A detailed discussion of the documentation requirements for chiropractic services under Medicare Part A will be addressed in a separate article. The bottom line is simple – chiropractors participating in the Medicare Part B program are strongly encouraged to have a comprehensive assessment of their services conducted as soon as possible. An overview of the current audit landscape is discussed below.
II. Almost All Part B Medicare Chiropractic Audits Find Documentation Problems:
As set out in OIG’s Improper Payment Report for FY 2016, when examining the 46% of chiropractic services that were denied, the Centers for Medicare and Medicaid Services (CMS) found that 98.4% of the chiropractic denied claims were denied because of NO DOCUMENTATION or INSUFFICIENT DOCUMENTATION. We believe that this is due, in large part, to the fact that the clinical reviewers employed by a Zone Program Integrity Contractor (ZPIC) or a Medicare Administrative Contractor (MAC) to audit your chiropractic claims (primarily Registered Nurses), aren’t really qualified to conduct these reviews. Sure, they can read Medicare’s guidelines governing medical necessity, coverage, documentation, coding and billing – but that doesn’t mean that they truly understand what constitutes a “subluxation” or that they can recognize that the patient’s condition warrants manual manipulation. The vast majority of medical reviewers examining your claims have little or no substantive knowledge and training in the field of chiropractic care. Therefore, why are you surprised that the ZPIC reviewer is now alleging that 80$ – 100% of the claims you have billed to Medicare do not qualify for coverage or payment?
III. Medicare’s Position with Respect to “Medical Necessity”:
Under Medicare, the definition of “medical necessity” is generally defined under Title XVIII of the Social Security Act, Section 1862(a)(1)(a): As the statute provides:
“No payment may be made under Part A or Part B for expenses incurred for items or services which are not reasonable and necessary for the diagnosis or treatment of necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.”
Despite the fact that chiropractors are recognized as physicians by Medicare, CMS has steadfastly refused to cover most of the traditional care and treatment services that are offered by licensed chiropractors around the country. Medicare Part B only covers treatment by means of manual manipulation of the spine that is used to correct a subluxation (i.e. spinal manipulation). Moreover, the coverage policies developed by CMS and its contractors make it clear that the agency has restricted the definition of what is considered to be “medically necessary” chiropractic care to only include spinal manipulation services that are active or corrective in nature.
IV. Maintenance Therapy is Not Covered by Medicare:
CMS has essentially taken the position that maintenance therapy does not qualify as medically necessary care and therefore does not qualify for coverage and payment. As set out in the Medicare Benefit Policy Manual, Section 30.5.B:
Under the Medicare program, Chiropractic maintenance therapy is not considered to be medically reasonable or necessary, and is therefore not payable. Maintenance therapy is defined as a treatment plan that seeks to prevent disease, promote health, and prolong and enhance the quality of life; or therapy that is performed to maintain or prevent deterioration of a chronic condition. When further clinical improvement cannot reasonably be expected from continuous ongoing care, and the chiropractic treatment becomes supportive rather than corrective in nature, the treatment is then considered maintenance therapy. (emphasis added).
The fact that chiropractic care used to “prevent deterioration of a chronic condition” remains non-covered is especially frustrating in light of the 2013 settlement in the case Jimmo v. Sebelius. Earlier this year, the court approved a Corrective Statement that is to be used by CMS to affirmatively discontinue the use of an “Improvement Standard” for Medicare coverage. Unfortunately, chiropractors and dentists were specifically carved out of this new rule by CMS. As CMS noted in its January 14, 2014 guidance intended to clarify the agency’s new position after the settlement in Jimmo v. Sebelius, Pub. 100-02 Medicare Benefit Policy. Transmittal 179 expressly provides that:
Chiropractors and doctors of dental surgery or dental medicine are not considered physicians for therapy services and may neither refer patients for rehabilitation therapy services nor establish therapy plans of care. (emphasis added).
V. The Types of Chiropractic Services Covered by Medicare are Extremely Limited.
Under Medicare, the types of chiropractic services that are eligible for coverage and treatment are limited to three chiropractor-administered services. To ensure that claims are processed in in an orderly and consistent fashion, Medicare employs the Healthcare Common Procedure Coding System (HCPCS) developed by the American Medical Association (AMA). Level I of this standardized coding system is comprised of Current Procedural Terminology (CPT) codes that the AMA maintains. The CPT uniform coding system consists of descriptive terms and identifying codes that are used primarily to identify medical services and procedures furnished by physicians and other health care professionals. The CPT codes of the three chiropractic manipulation services that may qualify for payment by Medicare include the following:
98940: Chiropractic Manipulative Treatment (CMT); spinal, one or two regions;
98941: CMT; spinal, three to four regions; and
98942: CMT; spinal, five regions.
To add insult to injury, even though a number of Medicare procedures may be within a licensed chiropractor’s state-defined scope of practice, with the exception of the three services described above, no other diagnostic or therapeutic service furnished by a licensed chiropractor, or under his / her order, is considered a covered service under Medicare. We have handled a number of cases in recent years where the medical necessity of these manipulative treatments was never challenged by the auditing ZPIC. Nevertheless, almost all of the otherwise-covered chiropractic claims were denied because the CMS program integrity contractor concluded that the services were improperly documented. The primary reasons that these claims have been denied have been documentation-related.
VI. Medicare’s Position with Respect to the Documentation of Chiropractic Services:
When providing one of these three covered services, it is essential that you carefully review Medicare’s current documentation requirements. The documentation mandates described under MACRA are not the necessarily the litmus test you should be applying. The statutory requirements mandated under MACRA have been reviewed and interpreted by CMS so that appropriate regulations and policies implanting any applicable statutory provisions have been developed. Additionally, as described in Section IX below, MACs are given some latitude in further defining what they require in terms of documentation.
VII. Risks in Using a “Travel Card” if Your Practice is Subjected to a Chiropractic Audit:
Chiropractic services primarily documented with a “travel card” are likely to be denied if you are audited by a CMS program integrity contractor. Although it has been a while since we have defended a case of this type, they still occasionally arise. For decades, travel cards have been used by chiropractors to document the care and treatment services they have provided. Travel cards were easy and could provide an excellent picture of whether a patient was progressing. While additional information (such as x-rays and other diagnostic studies) were also recorded in the patient’s medical record, the travel card was, and still is, utilized in a number of practices as a documentation tool. Unfortunately, if your Medicare claims are ever audited by a ZPIC or MAC, you are likely to face a multitude of problems if you are relying on a travel card to document your services. Unfortunately, CMS contractors (such as ZPICs and MACs)) don’t know how to read a travel card. While there may be isolated exceptions to this statement, in the cases we have handled over the last decade, none of the auditors working for a ZPIC or for the MAC had been trained on how to read and interpret a travel card. Additionally, most travel cards still in use don’t even come close to documenting all of the various points are set out in a MAC’s LCD. As a result, when auditing chiropractic claims billed to Medicare, they almost always found a 100% error rate.
VIII. Are Applicable Documentation Requirements Met if We Utilize Both a Travel Card and SOAP Note to Record the Chiropractic Services Provided?
Efforts to address the travel card problem by also documenting their services in a SOAP note format have often been unsuccessful. Many experienced chiropractors love travel cards. Their ease of use and ability to provide a quick, accurate picture of the patient’s prior care and progress are invaluable in a busy practice. Recognizing that both government and private payors now require that a more detailed discussion of the patient’s care be documented, some chiropractors also document the care provided in a SOAP note format. Unfortunately, in the cases we have seen, this approach typically fails to fully document the points that are now required by governmental and private payors alike.
IX. Basic Rule for Documentation Under the Social Security Act:
Medicare’s documentation requirements are based on the fundamental obligation set out in Section 1833(e) of the Social Security Act which states that:
“no payment shall be made to any provider of services or other person under this part unless there has been furnished such information as may be necessary in order to determine the amounts due such provider or other person under this part for the period with respect to which the amounts are being paid or for any prior period.” (emphasis added).
X. Complying with Medicare’s Documentation Requirements:
If you intend to bill Medicare for one of the three manual manipulation services set out above, it is essential that you regularly check to ensure that your documentation practices fully comply with Medicare’s requirements. When is the last time you reviewed the documentation and coverage requirements issued applicable for your jurisdiction? MACs have been delegated the responsibility for developing Local Coverage Determination (LCD) guidance by the Secretary for the Department of Health and Human Services (HHS) under section 1395y(a) of the Social Security Act. This responsibility also includes the promulgation of reasonable and necessary coverage determinations. Therefore, in the absence of applicable National Coverage Determination (NCD) guidance, MACs are responsible issuing LCD guidance. LCDs must adhere with applicable requirements set out under the Social Security Act, federal regulations, CMS rulings, Medicare Manual Provisions, and other forms of guidance.
An overview of the coverage and documentation requirements that must be met when providing Medicare-covered chiropractic services is set out in the Section 240.1. of the Medicare Benefit Policy Manual. Additionally, the Medicare Program Integrity Manual (PIM), mandates that any LCD that is promulgated must reflect local medical practice within the contractor’s jurisdiction and must be supported by substantial medical evidence. A CMS contractor must ensure that LCDs are consistent with applicable Medicare statutory provisions, regulations, NCDs, and other federal guidance.
When developing an LCD, MACs also consider medical literature, the advice of medical societies and consultants, public comments, and comments from the Medicare provider community. Like NCDs, an LCD’s coverage guidance on whether an item is medically “reasonable and necessary” means that the item is safe and effective and not experimental or investigational as determined by the Food and Drug Administration (FDA) approval process. Working within these parameters, it is important to recognize that the specific requirements for documenting your chiropractic claims may vary from one MAC region to another.
For instance, National Government Services (NGS) has issued an LCD titled “Chiropractic Services – L27350.”  For chiropractic services to be medically indicated in the region managed by NGS:
“The patient must have a significant health problem in the form of a neuromusculoskeletal condition necessitating treatment, and the manipulative services rendered must have a direct therapeutic relationship to the patient’s condition and provide reasonable expectation of recovery or improvement of function. The patient must have a subluxation of the spine as demonstrated by x-ray or physical exam. (CMS Publication 100-02, Medicare Benefit Policy Manual, Chapter 15, Section 240.1.3).”
Under its section titled Limitations, NGS essentially set out the coverage requirements that must be met in order for chiropractic services to qualify for coverage and payment. Moreover, ICD codes that support medical necessity are laid out in the guidance. Should you code a chiropractic service with a diagnosis code that does not qualify for coverage, edits in the claims processing programs run by the MAC will automatically identify and deny the claims.
The documentation requirements set out in the LCD issued by NGS are typical of what you are likely to find in your particular region. Nevertheless, you cannot assume that they are the same. Check the LCD documentation requirements that have been published by your MAC. The documentation requirements that are applied by NGS and other MACs are quite extensive. A chiropractic audit of your Medicare claims will heavily rely on the coverage requirements set out in the LCD covering your region.
XI. Elements to Review When Assessing Your Claims in Advance of a Medicare Chiropractic Audit:
The best time to assess your compliance with applicable Medicare medical necessity, coverage, documentation, coding and billing requirements is NOW, not after an audit has already been initiated by Medicare. There are seven elements to be considered when assessing whether any chiropractic claims will qualify for coverage and payment. These elements are:
Element #1: Medical Necessity – In addressing this element, every treating health care provider should ask the following question: “Were the services administered medically necessary?”
Element #2: Services Were Provided – The second issue addressed is whether the services at issue were actually provided.
Element #3: No Statutory Violations – Are the services “tainted” by any statutory or regulatory violation, such as the Stark Law, federal Anti-Kickback or a False Claims Act violation?
Element #4: Meets all Coverage Rules – Do the services meet Medicare’s coverage requirements?
Element #5: Fully Documented – Have the services been properly and fully documented?
Element #6: Properly Coded – Were the services correctly coded?
Element #7: Properly Billed – Were the services correctly billed to Medicare?
XII. Consultants and Device Manufacturer Representatives:
Take care when conducting an internal review of your documentation and billing practices. Should you decide to bring in an outside consultant to assist you in preparing for a chiropractic audit, you should be prepared to apply the doctrine of “caveat emptor” (let the buyer beware). The types of problems our clients have faced when engaging consultants generally fall within one of two categories, both of which are discussed below.
- If it sounds too good to be true – it probably is!
Unfortunately, some consultants and device manufacturer representatives have used the challenging financial environment now facing chiropractic practices to their advantage. If a chiropractic consultant claims to have “proprietary” or “special” methods that can raise your billing revenues, or makes similar claims, be careful.
We have represented numerous chiropractic and medical practices over the years that have been led astray by coding and / or billing consultants, device manufacturers and others purporting to have identified supposed legal methods of coding and billing non-covered services so that they will, in fact, pass through the MACs edits and be paid. Years later, the chiropractic practice may learn that the practices they taught to employ are improper and do not qualify for payment.
- Even Well-Meaning Consultants May Adversely Impact Your Practice.
Imagine for a moment that in an effort to improve your level of regulatory compliance, you have decided to engage a well-known coding and billing consultant to review your medical necessity, coverage, documentation, coding and billing practices. Assuming that the consultant is thorough, chances are that he / she will present you with a list of problems at the end of their review, you need to keep in mind that their findings are not privileged. In other words, any reports that they issue, work papers that they prepare and actions that they take are discoverable by the government. As a result, a list of problems identified by a coding or billing consultant can essentially be used as a roadmap for the prosecution.
You should therefore consider having a qualified health lawyer engage the consultant and direct his or her work. Any reports would be issued to the attorney, not to you or your chiropractic practice. As a result, the work product prepared by the consultant would likely qualify and privileged and would not be discoverable by the government. Does this mean that any errors, improper claims or other problems identified by the consultant could be “swept under the rug”? No, not at all, but it may give the practice considerably more latitude in how they ultimately take remedial action. Improper payments must be reported and repaid to Medicare in a timely fashion.. The problem we typically see is that non-attorneys are imprecise in how they describe a problem. We have seen reports prepared by well-meaning consultants that are full of hyperbole and characterize certain conduct as possible fraud, when in fact, the actions that led to an overpayment were nothing more than a mere accident, error or mistake.
- Call Liles Parker if Your Chiropractic Practice is Being Audited.
Liles Parker attorneys are not merely dedicated health lawyers. We require that our associate attorneys study for and pass the certification requirements to be a Certified Medical Reimbursement Specialist. Additionally, most of our attorneys and paralegals are Certified Medical Compliance Officers. Our staff has extensive experience conducting pre-audit assessments of provider documentation, coding and billing practices. To the extent that your practice is undergoing a Medicare chiropractic audit by a UPIC, ZPIC or MAC, it isn’t too late to obtain a favorable result. Our health lawyers have extensive knowledge and experience of the Medicare appeals process, up to and including post-ALJ appeals to the Medicare Appeals Counsel and Federal Court.
Robert W. Liles, M.S., M.B.A., J.D., has worked on the provider side in health care management, served as a federal prosecutor and now represents chiropractors and other health care providers around the country in connection with Medicare and private payor audits and investigations. For a complementary consultation, please call us at: 1 (800) 475-1906.
 Chiropractic services were not separately broken out in OIG’s Medicare Fee-For-Service 2014 Improper Payment Report. https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/CERT/Downloads/MedicareFeeforService2014ImproperPaymentsReport.pdf
 Effective January 1, 2017.
 These three claims are expressly covered in Local Coverage Determination (LCD) guidance issued by National Government Services (NGS) and other Medicare Administrative Contractors (MACs). For additional information please see: https://apps.ngsmedicare.com/lcd/LCD_L27350.htm
 The acronym “SOAP” is a long-standing approach utilized by a variety of medical disciplines when documenting their evaluation of a patient and the plan of care to be followed. SOAP stands for Subjective, Objective, Assessment, and Plan.
 See 42 U.S.C. § 1395h.
 See 42 U.S.C. § 1395ff(f)(2)(B).
 LCDs are defined as “determination[s] by a [contractor] under. . . part B. . . respecting whether or not a particular item or service is covered. . . in accordance with section 1395y(a)(1)(A).”
 See 64 Fed. Reg. 22,619, 22,621 (Apr. 27, 1999) (stating that the purpose of local medical review policies is to explain to the public and the medical community “when an item or service will be considered ‘reasonable and necessary’ and thus eligible for coverage under the Medicare statute”); PIM Ch.1, §§ 2.1.B, 18.104.22.168, 2.3.2.
 PIM, supra note 17, at § 2.1.B.
 PIM, supra note 17, at §1.2.
 See Abbott Laboratories, at 29.
 Unscrupulous business consultants are nothing new. Almost 20 years ago, HHS, Office of Inspector General (OIG) recognized this problem and issued guidance to providers outlining its concerns. In June 2001, OIG issued a “Special Advisory” titled “Practices of Business Consultants” which detailed the agency’s concerns in this regard. As OIG noted, health care providers and suppliers need to be wary of potential:
- Illegal or Misleading Representations.
- Promises and Guarantees.
- Encouraging Abusive Practices.
- Discouraging Compliance Efforts.