Physicians Seeking Payment Above Maximum Reasonable Fees

CWCI has received numerous reports and questions about physicians asking for written agreement to pay for certain services above fee schedule maximum allowances. Rumor and panic abounds and at least one vendor has been encouraging providers during webinars to demand a written agreement for separate payment for record review and/or reports and is providing a “contract” form for that purpose. Even some AMEs and QMEs are under the impression that they should refuse to provide services unless they demand and receive separate reimbursement for record review. Of course that’s nonsense – the Medical Legal Fee Schedule has not changed a whit. The following background information may be helpful.

As you know, the Physician Fee schedule was changed to an RBRVS-based schedule for services provided on or after 1/1/14. When a physician sees an injured employee in his or her office, an Evaluation and Management (E/M) service is billed. This was also so for California workers’ compensation under the previous Physician Fee Schedule. The office visit reimbursement continues to include payment for not only the face-to-face time, but also the pre- and post- visit services — including record review, written reports, telephone calls, etc.  Because an initial office visit typically involves new history and a review of records from previous practitioners and others, its maximum reasonable allowance is higher than for an established patient visit. Under the new RBRVS fee schedule allowances for initial and established patient office visits have increased and will continue to increase over the four-year transition to enhanced Medicare conversion factors, and beyond.  According to RAND’s August 2013 report, average E/M service allowances (before inflation adjustment) will increase by 15.8% in 2014 and by 39.5% over the four-year RBRVS transition. They are expected to increase even more when the California workers’ compensation annual inflation adjustments are applied.

Many providers do not like that Medicare recently eliminated separate codes for consultation E/M services (which, until now, were allowed a higher payment than initial and established patient visits). The new rules require consultations to be billed under the initial visit E/M code – a change made by Medicare because the service is really the same as for an initial office visit, and because an E/M consultation code was often incorrectly billed when a patient was referred for treatment. This was also the case in California workers’ compensation and those Medicare rules now also apply to California workers’ compensation services — except separate payment is still allowed for a primary treating physician’s progress reports and permanent and stationary reports, and certain other limited reports. When Medicare stopped paying for E/M consultation services, it redirected moneys spent on consultation codes to increase the E/M office visit allowances, and to the extent that more work is involved for workers’ compensation patients, the workers’ compensation allowances will beat least 20% higher than those for Medicare patients.

The following language was pulled from CPT rules and was also in the E/M General Information and Ground Rules of the pre-2014 OMFS:

• Face-to-face (intra-) services include such tasks as obtaining a history, performing an examination, and counseling the patient.
• Non-face-to-face (pre- and post-encounter) services include such tasks as reviewing records and tests, arranging for further services, and communicating further with other professionals and the patient through written reports and telephone contact. 
• Reimbursement for E/M office services includes both intra-services (face-to-face services) and pre- and post-encounter services (non-face-to-face services).
• The pre and post face-to-face work associated with an encounter was included in calculating the total work. 

The level of E/M service depends on the complexity of history, examination, and medical decision-making. The level of decision-making depends in part on the amount and complexity of medical records.  Here is an excerpt from page 17 of the HHS/CMS Evaluation and Management Services Guide that is dated December 2010:

Medical Decision Making

Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option, which is determined by considering the following factors:
– The number of possible diagnoses and/or the number of management options that must be considered;
– The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed; and
-The risk of significant complications, morbidity, and/or mortality as well as comorbidities associated with the patient’s presenting problem(s), the diagnostic procedure(s), and/or the possible management options.
The HHS/CMS Evaluation and Management Services Guide is posted on the CMS website:www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/eval_mgmt_serv_guide-ICN006764.pdf.
Also, here is a link to the Medicare Claims Processing Manual:

http://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c12.pdf.
E/M services are covered in section 30.6 of this manual, beginning on page 39. Section 30 on pg. 23 addresses the Correct Coding Initiative (CCI) policy. The National Correct Coding Initiative (NCCI) was adopted as part of the Physician Fee Schedule revisions.

30 – Correct Coding Policy

The Correct Coding Initiative was developed to promote national correct coding methodologies and to control improper coding leading to inappropriate payment in Part B claims. Refer to Chapter 23 for additional information on the initiative.
The principles for the correct coding policy are:
The service represents the standard of care in accomplishing the overall procedure;
The service is necessary to successfully accomplish the comprehensive procedure. Failure to perform the service may compromise the success of the procedure; and
The service does not represent a separately identifiable procedure unrelated to the comprehensive procedure planned.

A physician’s refusal to review relevant medical records or provide a report may impact a patient’s welfare, and refusing to do so unless duplicate payment is agreed to is inappropriate from a coding perspective and possibly for other ethical and legal reasons. Exceptions should be rare. Physicians are not often asked to review records and produce a non-ML report without seeing the injured employee.