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Heed Caution: Takeaways From the OIG's Advance Care Planning Report



The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) reported in November 2022 that many providers are not complying with Medicare’s billing rules for advance care planning services. In large part, the OIG’s findings centered around providers failing to document separately for time spent on advance care planning versus time spent on concurrent services provided during the same patient visit. In this episode, Husch Blackwell’s Meg PekarskeAndrew Brenton, and Zaina Niles break down the OIG report and what the key takeaways are for hospices.

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00;00;05;01 - 00;00;23;16
Meg Pekarske
Hello and welcome to Hospice Insights, The Law and Beyond, where we connect you to what matters in the ever changing world of hospice and palliative care. Heed Caution: Takeaways from the OIG’s Advance Care Planning Report. Andrew, Zaina, welcome. So glad to be here with you.

00;00;23;29 - 00;00;26;03
Andrew Brenton
Thank you. Yes, so happy to be here.

00;00;26;09 - 00;00;27;17
Zaina Niles
Hi, Meg. Thanks for having us.

00;00;27;18 - 00;01;10;15
Meg Pekarske
Andrew, let’s start out talking about sort of big picture on this advance care planning report. I know when I read it, I wasn't necessarily surprised at some of the things that they talked about. But I think, you know, they as usual, I mean, they're finding that there are some errors and the documentation doesn't match up with what they want to see. But there was some interesting sort of back and forth between CMS and OIG in this report that I want to talk about. But let's start with sort of the nuts and bolts here. What what were the findings of the report about advance care planning? Were people doing it right or wrong?

00;01;10;27 - 00;02;17;14
Andrew Brenton
Well, according to the OIG, people generally were doing it wrong. So the OIG looked at a sample of about 700 advance care planning services that were billed, and they looked at two specific zip codes. And kind of headline finding is that for two third of those visits about, they did not find that the documentation was sufficient and that the providers did not comply with the advance care planning billing requirements, that the kind of documentation issues that the OIG pointed out, a lot of them had to do with kind of current services. So the idea would have been looking at a visit for advance care planning or there was another either time based or two service based service that was included within that visit. But the provider did not separately document the concurrent service from the advance care planning. So that was an issue. There were some issues just with the documentation, not even referencing the advance care planning or the provider not even having documentation, which are sort of obvious issues.

00;02;17;24 - 00;04;25;23
Meg Pekarske
So I had some deja vu when I read this because it made me think about the report from it's probably seven or eight years ago and we'll include a link to this current report about advance care planning and then the report from a number of years ago about in codes and the high error rates, like 80 plus percent that the OIG found in that documentation as well, which is slightly different issues. But are you really showing what it is you're doing? Like for me and I'm codes you have to add and now that the rules have changed your bed but, you are a heavy reviewer. You know all of these systems, how much time you spent all these different things and seeing that the documentation doesn't necessarily align with the code. But I guess why I wanted to do a podcast on this was, I think physician billing in general I think is under scrutiny, you know, under scrutiny in a lot of different ways. And I think that the advance care planning codes in particular for hospice and to the extent we use our practitioners, use these codes in our palliative care programs or in hospice, I mean, this is something we need to be attuned to because other auditors could be picking up on these same findings or bring further attention to them. So I think it was really interesting. Now, maybe even the thing that was most interesting in this report was CMS response to some of the things that OIG said, which again reminded me somewhat of this in code report, where it's not that they disagreed necessarily with the findings, but they didn't seem overly concerned. And then in particular, Andrew, you know, OIG said, hey, we found that a number of beneficial has got multiple advance care planning codes. I think they bring up the example. A patient got 15 different advance care planning visits. What was CMS’s response to that?

00;04;26;02 - 00;05;16;29
Andrew Brenton
Well, just like you said, they kind of part of some cold water on that. CMS doesn't seem like they're really interested in putting limits on just like the aggregate number of advance care planning services that can be built through a given beneficiary, which was sort of what the I think the idea was was suggesting to kind of safeguard against, yeah, those kind of outlier cases where we have like 15 or 16 services for the same patient. So seeing that did not seem to like that idea. Now they did say that if you have multiple advance care planning services for the same patient, they they do want to see a documented change in the beneficiary status. End of life care wishes are both. But to your point, you know, not interested in actually imposing like a cap on the number of services.

00;05;17;12 - 00;07;00;07
Meg Pekarske
Which I think was really important because they're not trying to step into the relationship between the physician and their patient and making medical decisions about, you know, what's medically appropriate. But I think heating caution, those have more substantial documentation. So do in advance care planning visit every single month and even if you documented but it looks just like the documentation before you know, it's probably going to lead to the same result as a denial, not because you exceeded some predetermined cap, but more because your documentation doesn't support the need. But Zaina, let's turn to you for a second, because I read this report and was thinking about all of the physician billing denials we're seeing in our hospice audits, and in particular, when there's concurrent face to face visit and also a medically necessary visit. We've been seeing a lot of denials around that. And so while this isn't advanced care planning, this idea about if you're doing it advance care planning as part of your visit, and then the other part of your visit is doing something else, you need to make sure that you're separating and accounting for your time. And that's exactly what we're seeing the government do as it relates to face to face visits is how are you accounting for the face to face visit portion versus if you're billing for a medically necessary portion. So so elaborate on that a little bit of what you're seeing, Zaina.

00;07;00;07 - 00;08;03;12
Zaina Niles
Sure, so face-to-face visits are not separately billable, but concurrent services may be if, as Andrew stated, they're properly documented and reviewers sometimes allege that physician visits aren't separately billable as they occur concurrently with a required face to face visit, but they are separately billable if they provide reasonable and necessary non administrative patient care. So hospices can appropriately bill for any non administrative portion of these services or any care that's really above and beyond what would typically be provided in a required face to face visit. For example, physician visits are separately billable if they involve medical decision making that's not administrative or supervisory in nature. And the technical denials that arise from the physician visits that occur concurrently with administrative face to face visits are really rooted in a lack of proper documentation That's analogous to the documentation issues for advance care planning addressed by the OIG and summarized by Andrew earlier.

00;08;03;13 - 00;09;43;15
Meg Pekarske
In the past we saw when auditors So UPICs, MACs, whatever they look at our documentation, they would look to see is there a physician visit that correlates on the claim form. You know, you build this, Is there a visit note that's like the old days now. And if you had a visit now, then it was like, okay, but now I think they're looking more deeply at that and looking at, well, you build this code. Is that really supported by your documentation? Sort of like a traditional part B review where is this supporting this code? I think the thing that's most often coming up is exactly what you said. Saying is a lot of the physician visits that are getting denied have a face to face component to them. And then, you know, there isn't a way that you can easily see the difference between the face to face portion. So it looks like you're billing for the physician visit, even though I don't think that that's what people are intending to do. So I think best practice really is having separate documentation for your face to face visit from any billable service you may provide to make that crystal clear. I mean, CMS has not said that's absolutely required, but it's the easiest way to sort of meet the standard as opposed to having one consolidated node. Even if you split into two chunks, it just gets easier. But anyway, so I guess any closing thoughts, Andrew, from you on this?

00;09;43;19 - 00;10;33;06
Andrew Brenton
Well, you know, just in terms of talking, you know, you mentioned kind of selecting the right E&M code to describe the visit that you're billing in the OIG report. They do seem to go out of its way to describe, you know, sort of how to calculate units of time. So, you know, it seems like maybe providers weren't doing that in the sample claim that they looked at. But essentially, if I give any andme service, you know, says that it needs to be between zero and 30 minutes in length, you can only build that if you reach the midway point. So essentially you have to have one more than half. In that case, it would be 16. So you can really only bill that service if you have in that example, 16 minutes. So I think that's important to remember.

00;10;33;15 - 00;10;57;22
Meg Pekarske
Sounds a lot like our lives of telling time. Is that 14 minutes or is that 16 minutes? It's just, yeah. Which it's frustrating. And so I think we can have some affinity for physicians who roll their eyes at some of this. You know, like ask, jeez, you're keeping in 16 minutes. I got to keep track of that. But I think you're exactly right. Really important.

00;10;57;22 - 00;11;48;05
Andrew Brenton
Yeah, and I guess the other thing I notice, I guess, is that the OIG in a couple of different places referenced that they thought that this report constituted a credible information of a potential overpayment. So if you see those words, that's that's sort of an allusion to this is the 60 day repayment rule, because credible information of potential overpayment is the trigger for either making a repayment under that rule or doing a reasonable diligence investigation to determine if there in fact was an overpayment. So I think all the more reason to, you know, maybe take a look at your current documentation practices for for any codes in particular and just make sure that you're, you know, separating concurrent services separately, documenting them and then, you know, calculating the time correctly.

00;11;48;05 - 00;13;40;02
Meg Pekarske
I think that that that's exactly right. And I think in general, hospice and palliative care programs have spent more time with educating physician billing and doing as part of their compliance plan outside and outside consultant review. I just think that this is you know, we're going to post the report from a number of years ago where it's E&M codes. Have you 80 plus percent error rate. And I mean, this is always going to be low hanging fruit. And this report is sort of just adding to the mix, which, I mean, I think folks can get education fatigue right. Where people are just like, are you telling me I'm doing everything wrong all the time? And like, I need to spend more time documenting. So I think we got to be cautious of that so people can really hear the message. But I think there are, as you said, some pretty simple ways that I think obviously people who have no documentation, that's not good. But I think this whole idea of how do we provide tools to help people keep track of their time and also know the rules, right? I mean, people went to medical school. They didn't go to coding school, right? I mean, I think that there is training on that. But as hospices get further upstream and look to further expand their palliative care programs, this is going to be more important than ever. That gets bigger chunk of the pie, because right now, physician billing is such a small portion of what I think hospice and palliative care providers. Bill But advance care planning is something that I know our clients do well for. So really relevant report. Any closing thoughts from you, Zaina?

00;13;40;06 - 00;14;14;12
Zaina Niles
No, I would just echo what you and Andrew have said those three ways that hospices and other providers are not complying with billing requirements, that no documentation or no document portion of the concurrent service or the advance care planning discussion. And as I discussed, that carries across other areas of hospice as well. So something to keep in mind and maybe at just moving forward if you're not already doing those things.

00;14;14;21 - 00;15;00;05
Meg Pekarske
Yep. Well, interesting report nonetheless. And it's good to know that CMS can sometimes take a contrary position from OIG. You don't see it very often, but you know, I think it's important that they they didn't want to be prescriptive when it comes to providing medical care to beneficiaries. So anyway, well, thanks so much for your time and so I appreciate both of you. And and thanks for for sharing your wisdom on this call. And thank you listeners for for being loyal listeners or if you're new to finding us. Thanks for giving us a listen and hope that you follow and subscribe and then we release every two weeks. So see you next time.

00;15;03;18 - 00;15;19;10
Meg Pekarske
Well, that's it for today's episode of Hospice Insights, The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at or sign up wherever you get your podcasts. Till next time, may the wind be at your back.


Andrew Brenton

Senior Counsel

Zaina A. Niles