Clarification to "The Big Myth: If it Isn’t Written, it Wasn’t Done"

by  David M. Glaser, JD
Oct 6th, 2017

[ Editor's Note: Several months ago we ran an article titled, The Big Myth: “If it Isn’t Written, it Wasn’t Done” Documentation is NOT a Requirement for Most Medicare Claims, written by David M. Glaser, which resulted in a request for clarification from some of our readers.

One question posed, was “Who exactly is Mr. Glaser and what is his experience with auditing healthcare services?” Mr. Glaser is an attorney with Fredrikson & Byron Law Offices specializing in assisting healthcare professionals and entities navigate the complicated world of healthcare compliance. He works with fraud and abuse cases and civil and criminal fraud investigations among other things. He has extensive experience defending providers under investigation by Medicare and is a frequent guest on RAC Monitor’s “Monitor Mondays.” He is a national speaker on the topic of healthcare compliance, fraud and abuse, and is a favorite among speakers at the National Alliance of Medical Auditing Specialists (NAMAS) National Conference, which provides structure and guidance for those tasked with auditing healthcare services. When we approached Mr. Glaser for a response, he graciously provided the following: ]

Thank you for giving me an opportunity to respond to the comments submitted by your readers. Before I address them specifically, I would like to make a couple of observations. First, a healthy debate is an important part of the compliance process. Find-A-Code is doing a great service by encouraging interactions like this. Everyone involved in coding and compliance should keep an open mind, and question whether their beliefs are accurate. If you don’t agree with someone’s assertion, speak up and ask them to offer the law or rule on which they are relying. Carefully consider whether there is legal support for a position, and whether the rule cited is actually binding. The burden of proof should fall upon the person who claims the activity is improper. In America, absent a prohibition, something is legal. Laws don’t tell you what you CAN do; they tell you what you what is prohibited.

Second, there is a clear legal hierarchy. At the top is the Constitution. Next come statutes, or laws. Next come regulations, found in the Code of Federal Regulations and Federal Register. Then comes agency policy, often found in Manuals published by the agency. Some people refer to the Manuals as “Medicare Law.” While Manuals can, in some instances, be binding, they are NOT law. Finally, there are instructions from the contractors. Note that if something found lower in that hierarchy is inconsistent with something higher in the hierarchy, the higher document controls. That can be very important when contractors issue policies. It is quite common for contractors to issue a policy that is not valid. In short, just because someone can show you a written “rule” doesn’t mean that the rule is valid.

As a lawyer, an important part of my job is to help clients understand when a contractor or government agency has overreached its authority. Sometimes people think that you are required to do whatever a government official says. If that were true, we would not have courts; we would simply do whatever we are told. Government officials are limited in their actions. It may be easier to defer to what the agency says, and you may opt to accept the government’s position rather than challenge it. But to make an informed decision you should know what actions you can defend if you choose, or need, to do so. This is why it is important to choose legal counsel who can help you identify both the government’s position and any flaws in it. So what is the state of the law with respect to documentation? There is a Medicare statute, section 1833e of the Social Security Act, that says:

“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.”

What does the statute require? It places a burden on the hospital or physician to “furnish information” to Medicare to support a claim. Here is the important question: Does the statute say that the information can be found ONLY in the medical record? The answer, of course, is no, it does not. It allows you to furnish information any way you choose. Certainly the wisest course is to document information in the medical record. I always advise clients that failing to document in the medical record may result in the need to hire me, and while I love being hired, I also want the best result for my clients, and the best result is for you to save your money.

If the question were whether it is BEST to document in the record, I would agree that the answer is “yes.”   But the question I was answering was whether you are REQUIRED to document in the record. I believe readers are correct in noting that it is foolish not to document in the record, and that you are risking significant penalties if you disregard your documentation. But that is still different than whether you are REQUIRED to document in the medical record. You can furnish the information in a letter, or in testimony. That isn’t preferred, but is possible.

One reader asked, “Is it illegal to add or change the documentation in a record that has been requested for a review or an audit?” Certainly altering an existing record in a misleading fashion can result in accusations of wrongdoing. It is perfectly acceptable, however, to add a properly dated addendum to a record, or to write a letter explaining facts that aren’t contained in the record. That is NOT a fraudulent fabrication. A court certainly may question whether the physician accurately recalls the information, but that doesn’t mean it is improper to offer it.

Let’s examine another question posed, “Is a provider liable for refunding payments if Medicare requests documentation but it doesn’t fully support that he performed the services billed?” Chapter 3 of the Medicare Financial Management Manual offers this example of when a physician is liable for an overpayment, in the following text:

F. The Provider, Physician, or Other Supplier Does Not Submit Documentation to Substantiate That It Performed the Services Billed to the Program Where There Is a Question as to Whether the Services Were Performed.

Medicare Financial Management Manual, Chapter 3, Section 90.1

As the language confirms, unless there is a question as to whether the service was actually performed, the documentation does not matter. The ultimate test for coverage is whether the service was performed, not whether it was documented. If a person can show that the service was performed, the absence of medical record documentation typically does not doom the claim.

I say “typically” because there are some regulations that explicitly require documentation for particular services. For example, the regulations for medically directed anesthesia services include documentation expectations. It will be more difficult to challenge overpayments when the service does not satisfy those regulations.

Please note that “more difficult” still doesn’t mean “impossible.” Part of my goal in writing my initial article was to explain that when you have provided a service but are missing documentation, you should not automatically refund the money to Medicare. If you are in an overpayment or fraud case, you should not immediately concede. There are compelling legal arguments you can make to keep the money you have earned.

With any legal issue, it is important to know whether the courts have analyzed it. In this case they have, and they have reached the same conclusion. For example, in United States ex rel. Keltner v. Lakeshore Medical Clinic, Ltd., No. 11-CV-00892, 2013 WL 1307013 (E.D. Wis. March 28, 2013), a relator asserted that when a documentation review found that a medical record did not meet the E&M Guidelines for the level of bill submitted, the claim was fraudulent. The Court disagreed, concluding that for the relator to demonstrate overbilling, it would be necessary to “establish that the defendant did not actually provide services it billed for.” Keltner at *6-7. Merely proving that the documentation was deficient was not enough to prevail in the case.

And finally, in response to the last question, “Is the guidance issued by the Medicare Administrative Contractors (MAC) all you should rely on?” I want to close with an observation about the sources upon which you should rely. Publications containing guidance issued by Medicare Administrative Contractors (“MACs”) are at the very bottom of the Medicare hierarchy, and there have been many examples of MACs issuing inaccurate guidance. For example, I have seen publications from several MACs assert that scribes are not allowed. MACs lack the authority to make such a declaration, and ten seconds of thought confirms that the assertion that physicians must personally document information is baseless. Has anyone seriously argued that Medicare rules prohibit dictation? When a physician dictates, a typist is creating the medical record. How is that different from a scribe recording information at the physician’s direction? It isn’t. That is merely one example of a situation where statements by a MAC are unsupported by law. The fact that a MAC publication says something is not conclusive proof that it is legally accurate.

Organizations should take the time to improve their medical record documentation. That effort lowers the odds you will need to hire a lawyer to defend you. But if you are ever in a situation where the documentation is deficient, the situation is not as dire as many would have you think. I have been lucky enough to help many organizations in situations where documentation is missing. That experience confirms that for Medicare “if it isn’t written, it wasn’t done” is advice, not law.

Health care regulation is very complex. There are too many laws, regulations and policies for any one person to know them all. I regularly learn about provisions I didn’t know. I am grateful that people take the time to challenge the legal arguments I make because I think that increases the odds I will be right, and helps improve the arguments.