Can I be honest here? I am thrilled that I am finished with the 1995 and 1997 ("95 and 97") evaluation and management (E/M) guidelines for office and outpatient visits. Okay, okay, obviously I am not serious, but I am happy seeing that sentence typed out (and a girl can dream)! In my opinion, in all of my years auditing claims and documentation for office visits, I believe the 95 and 97 guidelines have created the proverbial "bean-counting" method of choosing a level of E/M CPT® code. I think this has undoubtedly led to one of the most prevailing compliance risks, or what is known as up-coding.

Specifically, this bean-counting can be found when providers are documenting the medical history and physical examination components of a patient's office visit. Under both 95 and 97 guidelines, the level of E/M can be scored higher if all reviews of systems are reviewed - if all organ systems or body areas are examined. Scoring E/M services like this certainly play to the 95 and 97 guidelines, but a closer internal or self-audit involving the monitoring of claims and assessment of documentation will analyze if medical necessity and reasonableness for the higher E/M score is in fact supported. For example, a successful internal audit may reveal that 90% of E/M services are warranted based on established overarching medical necessity and required supporting documentation. The remaining 10% are found to be up-coded by one level and swift corrective action (e.g., filing corrected claims or refunding identified overpayments) and post-audit education can be provided.

But what happens when providers do not yet have an effective compliance program in place, like in the example above? In this case, practices are placing themselves at greater risk for external payor audits which may reveal findings of up-coding (without any findings of medical necessity and reasonableness). Moreover, subsequent allegations of fraud, waste, and abuse may soon follow in the forms of government investigations and audits, additional documentation requests, or commercial special investigation unit audits.

Of course, in life, more often than not, there are opposite, but equal forces at play. I dare say this applies to how E/M codes have been selected under 95 and 97 guidelines. Based on the numerous, splashy headlines of "Providers Gone Wild," "Providers Sent to Prison," "Nurses Gone Mad," and "Nurses Paying Back Tens of Thousands of Dollars," I believe the risky incidents of down-coding have come back into fashion, so to speak. Unfortunately, providers mistakenly believe they are safer this way; they incorrectly think they are staying under the radar by down-coding, or they erroneously suppose they are simply out of the payors' crosshairs by not capturing the full representation of services rendered. When these actions are deliberate and providers knowingly choose lower levels of E/M codes, the government may still consider these practices as fraudulent under the False Claims Act - if the billed claims are found to be "misrepresentations" of services rendered, or providers are found to be "making false statements." Further still, the National Correct Coding Initiative Policy Manual in Chapter 1 states, "Providers/suppliers must avoid down coding."

I am hopeful that the new 2021 E/M guidelines for the office and outpatient setting will steer providers away from bean-counting and get back to what they do best: evaluate, treat, and manage their patients with their intentions set on clear medical decision-making or time, as well as the driving factors of medical necessity and reasonableness for the services they render. I remain cautiously optimistic that soon, gone will be the days of these forms of up-coding and down-coding.

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