Deeper Than the Headlines: Why the OIG is Watching Chiropractic Services

The OIG has frequently reviewed chiropractic services over the last several years. Their most recent report was posted on their website on Aug. 18, 2017 and concluded that a Brooklyn chiropractor had a 100% error rate for claims over a two-year period worth about $672,000. Of course, the provider can follow the CMS appeals process regarding these claims but the report sends the message that the OIG is watching.

Medicare Part B paid approximately $1.4 billion for chiropractic services in 2011 and 2012 nationwide. A previous OIG review found that, in 2006, Medicare inappropriately paid an estimated $178 million (of the $466 million reviewed) for chiropractic services.  At that time, they determined the services were medically unnecessary, incorrectly coded, or undocumented. For this review, OIG analyzed Medicare claim data for 2011 and 2012 and selected for review a chiropractic practice, located in Brooklyn, New York (Brooklyn Chiropractor), which was the third highest-paid provider of Medicare chiropractic services in New York State. They then took a random 100-claim sample from the provider’s 18,187 total claims for 2011 and 2012.

Based on the review of the 100-claim sample, OIG concluded that none of the claims complied with Medicare requirements. Specifically, the medical records didn’t support the medical necessity for any of the sampled chiropractic services. It’s also interesting to read the OIG’s determination as to why these unacceptable payments occurred. They concluded it was because the Brooklyn chiropractor didn’t have adequate policies and procedures in place to ensure that chiropractic services billed to Medicare were medically necessary. They stated the Brooklyn chiropractor did not have any written policies or procedures. The chiropractor indicated the practice used the Medicare guidelines to obtain information on how to document and bill chiropractic services.

As we know, maintaining written policies and procedures is one of the seven elements of an effective compliance program.  If the OIG’s finding of the practice having absolutely no policies or procedures related to these claims is true, it would be hard for this practice (or any practice for that matter) to contend that they had an effective compliance program in place.

According to the report, “Medicare requires that chiropractic services be reasonable and necessary for the treatment of a beneficiary’s illness or injury, and Medicare limits coverage of chiropractic services to manual manipulation (i.e., by using the hands) of the spine to correct a subluxation (when spinal bones are misaligned). Chiropractors may also use manual devices to manipulate the spine. To substantiate a claim for manipulation of the spine, the chiropractor must specify the precise level of subluxation. Depending on the number of spinal regions treated, chiropractors may bill Medicare for chiropractic manipulative treatment using one of three Current Procedural Terminology (CPT)4 codes: 98940 (for treatment of one to two regions), 98941 (for treatment of three to four regions), and 98942 (for treatment of five regions).  The CPT code for extraspinal chiropractic manipulative treatment (98943) is not covered by Medicare.”

Furthermore, “Medicare requires chiropractors to place the AT (Acute Treatment) modifier on a claim when providing active/corrective treatment for subluxation. Because Medicare considers claims without the AT modifier to be claims for services that are maintenance therapy, it will deny these claims. However, inclusion of the AT modifier does not always indicate that the service provided was reasonable and necessary. To receive payment from Medicare, a chiropractor must have documentation to support the services provided during the initial and subsequent visits as required by the Social Security Act (the Act), the Manual and the applicable MAC’s LCD for chiropractic services.”

Some of the specific reasons for unallowable claims as identified by the OIG were:

• Manual manipulation of the spinal subluxation would not be expected to result in improvement within a reasonable and generally predictable period of time (96 claims)
• Manual manipulation of the spinal subluxation was maintenance therapy or was not appropriate for treatment of the patient’s condition (95 claims)
• Subluxation of the spine was not present or was not treated with manual manipulation (15 claims)

It is also very interesting to see how the OIG interprets the 60-day rule regarding what constitutes “credible information” which triggers an obligation for a provider to further expand an investigation for potential overpayments over a 6-year lookback period.  In the report the OIG stated, “Under section 1128J(d) of the Social Security Act and 42 CFR part 401 subpart D (the 60-day rule), upon receiving credible information of a potential overpayment, providers must: (1) exercise reasonable diligence to investigate the potential overpayment, (2) quantify the overpayment amount over a 6-year lookback period, and (3) report and return any overpayments within 60 days of identifying those overpayments (42 CFR § 401.305(a)(2), (f) and 81 Fed. Reg. 7654, 7663) (Feb. 12, 2016)). OIG believes that this audit report constitutes credible information of potential overpayments”

This interpretation would most likely apply to any OIG finding, not just the chiropractic services outlined in this report.  It will be interesting to watch for similar language in future OIG reports.
If your practice or organization is involved in chiropractic services it might be wise to review this most recent OIG report as well as other reports the OIG has published in the last few years: