Podcast: The Fundamentals of the Teaching Physicians Rule

My latest Compliance Conversations episode is called “The Teaching Physicians Rule: A Blessing or a Curse.”

Back in February, CMS announced changes that seem to allow medical students a lot more freedom to document in a patient’s medical record. Which could sound like a dream to physicians who might be thinking that the students will help ease the heavy burden of bureaucracy, but auditors are a little worried. Auditors are going, “Wait, hold on, we’ve got to really look at this before we jump the gun.” I spoke with expert auditor, Charla Prillaman, who’s lived and breathed auditing for decades. The hard part, it turns out, isn’t understanding the new rule; the hard part is re-educating doctors.

Tune into our latest episode of Compliance Conversations, The Teaching Physicians Rule: A Blessing or a Curse, to learn the new specifics of student documentation for E/M Services and HPI, dangers of improper documentation, and the teaching physician’s responsibility to verify and attest to student documentation.

Episode Transcript

CJ: Welcome everybody, this is CJ Wolf, Healthicity's Senior Compliance Executive, and welcome to another episode of Compliance Conversations. Today we're talking with one of our coding and auditing experts, Charla Prillaman. Welcome Charla.

Charla: Thank you, CJ, glad to be here.

CJ: Glad to have you on again. You've visited with us once before and your expertise is much, much appreciated. We're calling Charla back on a topic that we think is really important about medical students. Before we get there, I want to give Charla a chance to remind our listeners a little bit about your background and what you do now.

Charla: I'm currently Regional Vice President for Healthicity, and I have been in this medical coding, billing, compliance industry since way back in the early 80's. Our topic today has to do with teaching position rules and for the rest of you that have been around for a long time you'll remember we had some major changes in the 90's to how Medicare was interpreting their information, so this is another new change. Part of my responsibility is to keep up with those changes and try to make sure all our customers are informed.

CJ: Thank you, and we'll jump into that. One thing I wanted to say about Charla is, in addition to her years of experience, what's really valuable is that she's dealing with different clients on a daily basis. It's one thing to say, "Yep, I've been working for this same organization for 20 years." Or something like that, and that's good and valuable, don't get me wrong, but Charla is interacting with folks from all over the country, so she gets a real perspective, she's got her finger on the pulse on what others are thinking and doing throughout the industry. I really appreciate that about Charla's expertise, and she mentioned that one of the things we wanted to talk about, a main thing we wanted to talk about today, is the teaching physician rules, and the CMS publication and announcement back in February of this year that seems to allow, and we're going to kind of talk about this, of what exactly it might mean, about medical student documentation in the medical record, and how that applies to the physicians note. Charla, before we get there, can you maybe explain what historically, what have the rules been when it comes to medical students documenting in the medical record, and what you're allowed, have been allowed, and not allowed, in the past, before this announcement, to count towards an ENM.

Charla: In the past CJ, the evaluation management services, as you know, are comprised of 3 key components, history, exam, and complex medical decision making. In the past, when medical students have been allowed to certainly write down that which they do in their learning role within the medical record, when capturing the evaluation in management service level, anything written by a medical student, except for 2 parts of the history, review of symptoms and past family social history, has been invisible to building that level. It's been a dilemma for medical students, how do they learn to document, if none of the documentation counts.

CJ: Right.

Charla: And I'm using air quotes, "Count", for their evaluation management level.

CJ: Yeah, good point. We all kind of know that historically, these rules are what really started a lot of compliance programs for a lot of organizations. The PATH audits, physicians at teaching hospitals, the fact that those rules were not being followed is what caused a lot of academic centers to settle for multi-million-dollar agreements and settlements. A lot of compliance programs started around that time, back in the 90's.

Charla: Exactly. And that's exactly where I was in the 90's, was getting involved in compliance through those PATH audits, where Medicare found that the documentation was insufficient for separate billing of those services.

CJ: Exactly. Since that time there has been a lot of regulation provided by CMS and the Medicare claims processing manual, about how residence notes can be used, and what documentation needs to be there in order for a physician to count some of that information to potentially boost, so to speak, that ENM level. Even procedures and the rules around procedures and those sorts of things, so it's a real pertinent area in a compliance and auditing perspective. We thought it'd be good to talk a little more about it, Charla, maybe you could just explain, as much as you feel is right, about what the announcement was, and what you see as some of the eye brow raising new things this announcement brought about.

Charla: Well, if you look at the actual transmittal, and I always like to go to those, because you see the changes written in red font as compared to the black font of what it used to be, and it really illuminates, at least in my mind, what those changes mean and gives me a way to think about them. If I just read them in a summarized format, without that red font, I think the changes get a little matt. What this change says, it starts out with "“Students may document services in the medical record." Wow. If that's where you stop"

CJ: Yeah.

Charla: It sounds as if studied documentation will now support evaluation management coding, but you have to go on. This is where I've had a lot of conversations with some of our clients who've said, "“What should we do?", and we're in agreement with most of our clients, we've been pretty conservative, because this goes on to say "“The teaching physician must verify all of the student documentation or findings." And all and or are in red letters, it goes on to say, after that, the last sentence is probably the most, it gives me the most reason to pause to really think about this, "The teaching physician must personally perform or reperform the physical examination medical decision-making activities of the ENM service being filled" but the other student documentation, and the last few words are paraphrased. When I read that, the student use to be able to do 2 of the 3 parts of the history, the RoS and the past family social history. Now it seems to me, the student may now also do the HPI, or the history of personal illness documentation, and they can do the exam and medical decision making, as long as the billing, or the teaching physician personally performs it, and documents. With that personal performance, maybe you could use a student somewhat like a scribe.

CJ: Yeah, interesting. You mentioned the importance of going to the transmittal, and I think we mentioned that before we started recording, this is transmittal 3971, is that correct?

Charla: Correct, and the date is Feb. 2, of 2018 with an implementation, or an effective date, backdated to January 1st.

CJ: So this is already live and going.

Charla: All of this year.

CJ: What it did was it was updating chapter 12 of the Medicare claims processing manual. Chapter 12 is the physicians and non-physician's practitioners piece. Really interesting. Tell me, what gives you pause, what reason to pause, what concerns do you have if clients, or others that you know, were to go into this full steam ahead?

Charla: It's just like in the 90's, most of those PATH audits were based on documentation, or I shouldn't say most perhaps, but a good portion, on documentation format. Where the teaching physician believed that they were attesting of their personal participation in a service, when they said, "“Seen and agree".

CJ: Right.

Charla: Medicare ruling in seen and agreed doesn't tell me you were personally present and personally participated in the care of this patient for this particular visit. I fear that if we jumped on the bandwagon, so to speak, and started counting all of the student documentation towards CNM levels, we might end up in the same boat, where the words could be interpreted that way from the beginning sentence, but as I read further, that personally performed or reperformed phrase stops me in my tracks, and how will I know if I'm reading a note, when I do conversations with physicals about documentation I always remind them, that somebody who's reading their notes for audit purposes is removed from the patient, both in time and in space.

CJ: Yeah.

Charla: And probably in training, so they only way they are going to know if that teaching physician personally performed those items, is if the teaching physician says they personally performed those items and fills in those blanks in a standard documentation format.

CJ: That's where I was going to ask the next questions. Sorry go ahead.

Charla: I was going to say if the student's documentation is all that's there, then removed in time and space, I think a reasonable person would assume did that work.

CJ: Right. Right. The point you read earlier, "the teaching physician must verify in the medical record all student documentation or findings." Let's say I'm going to play the devils advocate here, and I'm going to be the doctor here, "Wow, this is a gift from CMS. I get to use this medical student, I'm just going to be in heaven." If I'm the doctor talking to you and say, "Can't I use the same teaching physician attestation that I've used for residents?". If I've gotten good at making sure I follow all those rules, do you think that's the same kind of threshold that's going to be required to include the students documentation?

Charla: That's what I'm afraid people are going to think, but I don't think so. I think the personally performed, or reperformed statement tells us that that thresholds going to be a lot higher. Almost like the old style, where the physician had to attest to each of the 3 components of an ENM, now when you're talking about a resident, the teaching physician needs only to demonstrate his personal participation in the care. He doesn't need to say I'm evaluating this history, or attesting to the history, attesting to the exam, attesting to the medical decision making, if it's clear that he did participate, he doesn't have to redo each part. I think here, we must redo each part, and it says so.

CJ: It does say so.

Charla: Switch the words.

CJ: Yeah, in my experience, and it's been a few years, but I use to work for academic centers. Doctors are busy, they get confused on this billing stuff, and they struggled with treating the NPP's, or the non-physician practitioners, differently from a documentation standpoint, and we know that the CMS regs have some specific differences for what a physician must do if it's a resident versus if it's a nurse practitioner or a PA. I kind of agree with you, a lot of physicians are going to lump all of these people in one bucket, even though the regs don't allow for that, but in their mind and in their practice, sometimes they do that, and they are, like you said, they are probably going to treat it the same way, and rather than in their minds have different attestations that are appropriate, they are going to say the same kind of attestation and they are going to get it wrong when it comes to a student because it says the need to personally reperform it.

Charla: That's my fear.

CJ: I have a friend of mine, from one of those institutions, those academic institutions, and he told me they are not going to be proceeding with this in a big way. Now they did say, if they are auditing. It's one thing to proactively take this and run with it, it's another if you're doing audits and it comes to paying back dollars, and you have student documentation, and it actually, the physician did it the right way, not so quote, unquote, ding the physician, because technically it meets the reg. What are your thoughts on that, because you also do audits. From an auditing perspective, so let's say an organization decided, you know, we're not going to proactively prompt physicians to do this, but when you're doing an audit, and one physician has done it, are you going to make them, are you going to recommend them pay it back if it does meet the regulation requirement?

Charla: Not if it meets the regulation requirements, of course not. I think I would say, you know, on audits I would be looking very carefully for evidence that the physician reperformed the work.

CJ: Yep.

Charla: If that evidence is apparent in the records, then I would absolutely allow, unless of course they change chapter 12 again.

CJ: Exactly.

Charla: I might, to date, I have not see any records like that but some of my academic customers have said "what do you think is the best practice, we want to be conservative and have our student documentation completely separate from our physician documentation.", and that's the position that everybody I've spoken to is taking. I think that's safe and conservative, but if the criteria were met, I would certainly allow it on audits.

CJ: And that was going to be my next question, you kind of answered it, but if you have any further comments of what you are hearing out there, because you do have exposure to so many different clients throughout the country, it sounds, what I'm hearing you say, is that most are very cautious about this at this point.

Charla: That's what I've heard. Full disclosure, most of my conversations have been with compliance people, who are charged with evaluating weather or not a change is something that is useful or helpful. To date, everybody that I've talked to, has said conservative is the best approach.

CJ: Yeah, and I have not talked to as nearly as many as you have, but that's what I've heard from the few people that I've talked to. Just so we can be clear. This change, because sometimes people hear this in the headlines, and then they extrapolate to all sorts of areas, so I just kind of want to level set a little bit here. Just to be clear, this is only in the ENM portion, we know that there are, and correct me if I'm wrong, we know that there are teaching physician guidelines if a minor procedure or a major procedure is being done. Is it accurate for me to say that this is only a change in the ENM portion, so people should not extrapolate these changes into procedures?

Charla: Absolutely. Like I said, I knew we were going to talk about this, so I wanted to make sure I could see the transmittal, the second level title is "EM Service documentation provided by students", it's pretty clear that we are in the evaluation management services conversation and it should not be taken to apply to any other service.

CJ: Yeah, you know, because, sometimes, not that many are this way, but I've worked with my share of doc's that if you give them an inch they take a mile. They say that "Oh yeah, I heard that I can use medical students now." So, they think that means for everything. I just wanted to make that clear for our listeners.

Charla: I think that's an important clarification, and I might add to that, when we talk about residents in this world, residents are licensed physicians. Students are not.

CJ: That's right.

Charla: They do not have allowing them to provide medical services, they really shouldn't be treated the same, in my opinion.

CJ: Right, I agree. Let me also ask, I'm looking at the transmittal and you and I reviewed it as well, has there been anything else other than the transmittal announcement that has come from CMS, like maybe audio recording or webinar or training or anything? It just seems like here's the words in red lettering, and good luck, we're not giving you any guidance on what it means, or has there been addition.

Charla: I think there's a med learn matters synopsis of the change, but I'm not aware of any webinar, or other kind of training.

CJ: Okay. The other thing I wanted to ask you, we all, most of us know that Medicare is a national program, it's administered by mac's in regions, Medicare regional contractors, have you heard or seen any mac's commenting on this new thing? Sometimes they will put it in a newsletter, or they will put an FAQ out, have you seen anything like that from a regional or local level?

Charla: I have not seen anything to date, and that is something that our department does in audit services, we do monitor those publications as they come out, and to date nobody as seen any.

CJ: Yeah, okay. The other thing I wanted to touch on, a lot of people in a billing compliance program, or auditing program, or even just an education program, organizations will say "we're going to follow the Medicare rules for all payors, because they are typically the most strict." What do you guys do when it's not a Medicare patient, and either a student or resident is used, let's say it's a commercial payor, or let's say it's Medicaid? How do you deal with that from an auditing perspective, or maybe proactively from educating physicians and coders?

Charla: That's one of those difficult questions. Some of our clients are adamant that they want teaching physician rules applied across the board. It's my personal opinion, since the teaching physician rules are designed to not double pay, because there is funding coming from the general education fund, Medicare isn't going to pay twice for the same service, is kind of the foundation of that rule. If there is no GME money involved for, let's say, any commercial payor, I say that if you have supervision that meets licensure safety rules, that one should not apply the teaching physician rule to other kinds of services. Medicaid is kind of a funny mix because part of Medicaid money is federal money, and part of Medicaid money is state money, and there are, at least 2 states I think, who have in their Medicaid manual, absolute instruction to apply the same standards. If that's part of the billing instruction manual, I would certainly suggest following that, and I would audit according to that information.

CJ: That's a great point. I appreciate you saying that, I think it demonstrates your expertise that you need to know that, right? That people need to know that some Medicaid manuals, or instructions, allow for it, but it's going to vary by state, so getting somebody who knows what they are talking about and works with clients throughout the country, it's important. Of course, you could also research it, and you find out what your state requires or doesn't require. From a commercial payor standpoint, we frequently, tell me what you think about this, we always have said you have to typically look at the contract with those commercial payors, now obviously most of those contracts don't address it, but that's really, you must really think of these things, when it comes to commercial payors, form a contractual standpoint. Would you agree, or disagree, or do you have other insights?

Charla: I think that's a very wise piece of advice to give to people in most billing areas, but I would add again, that for this, for teaching physician rules, I think that the presence or absence of GME monies is very significant if a contract is silent to understand that to mean it doesn't apply to us at all.

CJ: Yeah, I think that's spot on, because you're right, this is only an issue because Medicare has made lump sum GME payments to teaching programs and then what we're talking about when it comes to teaching physician rules, is what's required to allow them to bill in addition to that reimbursement, or excuse me, that payment that's being made, for them to bill professionally for their own personal service, what threshold has to be met. I think that's a good context to set all this in. We're kind of coming to the end here Charla, I wanted to give you the last minute or so, if there is anything that I left out that you think people should be aware of or should be thinking about when it comes to this new announcement.

Charla: CJ I think we covered the basics, and some of the questions that still arise, I think we'll all be wise to monitor CMS and the local MAC carriers for additional clarification.

CJ: Yeah, I think you're spot on, and what I've observed in the 20 years I've been doing compliance, announcements come out it usually takes a little while for people to get their feet wet, and then you start to get enforcement maybe a year or two years later, and sometimes it takes time, you don't want to be that first case, so I think that advice about being conservative is wise. What happens is a year or two years down the road a lawsuit comes out, or something, and then that case law defines the parameters a little bit more.

Charla: I agree.

CJ: Our advice in general, is to be careful. Charla, thank you so much for your expertise and your time, we really appreciate it. We will sign off here, another episode of Compliance Conversations, we hope you tune into our next episode. Thanks everyone.