Your Questions to Mental Health Compliance, Answered

Last week I hosted the webinar, “Understanding the Recent Enforcement of Mental Health Services,” where I discussed how mental and behavioral health services were being scrutinized and investigated by both the OIG and the DOJ. Much of this new focus was the result of the pandemic, which unsurprisingly shifted the providing of these services to telehealth visits.  After my presentation, we had a lively discussion on mental health billing, telehealth, provider documentation, and more. Unfortunately, we ran out of time, and so I wasn’t able to answer all of the questions that came in. So, I promised to answer the rest of your questions with a blog post. This is that post.

If you have any more questions, feel free to drop them in the comment section at the bottom of this post.

Question 1:

"I have a psychiatrist who bills a 99215 for consecutive visits (along with therapy, and the time is documented correctly), but his reasoning is that all his patients are "At high risk for admission, or have had several suicide attempts". Payers are denying these visits. Have there been any enforcements that relate to this?”

Answer 1:

There are multiple settlements for upcoding evaluation and management codes such as 99215.  I am not aware of a recent, specific settlement in the mental health context.  But, in general, the following excerpt from the Medicare Claims Processing Manual is good advice to follow: “Medical necessity of a service is the overarching criterion for payment in addition to the individual requirements of a CPT code. It would not be medically necessary or appropriate to bill a higher level of evaluation and management service when a lower level of service is warranted. The volume of documentation should not be the primary influence upon which a specific level of service is billed. Documentation should support the level of service reported.”

The bottom line is that the documentation needs to support the level of service reported, and the level reported also needs to be medically necessary.

Question 2:

Our providers sometimes take weeks to complete documentation for E/M services. Although we don't bill the services until the documentation is complete, is there anything that says documentation must be completed within a certain timeframe?

Answer 2:

I have not found a general documentation regulation that specifically outlines a time. However, the Medicare Claims Processing Manual states: “The service should be documented during, or as soon as practicable after it is provided in order to maintain an accurate medical record.”  I would recommend an internal policy that states something like “same day” documentation, or within 24 hours.

Also note the example of an OIG audit shared during the webinar where OIG did not accept documentation completed in the medical record after the OIG requested documentation for an audit.

Question 3:

Is it your recommendation that a start/stop time be documented, rather than a total minutes note?

Answer 3:

I think both options can work. What I do recommend is that the documentation of time clearly shows how much total time was spent in psychotherapy, keeping in mind that if other services were reported, that a total encounter time with the patient does not necessarily equal the total time spent on psychotherapy.

Question 4:

If services are being provided by more than one Nurse Practitioner or Clinical Social Worker (as allowed by state regulations), can the Psychiatrist supervise services that overlap?

Answer 4:

I believe your question is in the context of the “incident to” rules we discussed. In that context, as long as the requirements of “incident-to” are met, then yes, the psychiatrist could potentially supervise more than one clinician.

Question 5:

What are CMS telemedicine documentation requirements?

Answer 5:

The following HHS website is a good place to start for the regulations: https://telehealth.hhs.gov/

However, a word of caution: exceptions to requirements during the public health emergency may or may not be permanent. You need to first define if you are performing telehealth services in the context of the public health emergency, or outside of the public health emergency.

Question 6:

Isn't there a level of detail in the psychotherapy that needs to strike that 'right balance' of patient privacy and therapy delivered/progress?

Answer 6:

Yes, there does need to be a correct balance, especially in the context of patient privacy and HIPAA. Also remember the special distinction that the HIPAA Privacy Rule makes about psychotherapy notes. Per HHS OCR, “The Privacy Rule distinguishes between mental health information in a mental health professional’s private notes and that contained in the medical record. It does not provide a right of access to psychotherapy notes, which the Privacy Rule defines as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record. See 45 CFR 164.501. Psychotherapy notes are primarily for personal use by the treating professional and generally are not disclosed for other purposes. Thus, the Privacy Rule includes an exception to an individual’s (or personal representative’s) right of access for psychotherapy notes. See 45 CFR 164.524(a)(1)(i).”

Question 7:

Can you touch on "filling beds" in rehab facilities in return for billing service contracts with a percentage (kickback)?

Answer 7:

Unless an anti-kickback statute (AKS) safe harbor applies, any provider needs to be especially careful and hesitant to offer anything of value in exchange for past, present, or future referrals or medical services. You can read more on the AKS here and more about the safe harbors here.

Question 8:

Were the incidents shared during the webinar, where the fraud involved more than 24 hours of work per day, discovered through analytics OIG used, or through whistleblowers/patient complaints?

Answer 8:

Most of them were through proactive data analytics efforts performed by the OIG, or by a government contractor.

Question 9:

I think providers often misinterpret the interactive therapy code. How would you describe the circumstances in which the use of this code is appropriate?

Answer 9:

The APA does a nice job with initial requirements for using the interactive add-on CPT code 90785.

The APA states: “Add-on code 90785 for Interactive complexity refers to factors that complicate the delivery of a mental health procedure. At least one of the complicating factors identified in the CPT manual must pertain in order for providers to bill the interactive complexity code as an add-on to the principal psychiatric procedure.

Complicating factors include, for example, difficult communication with acrimonious family members and engagement of verbally undeveloped children. These factors are typically found with patients who:

• • Have others legally responsible for their care, such as minors or adults with guardians
  • Request others such as family members or interpreters to be involved during the visit, or
  • Require the involvement of third parties such as schools or probation officers
  • Code 90785 may be reported with codes for diagnostic evaluation (90791), psychotherapy (90832, 90834, 90837) and group psychotherapy (90853)