OIG Announces Alarming Results for Providers Billing Advance Care Planning

In November 2022, the Office of the Inspector General (OIG) released alarming results from their audit of Advance Care Planning (ACP) codes 99497 and 99498.  The OIG titled their report, “Medicare Providers Did Not Always Comply With Federal Requirements When Billing For Advance Care Planning.”  This might be a warning shot for future audits since the OIG identified documentation and coding errors in 466 of 691 of the charges.  That’s a staggering 67% error rate! The OIG believes that when extrapolated over the entire year under review (2018), this may represent Medicare overpaying $42.3 million for services that did not comply with Federal requirements.

Advance Care Planning (ACP) is a voluntaryface-to-face service between a physician (or other qualified health care professional) and a patient and/or family member, and/or surrogate to discuss the patient’s health care wishes if they become unable to make decisions about their care.  According to the American Medical Directors Association (AMDA), “ACP aims to articulate and document the preferences of the individual regarding the desired goals of care and the corresponding extent of medical treatment (levels of care) to be provided in future medical conditions.  Furthermore, ACP aims to communicate these preferences with the intent that they be honored when the individual is no longer able to speak for themselves.”  services.” 

If the patient is unable to participate in ACP, providers should explain the reason within their notes. ACP can take place in any setting and is not limited to any particular specialty, making this article relevant to a broad audience.

What triggered the OIG audit? 

In January 2018, the Comprehensive Error Rate Testing (CERT) program identified a concerning number of  improper payments for ACP services.  This started the ball rolling as the OIG acted on CERT’s findings.  For the 466 unsupported claims, payments have been (or should have been) recouped by Medicare. 

Where there’s smoke there’s fire

The OIG feels there is credible evidence that that are more overpayments that extend well beyond the reach of their audit.  In their report, they remind providers that they have an obligation to investigate the possibility of other errors within their practice. Providers “must exercise reasonable diligence to identify overpayments (i.e., determine receipt of and quantify any overpayments) during a 6-year lookback period. Providers must report and return any identified overpayments by the later of (1) 60 days after identifying those overpayments or (2) the date that any corresponding cost report is due (if applicable). This is known as the 60-day rule.”

What was the root cause of unsupported charges?  

The short answer is time. In 268 instances, time was not documented even though ACP is a time-based service, or the minutes that were devoted to ACP were not clearly distinguishable from other services on the same day.  The OIG refers to this as “other services taking place concurrently.” The runner up, with 174 cases, was no indication within the note(s) that an ACP discussion took place.  Lastly, medical records were not submitted as requested for 24 charges. 

How did providers respond to their audit results? 

According to the OIG’s report, “Some providers told us that they did not comply with Federal requirements because they did not know that the time for ACP services had to be distinguished between time spent discussing ACP and time spent on concurrent services or because they were unaware there was a time requirement. Additionally, some providers stated that ACP services should not have been billed.”

Strategies for ensuring correct coding and reinforcing your documentation:

CPT© code descriptors introduce the reader to ACP, but they do not clearly spell out the threshold for billing, nor do they mention Medicare’s documentation expectations:

  • 99497: Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health care professional; first 30 minutes, face-to-face with the patient, family member(s), and/or surrogate
  • 99498; each additional 30 minutes (List separately in addition to code 99497)

For the billing threshold, follow CPT’s guidelines regarding time-based codes.  Once the “midpoint” for a code has been exceeded, the service is then billable unless otherwise stated in the code’s description.  For 99497 (a 30-minute code), a minimum of 16 minutes must be met, and 46 minutes are needed for 99498. To alleviate any concerns you may have, Medicare concurs with this philosophy.   Report code 99498 in addition to 99497 once 46 minutes have been achieved.

Time must be documented.  Documentation for ACP should follow a two-pronged approach:

  1. Document the minutes that were dedicated to ACP.  If missing, this is a hard-stop for billing.  Be precise whenever documenting any time-based service, meaning, do not simply default to a CPT’s threshold each time.  You’ll lose credibility quickly under audit if the same amount of time is used for every patient, and payers are known for reviewing a series of claims to identify such issues. 
  2. Clearly establish that minutes spent in ACP were distinct from other services.    

Consider creating a template that prompts for time and reminds the provider that it has to be distinct, “I personally dedicated 20 minutes of face-to-face time with the patient/family/surrogate, to Advance Care Planning as detailed aboveThis is separate and in addition to any other services rendered on this day.”  This templated entry should be supported by patient-specific details pertaining to the ACP discussion.

According to CMS, “Voluntary ACP can be offered upon agreement with the patient, family member or surrogate. That agreement must be documented in the medical record.”  WPS Medicare further explains that the consent must be specific to the service being rendered.  A consent to treat (signed) at the time of admission (new patient paperwork) or a blanket financial form will not suffice.  The OIG report also speaks to the topic of consent and notification when performed outside of an annual wellness visit, “…a provider should notify the beneficiary that Part B coinsurance will apply, as it does for other providers’ services.” 

These additional steps must be taken with the patient or their representative, and Ventra Health suggests adding language that clearly conveys it.  For example, “The patient/family/surrogate was made aware of the voluntary nature of ACP and that the patient could be liable for cost-sharing as with other Part B services.”

Document the content of the discussions.  According to CMS’ billing article for ACP (that also aligns with the OIG report), “At a minimum, and as noted above, appropriate documentation must include the content and the medical necessity of the ACP related discussion, the voluntary nature of the encounter, the content of any advance directives (along with completion of advance directive forms, when performed), the names of participants in the discussion; and the time spent in the face-to-face encounter. Best practice for the time documentation is to include the start and end time of the face-to-face conversation.”

How often can ACP be performed for an individual patient? 

There are no limitations or restrictions, however, as with any other service, each charge must be medically necessary.  The OIG challenged the necessity for multiple codes during their audit.  They identified 12 patients, each with 15 or more ACP services in a single year, and with no surprise, they found most of them “questionable”.  These charges lacked detailed, encounter-specific documentation. The OIG explained, “CMS would expect a documented change in the beneficiary’s health status, end-of-life care wishes, or both. The providers’ medical records that we received did not mention a change in the beneficiaries’ health status or wishes for end-of-life care.”

What steps should be taken to reduce challenges under audit for ACP as well as other services?

No one can guarantee 100% success, but you will significantly increase your chances of coming out ahead if you’re proactive with your compliance initiatives by investing in a coding and documentation review.  Identify potential problems before they become living-breathing risks to your organization. Ventra Health has a team of experts (including clinicians) that have years of experience evaluating documentation and coding in multiple specialties, assessing CMS’ coverage criteria (such as interventional pain procedures), and providing education.  You’ll find our reports detailed, educational and actionable. 

When you’re behind the 8 ball:

If you find yourself facing large-scale denials and need an advocate during the appeals process, let our team help you.  We’ll develop honest and advantageous rebuttals on your behalf.  We have a tactical approach that produces a thorough response covering all the bases.  We also support practices under a Medicare Targeted, Probe and Educate (TPE) review by mentoring them through the process and providing accelerated education to quickly get them in synch with documentation demands.  

Contact us for more information on how we can assist you with evaluating your practice with these topics and many more.

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Linda Duckworth has over 30 years’ experience in health care ranging from practice management and revenue cycle analysis to audit and compliance.  In recent years her focus has been on large-scale appeals and aiding physicians and groups who have found themselves at odds with government payors.  She has assisted clients with meeting their corporate integrity agreement obligations, work through their diversion agreements, helped those who have been accused of wasteful billing practices, and she’s been involved with defense teams in health care fraud investigations and false claims accusations.   She has been a featured speaker for physician specialty societies as well as a conference presenter for compliance and coding associations.  She is a former National Advisory Board member for the AAPC, and she has written articles for billing, coding, and compliance publications.  Linda oversees the technical review of work products for Ventra Health’s consulting team and continues to perform audits that are educational and actionable.