Critical Care Services Under the Microscope 

Critical Care Evaluation and Management Services (EMS)

Compliant Billing for Critical Care Evaluation and Management Services 

CJ Wolf, MD provides enforcement action summaries for the YouCompli blog. These summaries provide real-world examples of regulators’ response to practices that don’t fully comply with regulations. This month’s article looks at critical care services. 

Patients who are critically ill or injured usually need immediate, high-level medical care from a qualified clinician. Reimbursement for this kind of care is not always straightforward.  The medical codes are time-based and require direct patient/provider involvement with highly complex decision-making to evaluate, control, and support vital systems functions. A critical illness or injury acutely affects one or more vital organ systems in a way that results in a high probability of imminent or life-threatening decline of the patient’s condition. 

These codes are reimbursed at a higher rate than the typical evaluation and management, (E/M) codes reported for less-intensive professional medical services. Because of the higher reimbursement and the complex requirements that must be met to appropriately report these codes, critical care codes are often highly scrutinized. 

One Texas physician’s estate agreed to pay $3.28 million to settle allegations he violated the False Claims Act by submitting false claims that, in part, involved critical care services. The allegations included inappropriately billing higher reimbursed critical care codes when the actual services provided did not meet that level of care and the lower E/M codes should have been billed instead. 

OIG Work Plan to Focus on Critical Care 

The Health and Human Services Office of Inspector General (OIG) has also expressed concerns with the inappropriate reporting of these codes. In fact, it recently added an item to its Work Plan to actively audit physicians who are billing for critical care services. The OIG has already released some audit findings and expect to fully complete this work plan item in 2023. 

One of the common mistakes made when reporting critical care codes involves an inappropriate assumption that professional services provided to patients in critical care units of a hospital, for example, automatically qualify for reporting critical care codes. 

Lesson for compliance and clinical leaders:  

In other words, just because a patient is in the intensive care unit (ICU) does not mean they always meet the critical illness or injury standard required to report these codes.  

The OIG Work Plan notes that, “Critical care is usually given in a critical care area such as a coronary, respiratory, or intensive care unit, or the emergency department. Payment may be made for critical care services provided in any location if the care provided meets the definition of critical care.” The OIG also provides a clue as to what its audits might focus on. This includes the number of minutes a billing provider spends with critical care patient. It also includes the requirement that the provider must spend each of those minutes evaluating, providing care, and managing the patient’s care. The physician must also be immediately available to the patient.  

Though its work is not fully complete, the OIG has published some results from critical care services audits, related to this Work Plan item. 

Critical Care Billing Code Audit Results 

In one of these reports, the OIG describes auditing 92 critical care services reported by a multi-specialty clinic in Massachusetts. The OIG concluded the practice complied with Medicare billing requirements for 36 critical care services but did not comply for the remaining 56.  

There were two primary reasons for not meeting the Medicare billing requirements. First, many of the patients’ conditions did not indicate the medical necessity for providing the high-level of critical care services. Second, the clinical documentation did not demonstrate the physician directly provided services at the level of care required for critical care services.  

Lack of Medical Necessity 

One of the patient encounters that lacked the requisite medical necessity involved a patient who initially presented to the hospital for a heart attack or myocardial infarction. The patient underwent cardiac catheterization, bypass surgery, and coronary angioplasty and admitted to the intensive care unit. During the next 6 days the patient had a life-threatening episode and was revived. After another two-week course of stabilizing treatment, the patient was extubated, and the medical records showed the patient’s condition to be stable with improved mental status.  

The encounter where the clinic billed critical care which the OIG determined to be medically unnecessary occurred 18 days after admission. This was the day the patient was transferred out of the intensive care unit. On that day, the patient’s medical record showed that there had been no significant events. Further, the patient’s mental status was slowly improving as the patient was oriented to self and verbal, and no supplemental oxygen was being used. According to the OIG, the documentation did not support the presence of an illness or injury acutely impairing a vital organ system. It did not see a high probability of imminent or life-threatening deterioration in the patient’s condition.  

Incorrect Codes Even When Medical Necessity Present 

Not all the errors identified by the OIG were due to a lack of medical necessity or criticality of the patient’s illness or injury. There were examples where the medical necessity and critical nature conditions were met, but the codes were chosen incorrectly. The rules require that you report the total minutes as though one physician provided all the service. That is, combine the total number of minutes of critical care services for one date of service provided by all physicians of the same specialty from the same medical practice. The OIG identified one error where two physicians provided critical care services for one patient and reported their critical care time independent of one another. When reporting the time that way, the reimbursement is higher than adding the total minutes together and reporting as if one physician provided all services.  

Critical care services will continue to be scrutinized as the OIG finishes its Work Plan assignment. Additionally, the OIG typically makes recommendations to CMS to implement tighter controls and mechanisms to ensure inappropriately billed critical care is not reimbursed and any that has already been reimbursed and did not meet the requirements should be refunded. 

Lesson for compliance and clinical leaders:  

A key aspect of critical care audits includes determining whether the condition, illness or injury is of such severity that there is a high probability of sudden or life-threatening deterioration in the patient’s condition. It also includes a requirement that the clinician personally direct care to avoid this deterioration. Because of this, it is essential to include someone with clinical training to be included in any audit compliance departments perform for these services. 

Managing regulatory change is crucial to avoid enforcement actions. YouCompli is the only healthcare compliance solution that combines actionable, regulatory analysis with a simple SaaS solution to help you manage regulatory change. Read more about the rollout and accountability of requirements or schedule a demo.

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