Health care regulations - the E&M guidelines

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The E & M Guidelines - The Next Frontier?

Now that the Feds have successfully executed their shakedown operation (i.e., the PATH audit), they are ready to branch out into bigger and better things. What is most likely coming, at some point in the relatively near future, is the aggressive enforcement of new federal “evaluation and management” (E&M) coding rules. The new rules, currently scheduled for implementation some time in 2000, will make every practicing physician eligible for the feds’ special kind of scrutiny.

The E&M rules apply to the documentation that is required to support the billing submitted to Medicare for patient services. There are five levels of billing codes, and HCFA has put forth the E&M rules to “help” physicians select the proper billing code for the services they provide. Essentially, every progress note written in the patient’s medical record now must comply with E&M standards, and must support the level of billing. If the billing code used is not supported by a note that is fully compliant with E&M standards, the physician may be charged with health care fraud.

Of course, the new E&M rules are extremely complex (they cover 48 pages), difficult to follow, vague, and self-contradictory. I and many physicians who have tried to use them find them very time-consuming, confusing, and difficult to correlate with the five levels of billing.

Writing a progress note in a patient's chart used to be an art. These notes should be brief but thorough, so that a physician caring for the patient at a later time would be able to skim through the medical records and immediately focus on key events. The notes should thus not be cluttered with extraneous or irrelevant data.

The new E&M rules require these notes to be packed with irrelevant information related to the history, physical exam, assessment and plan. For instance, the physical exam portion of the note must be written in accordance with one of four levels of complexity (problem focused, expanded problem focused, detailed or comprehensive). Documentation of each of the four levels of complexity must comply with requirements that read like a Chinese menu. For example, for a “detailed” physical examination, the note must document “at least two bulleted elements from each of six areas/systems OR at least twelve bulleted elements in two or more areas/systems.” The “areas/systems” are a list of body systems such as “cardiovascular” or “respiratory,” and the “bulleted elements” are lists of pieces of the physical examination that must be written down, such as “femoral arteries (e.g. pulse amplitude, bruits).”

For each patient encounter, one must assemble a progress note based on several pages of such instructions. Aside from being insulting, these documentation requirements are not at all straightforward, since they do not correlate with what is clinically relevant.

Further, they are time-consuming. It takes at least five to ten minutes per patient nowadays to write a note that is (as nearly as I can tell) in compliance with the law. If we see 20 patients a day (a conservative number for most doctors), that’s perhaps 150 extra minutes a day. Since the number of patients we see each day doesn’t change, a good bit of that extra time must come out of the time that we might otherwise be spend actually talking to patients.

In addition, correlating your carefully constructed note to the proper billing code is, at best, a challenge. A proper correlation depends on the “level” of the history taken, the “level” of the physical exam, and the “level” of complexity of the medical problem – and all those “levels” depend on which elements you’ve selected from which Chinese menu. To say the least, this all tends to be somewhat confusing – which is too bad, because an error can land you in jail.

What you are finally left with is a progress note that is filled with all sorts of extraneous, federally-required information that makes it inherently difficult to read. Another doctor trying to sort out what you really think about the patient, from amidst the morass of three bulleted elements from Menu A and twelve bulleted elements from Menu B, will have trouble doing so. But a bureaucrat auditing billing patterns will have everything laid out for him just as he wants it – and that’s what’s important, I guess.

One doesn’t have to be Nostradamus to figure out what’s going to happen next. By promulgating this complex new “physician aid,” the feds will lay extremely fertile ground for the creation, discovery, and prosecution of health care fraud and abuse. The OIG has already decided to begin performing random audits (although how many they will perform is a closely guarded secret) on compliance with the E&M rules. These audits (which do not require any evidence of impropriety) can impose large financial burdens on the audited physician, whether or not violations are found, since it costs a lot of money to prove your innocence.

At this point, of course, nobody can say for sure that the feds will abuse their authority in enforcing these burdensome, confusing, and insulting regulations. All one can do is look at what the feds have done before. And what they have done before is the Regulatory Speed Trap.

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