February 4, 2015

Some Tips for Dealing with the Early Phases of an Audit

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The following are a few practical tips for responding when you get a request for medical records from Medicare or a private insurer.  

First, make sure that whoever is opening the mail keeps the envelope. It is relatively common for the date on a letter and the date of the postmark to be extremely disparate. In one case, a letter dated July 15 was postmarked in mid-September. By keeping the envelope, you can prove when the letter was actually mailed. 

As part of your mailroom process, use a date stamp. For many Medicare communications there is a presumption that you receive a letter no more than five days after it was sent. That presumption can be rebutted if you have actual evidence of the date of receipt. Automatically stamping your mail with a “received on” date provides this evidence. 

As you prepare medical records for production, make sure you keep an exact copy of everything that you send. It can be easy to think “I already have a copy of the record; it would be wasteful to make another copy.” But you want to know exactly what went out, for many different reasons.

First, there is always the very real chance that your original production will be lost. If you need to resubmit records, it is much easier to copy the first submission than to require someone to re-pull and recopy the record.

Second, you may have missed some part of the record. It is quite common for lab results, imaging material, outside medical records, or other parts of the record to be omitted. You want to know exactly what information the reviewer is examining. 

When determining what records should be sent, many organizations mistakenly believe that it is improper or even illegal to send “outside records” (that is, portions of the record that were produced at another medical facility). There is a persistent myth that there is some legal prohibition on releasing these records. I have never understood the origin of this myth, but it can be quite harmful. Your medical professionals must base their treatment decisions on the entire medical record, including any outside records.

If you fail to send the outside records, the reviewer will be working off of incomplete information. Once you are in possession of those “outside records,” they become part of your medical record. Consent to release a medical record should involve all of the information it contains, regardless of its author. When I make this assertion, people often say, “David, what law says you can release the records?” But that is actually the wrong way to frame the question. The better question is, what law forbids the release? Moreover, some common sense helps in such a scenario. If the patient fills out the history form, you would never withhold it simply because the patient (rather than one of your medical professionals) wrote it. 

Whenever possible, number the pages you produce. It makes it much easier to refer to portions of the record later and it also allows you to verify what was or was not submitted. 

Perhaps the most common issue encountered in this area is how to handle a situation in which you notice that the record is incomplete. What do you do if you find a blank in the dictation, or a missing note? My advice is to fix the mistake in a way that makes it clear that the information is being added contemporaneously. That may involve putting an addendum in the record, or putting the information in the cover letter. In an electronic record, you may fill in the blank, but then clearly include the date of the modification. You don’t want to send in an incomplete record. However, any time you change the record you are taking a significant risk, because you are gambling with the most important thing in any judicial process: your credibility. The solution is to be honest and transparent in your communications. Correct mistakes as you notice them, but leave a clear audit trail. If you make changes to the record, I often recommend including a sentence in the cover letter explaining that, while preparing the records, some mistakes were noticed and corrected.

This sort of transparency provides a strong defense if someone claims that you were attempting to cover up a mistake. 

About the Author

David M. Glaser, Esq.is a shareholder in Fredrikson & Byron’s Health Law Group. David assists clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Monday and is a member of the RACmonitor editorial board.

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dglaser@fredlaw.com 

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David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.

 

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