Jason Christ Featured in "Risk Adjustment: 6 Legal and Compliance Issues to Watch in 2020"

Retrospective chart reviews: Christ expects this 2019 hot topic to heat up even more this year. The OIG recently released guidance expressing significant concern regarding codes derived from retrospective chart review. This suggests both OIG and CMS will take a closer look at how organizations conduct these medical record reviews after treatment is provided and whether the codes are linked to actual encounters, he says.

Retrospective review is also a “significant enforcement target” for the DOJ and the qui tam bar and has manifest in several cases, including the United State ex rel. Poehling v. UnitedHealth Group. Inc., and United States ex rel. Swoben v. Secure Horizons, et al., which have challenged the completeness of retrospective review, the accuracy of retrospective view, and the notion of two-way coding. Indeed, both cases alleged that the insurers conducted one-sided retrospective reviews of medical records, focusing on underpayments while ignoring codes that might not be supported.

In-home assessments: Christ notes that several investigations litigation may begin to address key legal concepts relevant to in-home assessments. Early cases focused on whether assessments were completed with allegations that the provider did not show up or conducted an unrealistic high number during the day. Later cases challenged the reasonableness of the diagnoses in the home setting and whether the provider had the appropriate equipment and training to make the diagnosis and whether additional tests are needed.

“It gets us to an interesting area where enforcement agencies and the qui tam bar, through cases and enforcement are testing an area in which CMS has provided little guidance, i.e., what is a reasonable setting and how much does a clinician need to do to diagnose a given condition? CMS has produced some RADV guidance but ultimately refers back to ICD standards, which themselves are often ill defined for risk adjustment purposes. I think that will be a fascinating area for the legal community and risk adjustment community to figure out,” he says.