Ace potential Medicare audits of advance care planning in 2023 with these tips

Family physician Karen Smith, M.D., says end-of-life conversations are among the most important ones she has with patients. They’re also among the most emotionally charged. Whom would you want to make medical decisions on your behalf if you can’t? What would you want that person to do? What else would you want your loved ones to know? Collectively, this back-and-forth dialogue about advance directives is what’s known as advance care planning (ACP), a Medicare-billable service that pays approximately $85 for the first 30 minutes and $74 for every 30 minutes thereafter.

Medicare audit: ©BillionPhotos.com - stock.adobe.com

Smith provides ACP at every annual wellness visit (AWV) and during visits for transitional care management because she wants to help patients advocate for themselves. “I want to do it while the patient is cognizant and able to engage, connect and make their own decisions,” she says.

Smith’s medical assistant helps cue up the conversations by gathering information before Smith enters the examination room. For example, the medical assistant might ask the patient whether they have a living will or would like to learn more about it. If the patient expresses interest, Smith says she engages them in a more in-depth discussion. She also directs patients to the Five Wishes website, where they can purchase an advance directive for $5. Once properly completed, signed and witnessed, the document is legally valid in 46 states.

ACP in the spotlight

Medicare began paying separately for ACP in 2016 (previously, payment was included as part of the AWV). More recently, the Office of Inspector General (OIG) audited nearly 700 billed ACP services to determine whether physicians are billing the service correctly. A November 2022 report detailed the OIG’s findings: They’re not. In particular, the OIG audit found that Medicare paid office-based providers approximately $42.3 million for ACP services that did not comply with federal requirements.

In light of the OIG’s recent report, experts say physicians can likely anticipate the following:

Notification from Medicare administrative contractors (MACs) regarding any potential overpayments based on the OIG’s audits (physicians will have 60 days to return those overpayments)

Ongoing education from the Centers
for Medicare & Medicaid Services (CMS)
regarding appropriate documentation for
ACP services

More Medicare contractor audits
of ACP in 2023

“When there’s an OIG audit like this, that probably means something stood out in terms of unusual billing data. Providers should keep in mind that this is not the end of the story,” Richelle Marting, J.D., MHSA, RHIA, CPC, CEMC, CPMA, health care reimbursement and regulatory compliance attorney, says. “We’re probably going to see more MACs and contractors pick up on these findings and check out records themselves. Based on my experience, that usually happens within 12 months of the OIG’s findings.”

Tips to ensure compliant billing

Following are seven tips to avoid ACP-related denials and pass any payer audits with ease:

1. Document a face-to-face encounter. ACP is a service that requires a face-to-face discussion between providers and patients to discuss the patient’s health care wishes if they become unable to make decisions about their care. The key is “face-to-face.” Note that face-to-face interaction can be achieved through telehealth. In addition, face-to-face requirements can be waived if ACP is delivered as an audio-only telehealth service but only during the public health emergency period. Telehealth waivers were extended through Dec. 31, 2024.

Cindy Nicholas, vice president of coding solutions at AQuity, suggests the following documentation: “Meeting in person with Mrs. Jones to discuss ACP” or “Mrs. Jones is in my office to talk about ACP.”

2. Describe the services. Simply asking the patient whether they have a health care power of attorney, for example, isn’t enough to bill ACP, according to Nicholas. “It’s about scenarios and a back-and-forth dialogue to make sure the patient conveys their wishes clearly,” she says.

3. Notify patients that deductible and Part B coinsurance may apply. The only exception is when a provider performs ACP as part of the AWV. In this case, the beneficiary does not incur any cost related to the ACP service. “The failure to collect patient responsibility is not only a regulatory obligation and a condition of reimbursement, but it could potentially be an issue of fraud or abuse if it’s done systemically,” Christopher Parrella, Esq., CPC, CHC, CPCO, health care attorney at Parrella Health Law in Boston, Massachusetts, says.

To bill ACP on the same day as a covered AWV, report Healthcare Common Procedure Coding System AWV codes G0438 and/or G0439 as well as ACP code 99497 or 99498 with modifier 33. To bill ACP on a different date, report 99497 and/or 99498 along with other services.

4. Document time spent. The biggest error the OIG identified in its audit was that providers did not document the time they spent providing the ACP services. Most often, providers did not differentiate between time spent face to face with the beneficiary discussing ACP and time spent on concurrent services.

“You need to show that separate payment is warranted,” Marting says. She provides this example of compliant time documentation: “I spent 35 minutes with the patient, 16 of which were dedicated to ACP.”

Note that ACP is a time-based service. Physicians can only bill it when they meet the midpoint of the time requirement associated with each code. For example, they can report 99497 or G0438 only when they provide at least 16 minutes of face-to-face ACP services. Once the ACP services alone reach 46 minutes, they can report 99498.

However, Marting provides this tip: Even if a provider doesn’t meet the time threshold for ACP, they might be able to report a higher-level evaluation and management (E/M) code based on time. For example, a physician provides a level three E/M service and 10 minutes of ACP. That 10-minute period doesn’t meet the 16-minute threshold to report 99497; however, it may support a level four office visit when combined with time spent on other evaluation and management services.

5. Document medical necessity. CMS does not limit the number of times a beneficiary may receive ACP services; however, that doesn’t absolve physicians of the requirement to provide it only when medically necessary. Parrella says auditors will be looking for a documented change in the beneficiary health status, end-of-life wishes or both, he adds.

6. Know where you stand. Parrella advises physicians to contact their MAC and ask for a comparative billing report for G0438, G0439, 99497 and 99498. Then ask this question: Am I overbilling or underbilling compared with other primary care physicians?

However, Parrella warns that even if a physician’s billing is in line with their peers, they could still find themselves facing an audit. For example, a payer might design an audit around all providers billing ACP over a certain dollar amount. “The safest approach is to make sure your documentation and coding (are) in compliance,” he says.

7. Be proactive. Many payers request additional documentation before reimbursing for ACP. However, Nicholas says medical practices may be able to speed up payments by automatically attaching relevant documentation to any ACP claims the medical practice submits.