OIG Targets ED Physicians for Fraudulent E&M Coding Using Incomplete Claims Data


A recent article in the NY Times pointed to the belief that “the move to electronic health records may be contributing to billions of dollars in higher costs for Medicare, private insurers and patients by making it easier for hospitals and physicians to bill more for their services, whether or not they provide additional care”.

OIG targets ED physicians for fraudulent E&M coding using incomplete claims data
{This article was originally published on FickleFinger.net} 


A recent article in the NY Times pointed to the belief that “the move to electronic health records may be contributing to billions of dollars in higher costs for Medicare, private insurers and patients by making it easier for hospitals and physicians to bill more for their services, whether or not they provide additional care”.  This and a related article pointed to a recent report, by the DHHS and the Office of the Inspector General which suggested that “the most aggressive billing — by just 1,700 of the more than 440,000 doctors in the country — cost Medicare as much as $100 million in 2010 alone, noting that the largest share of those doctors specialized in family practice, internal medicine and emergency care”.  The report provides graphic evidence of the trend towards higher level coding for E&M services by physicians, including emergency physicians (Figure 1).

OIG analysis of E&M code trends for EPs

The report also claimed that “physicians who consistently billed higher level E/M codes practiced in nearly all States, represented similar specialties, and treated beneficiaries of similar ages and with similar diagnoses as those of other physicians.”  The OIG has given a list of 170 emergency physicians who bill EM level 4 and 5 at least 95% of the time to CMS which has forwarded this list to Medicare Administrative Contractors for investigation, audit and possible enforcement action under pertinent fraud and abuse provisions. Additionally, CMS plans to prepare its own report on the 5,000 top physician billers. The clear inference of these articles in the Times and the report from the OIG is that emergency physicians are gaming the system, using electronic record systems that encourage higher levels of documentation, straight claims up-coding, and the provision of medically unnecessary services to Medicare patients in order to increase payments from the program.   As AAEM and ACEP have suggested, EM physicians are under the microscope, and so-called ‘outliers’ also being threatened with significant penalties and legal action.


There is no question that fraud and abuse of medical coding and claims submission rules hurts all of us: patients, the government, and providers too, especially in an era of limited government budgets and rising calls for action to constrain the cost of care.  Most physicians are in favor of an active effort by the OIG to pursue those providers, hospitals, and companies that are reaping excessive payments at the expense of the Medicare and Medicaid programs, though nearly all provider groups have expressed great concern about the flawed claims review methodologies used by RAC auditors, and how these bounty hunters are compensated.  But what if the method the government uses to target providers for audit and investigation is also flawed, and as a result, innocent physicians are being accused and subjected to expensive civil and sometimes criminal proceedings?

Perhaps the steady increase in the use of higher-level E&M codes by emergency physicians, has other, more benign and reasonable explanations.   Some have attributed this ‘code creep’ to an increase in the number and acuity of the sickest Medicare patients in our EDs, though the evidence for this is admittedly sketchy.  Others have suggested that electronic medical records have enabled emergency physicians to document the complexity of medical decision-making more accurately for ED patients, thus correcting the inappropriate under-reporting of care and acuity in the years before the advent of EMRs.  Certainly, as Medicare and Medicaid Managed Care has taken hold, these plans and networked capitated providers have made concerted efforts to discourage their less acutely ill enrollees from using the ED; and this of course would be reflected in a shift in the average acuity of the enrollees who do come to the ED, and a shift in E&M coding, without having to rely on the idea that ‘sick patients are getting sicker because they are generally older and have more complicated medical problems’.  However valid these possibilities may be, I believe there is one over-riding trend in the practice of emergency medicine that may account a significant portion of the ‘code creep’ that the OIG has tallied and reported:  the trend towards relying on an ever increasing number of Nurse Practitioners and Physicians’ Assistants to provide care to patients in the ED.  Primarily, these Non-Physician Practitioners (NPPs) are directed to care for the lower acuity patients, who are more likely to receive lower level E&M coded services (99281-99284).  As the number of NPPs in EDs grows, the percentage of higher level (99285 and 99291) services provided by the emergency physicians in the ED will of course steadily increase.    The table below (courtesy of Ed Gaines, Stacie Norris and James Rider at Medical Management Professionals, Inc.) shows the percentage of patients with E&M codes 99285 and 99291 cared for by emergency physicians, and those cared for by EPs, NPs, and PAs combined, in the ED in all of the states in 2011.




The following graphic shows the increase in the frequency of use of the 99285 code when only the EP’s claims are considered, compared to the percentage of use of this code when the services of all providers, including the NPPs, are considered., for 2011 claims.  This percentage point increase ranges from 0% to over 7%, and is highly correlated to the percentage of patients that are treated by NPPs in each state, which ranges from 0% to 25%.  The only states where these correlations are not high is in rural states like Indiana, Maine, New Hamshire, and upstate New York, where the use of NPPs is very high, and other factors appear to distort the relationship between use of codes and NPP penetration into EDs.  What this graph shows is that in areas where NPPs see many of the (usually lower acuity) patients in the ED, the actual percentage of 99285 codes used by emergency physicians, as identified by CMS claims data, is artificially and significantly elevated by the failure to consider the claims submitted by NPPs in these same EDs.   Thus, in GA, where 12.5 % of ED patients are treated by NPPs, the % of 99285 codes for EPs goes from 51% to 47.2% when NPP claims are also considered.  This analysis most certainly applies equally to individual emergency physician claims statistics in specific emergency departments, where the percentage of patients seen by NPPs can be as high as 40%.  In such cases, the calculated percentage of higher-level codes by EPs in these EDs would be even more greatly distorted by ignoring the NPP claims data.



The saddest aspect of this distortion is that, as a result, the emergency physicians who work in EDs that employ NPPs to care for a large percentage of Medic
are and Medicaid patients are being targeted for investigation of possible fraud and abuse, when in fact the actual overall cost of the care of all these patients is likely to be LOWER than average, because Medicare and Medicaid pay 15% less for services provided by NPPs!  Talk about a miscarriage of justice.

Over the last decade or two, the use of NPPs in EDs has steadily increased.  According to a study published in 2012 by Brown, et al in the Int J Emerg Med:  from 1993 to 2009, PA visits in the ED rose from 2.9% to 9.9%, while NP visits rose from 1.1% to 4.7% for the nation.   Together, NPP visits accounted for almost 15% of 2009 ED visits and 40% of these were seen without involvement of a physician.  Certainly, a significant portion of the rise in the use of higher-level codes by emergency physicians in CMS data is attributable to the skewing of the percentages by the failure to consider the claims and services provided by an increasing number of NPPs.  I think it may be quite possible that these same considerations account for at least some of the changes in coding noted for other specialists who frequently use NPPs in their practices.

Previously, I posted a blog questioning “why would CMS would target emergency physicians?“, who provide 4-10 times more charity care than any other specialists.  In light of the data posted above, I think it is even more important for CMS to take a second look at how they are targeting physicians for audit and investigation.

Myles Riner, MD is a physician consultant to MedAmerica and CEP America and a past president of CAL/ACEP. This article originally appeared on Dr. Riner’s blog, www.ficklefinger.net


  1. William Jantsch on

    Perhaps this calls into question the entire concept of E and M coding for emergency services. Complexity of Medical Decision Making is problematic; the hypotensive COPD patient in respiratory distress that I intubate and send to the ICU actually presents less of an intellectual challenge to me than many minor cases, such as a child with a rash. “Review of Systems” is covered by the question “Any other problems?”, but documented with lots of clicks nonetheless.
    I don’t actually do my own billing- a trained “coder” does that based upon my documentation.
    The E&M system is perfectly designed to be “gamed”, and I am astonished that it has taken our bureaucrats so long to figure this out. It is time to eliminate this form or reimbursement, and come up with a better plan.

  2. The fact of the matter is that very few of us code ourselves. We rely on groups apparently invisible to ACEP. the mega-corporations that took over our speciality early in its development. I don’t have any idea how my charts are coded, and with EMR’s I have to document enough on a chart so that it can be up-coded by the billers of the Team Healths,the Em-cares,the Fisher-mangolds who reap the rewards of our labor and our practices and put us on the tab for up-coding. We have already been exploited enough by the corporate groups and the owners of them are benefitting from up-coding while we lose our licenses and livelihood.

  3. The corporate groups that “manage” EM have made the EHR’s so that we have to overdocument and every chart is required to be documented at a level 5. That makes up-coding easy for our corporate master, who take on average 70% of our fees. These parasites will laugh all the way to the bank while ED doctors take the legal consequences of their greed. Odd how all those groups that rule our profession that we have to deal with every day are invisible to EPM writers and ACEP. Out here in the trenches, they look very big, indeed.

  4. I appreciated Dr. Riner’s insightful article, and epecially the comment that “relying on an ever increasing number of Nurse Practitioners and Physicians’ Assistants” may account for a significant portion of the code creep. In my experience (25 years) the less training and experience an ER practitioner has, the higher the likelihood of over-testing and over-admitting. While I have worked with many paraprofessionals, and have greatly appreciated their work ethic, I think the ability to treat based on the physicial exam is becoming a lost art.

  5. German J Rigesti, MD on

    Nice article, I did a similar research as a graduation project back in 1995, while my findings where similar, I did however find that over documentation with consequent under coding was also a big issue, in fact bigger than under documentation and overcoming which logically led to CMS to underpay providers, saving perhaps millions on dollars, likely this happened because of Provider’s fear of triggering an audit, therefore collecting less for their services was preferred to the latter!

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