Q&A: Medicare E&M errors

November 21, 2008

Do we have any legal recourse against CMS when we believe it has made an E&M error?

Q: The Current Procedural Terminology manual states that for established patient office visits or subsequent hospital visits, one needs to meet any two of the three criteria for a certain E&M level. CMS is now saying that if the two criteria that meet a certain level are history and physical, but the complexity criterion is lower, it will recode to the lower level. We think that is misrepresentation of the stated policy. Do we have any legal recourse against CMS?

A: Carriers do make these errors. The best way to approach it is to get your state specialty society to write a letter pointing out the error and quoting the language from the E&M guidelines that state the proper interpretation. That should be sent to the medical director, who is obligated to respond within 45 days. You can also hire a lawyer to write a letter, or you can write one yourself-but the more weight behind it, the better.