Comments from Participants
AMA Fly-In, Chicago, April 27, 1998


Dr. Randolph Smoak introduced the comment session, asking 
each participant to limit remarks to two minutes. Green, yellow, 
and red lights were placed on the podium. The time for comments 
was limited to one hour, so a maximum of 15 people could fit in 
if people on dais and at the microphone cooperated with the time 
limits.  He stated that the goal is a Federation-wide solution. 
"Let's not focus on points that we differ on but on points that 
unite us in this real world." Another 30 minutes were to be 
allowed after Dr. Henley's talk for comments and questions 
related to his presentation.

Dr. George Hare, Medical Society of New Jersey

Dr. Wootton's remarks almost parallel those of the 
physicians in New Jersey, so I will just make some very brief 
remarks.
New Jersey wishes to make this thing work, and the 
physicians there will do whatever is necessary to have a user-
friendly document.  We must reflect what has been done in a very 
simple manner to use this word "reimbursement," which has been 
taboo in the publications that I read and despite what was 
published in the New York Times and the Philadelphia Inquirer I 
am not too sure that that set very well with the practicing 
physician. It is ironic that we are here today to discuss a 
documentation guideline when the physicians in New Jersey are 
asking the legislators to put the HMO's managed-care programs in 
line and not hold payments back 120 to 160 days.  Somewhere the 
physician must be recognized for what he or she does. We know 
that HCFA wants to make sure that we are doing it properly, but 
they must expect that we need to be reimbursed for the time, the 
expertise that we put in for the quality care of our patients. 
Documentation must not be rigid, it must allow flexibility 
for the specialist who do not do what I do as a geriatric 
physician in the geriatric division. I don't want surgeons to 
clutter up my records because they are trying to do other areas 
that they have not been asked to do.  They get in my way and I 
must ask them to stay out of my area of expertise.  What has been 
accomplished must be user friendly, it must be workable in a 
physician's active practice. I have to chide my peers because 
they gave us an original document that was not user friendly.  It 
was not what the practicing physician needs and wants to work 
with.  Somewhere amongst all the papers here, all of the papers 
on my desk, everything that I sign is a patient.  
I have been in practice for 38 years in medicine, I have 
seen it all and I have accepted fruits and vegetables as payment 
when I first started out from my farmers.  I would like to 
continue in medicine.  I would like to get back to what I think I 
do best - take care of the patients, and I ask you to give us a 
friendly user document that we can work with and support what is 
necessary.  

We have no problem with weeding out physicians who abuse the 
system. If you get them, and they are abusing it, you know they 
are abusing it, take them out of medicine; we will support you 
100%.  I thank you all. We thank you for your attempts here.     
          

Dr. Lee McCormick, President of Pennsylvania Medical Society

I have a number of concerns.  I believe that somebody needs 
to say that most physicians are in fact providing the services 
for which they bill.  Now they may not be documenting but I don't 
think HCFA is being cheated very much.  There are a few, but I 
think most physicians are providing the services for which they  
billed.  As a matter of fact, I think that more physicians are 
down-coding because they have concerns that their documentation 
may not in fact meet the level of service they provide.  
I have some problems with physicians being lumped in with 
home health agencies and hospitals and durable medical equipment 
providers, and I thought that the statistics that were provided 
were very interesting: a $12,000.00 claim for a hospital, 
$2,900.00 for a home health agency, $3,000.00 for DME and $42.00, 
$114.00 and $70.00 for physicians.  I think with the publicity 
that has been occurring with this, I think physicians being the 
bright folks that most of us are will learn to document better 
and I think that the payments to physicians will then go up 
because they will in fact be documenting what services they 
provide.  Now my fear there is that we can't win because then I 
think that our payments will be ratcheted down because we are 
billing too much.  
The other concern that I have, and I appreciate all of the 
statements about the intent to go after only those who would 
willfully and intentionally defraud the system.  Now we all know 
in the history of this country, there has never been a government 
agency or a government official who abused their power. 
(Laughter, applause.)  We accept that as a given. If such a rogue 
were to suddenly appear and start to pursue physicians who were 
making mistakes, what is our recourse?  What can we do, can we go 
to somebody in HCFA, the OIG and what will our AMA leaders do if 
that should happen?  Thank you for the privilege of the floor.

Dr. Mel Sterling, CMA

Now look around this room, there are what 300 of us here, 
and we are here because of a crisis in medicine and this is not a 
crisis of a new plague, it is not a crisis of antibiotic 
resistance, it's a crisis of the making of our government.  In 
this room, there is an endocrinologist who quit medicine because 
of these guidelines.  In this room, there is a general internist 
who no longer takes any new Medicare patients. In this room, are 
representatives of medical associations where in large cities 
physicians no longer accept any new Medicare patients.  What is 
wrong?  What is wrong?  

Physicians are demoralized, physicians are frightened, 
physicians don't feel that they are being treated fairly, 
physicians feel that they have to stand up and say that they are 
not crooks.  What is wrong?  
We know that there are people who submit inappropriate 
claims, and we know that the government has the ability to find 
those physicians and other people who bill Medicare.  We know 
that the government has that ability. To try to distort the 
purpose of our clinical record, the tool that we use to take care 
of our patients, so that these things can be prevented instead of 
rooted out and dealt with when they occur, you know, that would 
be very nice if we could prevent those things without distorting 
what we do.  But we have seen, and you know and the reason that 
we are here today is because that can't be done.  
Now if I were an artist I would draw the following cartoon, 
I would have a tent and that tent would be where all of our 
patients are and where we would deliver health care.  And outside 
that tent there would be a camel, a big, fat, foul smelling 
camel, and that camel would be the destructive effects of 
government intrusion into health care.  Now the proposed 
documentation guidelines that brought us all here with their 
horrendous number of bullets, that was the camel sticking its 
butt into the tent and we said, "This stinks."  And everybody 
heard us and you know what's happened, that camel turned around 
and now we see fewer bullets; we see the nose of the camel 
sticking its head under the tent flap.  Ladies and gentlemen, we 
don't want that camel in our tent.  Thank you.

Dr. Morton Field, American Association of Clinical 
Endocrinologists

I would like to take exception to Mr. Vengrin's comments 
that the notes "stable" in a hospital record do not adequately 
define a procedure 99233. (or whatever)  Here is my explanation: 
 I do a lot of consulting work as an endocrinologist in patients 
who have diabetes and a complication of the underlying illness.  
A patient that I saw the day before I left is a patient who had 
just recovering four days from a myocardial infarction.  He has 
active hyperparathyroidism, he has renal failure, he has 
diabetes, he has got a DVT and he is on anti-coagulants.  I 
reviewed the laboratory work, I reviewed the notes of the 
proceeding other two consultants, I reviewed the x-rays, I 
reviewed the physical examination. I spent an hour and fifteen 
minutes with the patient.  I wrote in my report, patient is 
stable.  This is perfectly adequate for the general internist for 
whom I am doing the consulting work.  He hasn't called me up and 
said "what do I need to write?"  He can review the lab work, he 
can review the x-rays, he can review everything else too.  He 
wanted my opinion on the stability of the patient and I gave it 
to him and only with my experience and expertise and time spent 
was I able to do that.  Now I object to someone who wants me to 
get up there and write like a third-year medical student.  Thank 
you. (Applause)


Mr. Vengrin: Sir, that was not Joe Vengrin's medical decision, 
that was by the carrier and I believe it required a history and 
they are just following the guidelines.  So essentially the 
guidelines need to be modified, follow the new guidelines but 
again, it was not the OIG making that determination.  

Dr. John Schneider, Illinois State Medical Society

I am also a professor of clinical medicine at the University 
of Chicago.  We need to emphasize, and I raise this as a 
question, when the CFO finds problems with documentation, when 
the carrier finds problems with documentation, do they, should 
they not have the responsibility to go to the individual, discuss 
with that individual what the problem is and enable that 
individual to improve his or her compliance with documentation.  
I would be a terrible teacher if all I did when I finished with a 
junior student or a resident is wrote a note that said this 
person doesn't know how to document.  My responsibility as a 
teacher is to sit down with that individual and explain what the 
issues and problems are.  I have not yet heard, and certainly 
when I talked with our carrier, a commitment on the part of the 
CFO, on the part of HCFA or anyone to say if we find a problem we 
are going to sit down and correct it through education because 
that is the only way you are going to improve documentation.  
That is one question.  (Applause.)
The second is that it has been mentioned here the importance 
of evaluation and management being more important than the 
history and the physical.  This is crucial for the consulting 
physician.  In Illinois one claim was down-coded from a four to a 
three because there wasn't enough physical examination, yet the 
purpose of the consult was this was a patient with chronic 
serious illness who had multiple allergic kinds of reactions, and 
the consultant was being asked: How should this patient be 
managed? What additional studies need to be done? That's what 
really mattered, the fact that the physician didn't examine 
enough components was immaterial, which raises the next question 
and this is in important in terms of looking at the program, we 
need to take guidelines, have them reviewed by whoever does it 
and then much as has been done with utilization review, a 
physician then needs to look at it independently and make a 
judgement as to the level of complexity. If we find that 
guidelines for whatever single system or multi-system organ don't 
match up with that independent physician's assessment, then those 
guidelines need to be changed.  

So these are the important issues.  We need to evaluate the 
guidelines and make sure that in the opinion of a physician they 
actually describe what is going on in those cases, and if it 
doesn't it needs to be changed.  We need to place an opportunity 
for more evaluation and management emphasis and as Dr. Berenson 
was mentioning, one of the issues we also need to do is look at 
the entire spectrum of the care for that patient.  History and 
physical on first visit, set up a series of plans and 
documentation? And on the third visit, does the physician have to 
repeat the history and physical in order to document that the 
evaluation and management was the major emphasis and the decision 
was made whether cancer chemotherapy, medical management or 
whatever was really all that is in the record at that time.  So 
there needs to be an emphasis on not just looking at single 
records but looking at multiple records and judging them in 
continuity.  Thank you.

Dr. Smoak: I turn too my panel to respond to the three questions 
he has posed...first on education.

Mr. Vengrin:  On education, when the result of the 96 audit first 
came out and we looked the statistics and the problems, the first 
thing that came to my mind was education.  Clearly we embark on 
an education program, the carriers were expected to take the 
results back and make them known.  If that hasn't happened, I 
will follow-up with HCFA and Nancy-Ann personally and they can be 
sure that this in fact happen.

Dr. Berenson: Let me just comment on education also.  It is a 
little daunting for me to think that they can do for HCFA what we 
did with 5000 doctors in a local PPO but we in fact were able to 
provide patterns of coding back to a physician with the 
percentages for similar physicians in the same specialty to point 
out to physicians that their pattern deviated from the norm. That 
often generated useful conversation I would say about 75% of the 
time; 25% of the time was rather hostile conversation.  We 
changed some behavior.  I would like, having heard the comment 
earlier about pattern analysis, I would hope that we can start 
doing more of that and do more education.  At the same time, it 
is going to take a while to get that kind of thing and it will 
still need to, the notes still have to defend themselves at the 
same time but I am committed to working with the AMA to ... do 
more education.  On your other point, again I guess I would 
reaffirm that I am comfortable with the notion that the history 
and physical may have a little too much emphasis in the current 
definition.  

Dr. Reardon: I couldn't agree with you more on the education....

Dr. Jacinto del Mazo, Medical Association of Georgia


I came here 30 years ago.  When I came here, I was amazed of 
the degree of respect, appreciation, even admiration that our 
patients had.  In these last 30 years, I kept seeing the 
profession going from an admired profession to a special 
interest, to presently being criminalized. This has happened 
during the watch of the present leadership and the previous past 
leadership of the AMA.  I have been talking at length and 
organizing a group of physicians. At this time, not a single one 
has been satisfied with what the AMA has been doing on this 
issue. We come here to express opinions and we have one hour to 
talk but the rest of the time is for some kind of way to 
indoctrinate us. The problem that we have experienced, physicians 
are demoralized, they are leaving the profession, they are upset. 
 I heard a physical recently who talked to me and said you know I 
haven't been paying my dues to the AMA for years.  And I said why 
do you do that?  He said you know when I have a yard and I get 
somebody to cut the grass they don't cut the grass, and they do 
it over and over and over, eventually I don't pay them. I say you 
are looking at the situation wrong. You need to get the grass 
cut....You need to have someone looking after your interests, 
which I'm not sure the AMA is doing at the present time.
The implication that there are $20 billion dollars of 
improper payment is obscene. Basically, since the physicians make 
19% of the payments, the implication that 10% of them have made 
an error, physicians will have to work for free and pay for the 
privilege of working. Something is wrong, the measurements are 
wrong.  We need to get out of the way that we have been looking 
at this problem.

Comments by Dr. Nancy Dickey:

[The question is whether we] prefer to have HCFA contracting 
with someone that is a corporate entity that either has no 
physician input or has only their corporate physician's input.  
We heard you in December, we had worked hard and as soon as we 
get done with this open comment, some members of the CPT panel, 
Dr. Henley in particular, are going to present the work that has 
gone into trying to take the comments that have come since 
December from physicians in trying to correct, improve, make 
better the documentation process.  The very fact that we are all 
here today listening and saying here are the steps we have taken, 
are they the right direction, do you want to do something else is 
because the AMA [believes] physicians believe that you would 
rather have a process in which you can gather like this and 
someone will listen to you.  Now, is it a perfect process?  
Certainly not.  Did we make errors in the documentation that came 
forward in the guidelines that came forward? Obviously so.  But 
having an organization that speaks for physicians and that 
organization choosing in this instance to believe that we would 
rather have a mechanism for voice than to have black boxes as we 
had in the past gives you the opportunity to come together and 
say hey it's not working, let's try to change it.  I would say to 
those people who don't pay dues that the delay that we got until 
July the 1st came from those of you who pay your dues, who say 
organized medicine do something, the further delay that was 
announced this morning by Dr. Berenson came from those who pay 
their dues but the non dues payers are going to benefit from it 
just as much as those of you who pay dues, we ought to be very 
frustrated by the small number who are carrying the load.

Dr. Reginald Harris:


Let me follow along on that just briefly.  This meeting is a 
culmination of a lot of work by your AMA leadership and AMA 
style.  The letter that you received from HCFA and Nancy-Ann Min 
DeParle today via Dr. Berenson just didn't happen, it happened 
because a lot of work and a lot of our time has been spent 
communicating with HCFA and explaining the problem that you are 
enunciating and our frustration with what is happening.  Our 
staff has been in constant contact, we are working hard on your 
behalf and meetings like this are what come out of the AMA's 
efforts.  It is now time for you as a practicing physician to 
come in and help us create a solution and help solve this 
problem.  This is a serious problem for the practicing physician, 
we recognize it, you recognize it, everybody in this room 
recognizes it but the way we solve these problems is to come 
together under the leadership and that is what we are trying to 
do for you.  

Dr. Mitchell Miller, Medical Society of Virginia:

[I'm] a very close neighbor of Dr. Wootton's.  I also am 
President of the Virginia Academy of Family Physicians and a 
practicing family physician.  I would like to address my comments 
primarily to Mr. Vengrin and Dr. Berenson.  About eight days ago 
we sponsored a meeting in our State to review these guidelines 
and also invited the representative of our State carrier to 
discuss, this was the President in charge of the fraud and abuse 
division, just to discuss various aspects similar to what we are 
discussing today and to try to reassure the majority of our 
members about their behaviors and what likely they might expect 
from that office.  A particular issue came up about physicians 
supporting the documentation of home-care providers and durable 
medical equipment providers and the fact that we spend hours of 
our week, those who care for these type of patients, signing this 
documentation really receiving no reimbursement for doing so to 
more or less [provide] oversight of the patient care or basically 
signing off on what these people are doing.  Now the problem with 
that is most of the time we have no idea what is really going on 
out there, we are assuming, we are taking a leap of faith in the 
fact that the services are being provided that are being sent 
over to us for a signature.  We specifically asked this person, 
who may be in their position with the carrier, what exactly is 
our liability.  Suppose somebody out there is going things they 
shouldn't be or not doing things they say they are doing and 
we're the ones signing this paper?  We received no reassurance at 
all, in fact, [the official] said you guys better not sign that, 
you better read every page of that very carefully. [But] we have 
no time for that.  Now you can take this as two issues: One, I 
think we ought to get ourselves out of that game of having to 
sign all of this, but that is another issue.  My concern is that 
we were essentially told by the State carrier's representative on 
fraud and abuse that we are high liability for signing things 
that we really don't have a whole lot of control over and aren't 
being reimbursed at all for so while you are trying to be very 
reassuring to us today that just being basically good physicians 
and doing what we are supposed to be doing, that we shouldn't 
have to worry about this higher level of pursuit by the OIG or 
whoever, we are not getting that reassurance on the State level 
and I wonder if you can comment on how we can continue to 
persuade physicians of our State and across the nation that in 
fact we are not sitting in jeopardy on a regular basis from these 
kind of pursuits.  Thank you.

Response from Mr. Vengrin:

I am not going to be able to give that answer today.  I am 
aware of this issue and will look into it much more than I have 
up until now.  It is of concern.  We have a real problem with DME 
and in some cases-home health agencies and I have looked to the 
physicians but you make a good point about the physician feeling 
caught in the middle on this one so I will look into this....

Dr. Berenson [?]  I'll defer to HCFA on this one. I believe 
that if you make the certification, it's a problem....There are 
many legal ramifications and I think that it needs to be looked 
into further.  


Dr. Smoak:  Mr. Vengrin is going to have to leave at 11:30 
sharp...

Dr. Steve Babic, Florida Medical Association speaking for himself 
and the physicians of Florida:

I think what you hear here and we have heard for the past 
weeks and months is that this system is too complex.  My friend 
who is an M.D. and MBA could not figure out the proper coding for 
ophthalmology, that is a big problem.  We don't see how in the 
next six months that you are going to correct this problem.  So 
we are very concerned, I am an intelligent human being, I have 
been through medical school, graduate school, internship, 
residency, and you have made it difficult for me to try to 
practice medicine.  That is one concern.  
The second concern is why are we doing this to begin with.  
Does it improve the care of my patient?  The general perception, 
whether it is true or not, it that it is not going to improve the 
care of my patients.  It is only to try to get it to down code 
for the government to save money... That is the perception.  
The third thing, which is directed to your office, is that 
in Florida we have been told that 38% of the physicians' offices 
will be audited, the penalties will range anywhere from ten 
thousand to five hundred thousand dollars, the average fee will 
be eighty thousand dollars. When you come in and you assess a 
penalty to us what you have done in the past is you sent us a 
letter saying you have an eighty thousand dollar debt to the 
government, you have 30 days to pay it, if you don't pay it we 
are turning off your Medicare computer.  Thank you.

Mr. Vengrin's response:

Sir, I am not now aware of any OIG effort centering in on 
physicians at all.  If you can give me more specificity, I will 
certainly bring it back to the Chief.

Dr. Joe Bailey from the Medical Association of Georgia:


One thing we would like very much Mr. Vengrin is to have a 
copy of your slides that you presented today, it would be very 
helpful  for my association....  One of the things I would like 
to say is that you know it is a wonderful thing to be able to 
come together here today to address this issue.  The American 
Medical Association basically has made this possible.  The House 
of Delegates of the American Medical Association and its Board is 
widely interested in these issues and I think the derogatory 
comments about the diminishing size of our organization and such 
as far as membership is concerned is very important.  But I do 
think everyone needs to take heart in the reality that the AMA 
was able to bring this meeting together here, not anybody else, 
today....
Secondly, I think any organization which can't tolerate 
criticism is in serious difficulty. Ours can, we demonstrated 
that last December.  
One of the comments that I would like to make is a note that 
the purpose of the CPT is to provide uniform language to 
accurately describe medical, surgical and diagnostic services, 
providing an effective and unmatched means of communication among 
physicians, patients and third parties. Medicine really, the 
language of medicine emanates in medical school and residency and 
fellowship training programs, not from conventional programs to 
accommodate the development of ability to bill for services.  And 
I think somewhere in this we have really screwed up in the 
context of confusing these two commodities and we are very much 
in danger of destroying the reality of medicine, which involves 
the translation of patients' problems into workable solutions, 
not into a mechanism that will ultimately satisfy the Federal 
Government or other third party payers who are involved in trying 
to intervene for the patient.  
The patient/physician relationship is the fundamental issue 
that we need to address, not the damn relationship between us and 
the Federal Government or any other third party payor.  The 
patient has to assume and be restored to some position of 
responsibility.  
If you sit down and try to figure out how to bill and comply 
with the current government [regulation] involved in the control 
of our profession you are going to spend the rest of your life 
working on that and not furthering your education or improving 
your ability to take care of the very person who is there to be 
the recipient of your care, the patient.  I am highly disturbed 
by a situation further that invades medical schools and destroys 
the medical education process with the same mechanisms that are 
applied across the board....I've used up more time, I would like 
to stand here for about 30 minutes and say what I really 
think...I will sit down and be quiet.

Dr. Duane Cady, Medical Society of the State of New York:


I am from Syracuse, New York, and I am President of the 
Medical Society of the State of New York and have just come from 
our House of Delegates where we spent the entire morning 
yesterday discussing the E & M Documentation Guidelines and I 
want to present to you our official position statement rather 
than some of the specific things that have been mentioned this 
morning, as important as they are.  However, I think it is 
important to let our HCFA officials and others know what the 
almost 30,000 physicians of New York State feel about this issue. 
 	First we recommend that our AMA insist on an indefinite 
postponement of the implementation of the documentation 
guidelines for E & M services by HCFA until such time as they are 
suitably revised.  
Second, that the revised guidelines be simplified and based 
on additional input obtained from the national State specialty 
medical societies including practicing physicians.  
Third, that the revised documentation guidelines for E & M 
services enable physicians to choose between time and E & M 
coding on a case-by-case basis to identify the level of services 
performed.  
Fourth, that the revised guidelines be meaningfully field 
tested by using demonstration projects until upon usable and 
acceptable to our AMA and the practicing medical community. 
Fifth, that physicians not be subjected to criminal 
prosecution or any other form of penalty for inadvertent E & M 
coding errors and that HCFA should instruct the carriers to 
emphasize education, as John said, rather than punitive 
downcoding, payment reductions or allegations of fraud and abuse 
or financial penalties carried out by extrapolation of prior 
payments.  
Sixth, that physicians shall receive a very clear and 
unambiguous statement of the manner in which fraud and abuse 
statutes will be applied to coding and documentation this year. 
Seventh, that physicians should be afforded an efficient 
process for appealing downcoded or denied claims.  
Eighth, that carrier budgets allow sufficient staff and non-
staff resources and time for training for physicians and carrier 
staff to [understand] coding and documentation.  
Finally, should the documentation, and this is our fall-back 
position, I think many physicians feel this way across the 
country, should the documentation guidelines continue to be 
complex, unreasonable and overly burdensome following the 
revision, field testing, and physician assessment processes, the 
Medical Society of the State of New York demands that the AMA 
strongly oppose implementation of such guidelines and continue to 
rework them until acceptable to the physician community and to 
ensure that the presumption of innocence and physician due 
process be guaranteed.  

Now I realize that these suggestions are probably not as 
strong as the entire morning of debate that we heard yesterday in 
Syracuse, New York, during our meeting but I think that we were 
able to let calmness prevail.  We listened to Nancy Dickey's 
statement that she made just this week from Congress and took 
some of her statements and put them in our recommendations.  We 
think they are excellent recommendations; we do not want to see 
the coding documentation guidelines go away, we think that they 
are important for the medical record in the documentation for the 
care of patients is reported not only for the physician who does 
it but for the person who might have to take over for that 
physician.  So we recognize the importance of these issues but 
like many others have said before us, we are very concerned about 
the heavy handedness hand in this of the OIG and the attorney 
general, the FBI and Medicaid Fraud and Abuse people who go 
around and give talks around our State anyway about how heavy-
handed they are going to be with physicians.  We are offended by 
these percentages that you have presented here, as 100% being due 
to physicians. Your percentages were corrected, we appreciate 
that and urge you to give us that data.  Saturday we have a 
presentation by the HCFA people in our regional office and they 
said oh this 23 billion and the now 20 billion, this is 
inappropriate. This is an attack on the physician's integrity and 
professionalism and we do not like it.  So other than that, I am 
very happy with the AMA's bringing us here together and for you 
to be here to listen to us and appreciate the opportunity to work 
with you and New York State pledges itself to work with the AMA 
to solve this problem.

Dr. George Sample, the Society of Critical Care Medicine:

I am a very very close neighbor of Dr. Berenson.  I am about 
to recommend after I with this diatribe that will probably bring 
peals of laughter among you and not applause. Those of us who 
practice critical care medicine use 99291 as our major code .... 
Ironically we are only the fifth largest user in the country of 
that code.  In 1994 it represented the 22nd highest payment 
benefit nationally...so it is a big hunk of change and it has 
caught the attention of a lot of people. For Mr. Vengrin, I would 
like to remind him that those who use that code are highest on 
the OIG's hit list, second to drug traffickers.  The work plan 
for 1998 for OIG includes investigation of those of us who use 
99291, which include everybody from pulmonologists to in fact 
pathologists if you can believe that.  So we are under siege I 
think not only at the national level but also at the local level. 
 We have no documentation guidelines so the carrier medical 
directors have taken very arbitrary inconsistent interpretations 
of that and have penalized some of our colleagues, not criminally 
but financially.  For example, in one area of the southeast part 
of this country the physician was accused of upcoding to the tune 
of $8,000 and was penalized an additional $325,000.  I have about 
six examples in which a quarter of a million dollars is the usual 
penalty for upcoding to the tune of $8,000 or $10,000. So in fact 
although it is not a criminal penalty, this financial penalty 
will essentially put them out of business. So what I am 
recommending for our help is to develop documentation guidelines. 
 We have got to stop the arbitrary inconsistent capricious 
interpretation by the carrier medical director.  Dr. ..., who is 
leaving, has been instrumental in helping us, but the effort has 
to go on.  I think we need to sit down with the AMA, the CPT 
editorial panel and national societies, Dr. Berenson's folks, and 
develop these guidelines, field test them, just like everybody 
else is suggesting.  

Mr. Vengrin, would you like to respond to that?

Mr. Vengrin:  I really can't comment on some of the open 
investigations, I don't know whether it's a part of our office or 
part of DOJ, I certainly can't speak to DOJ but I echo your 
comments.  I really do think that the documentation.....we know 
you are busy people but in terms of continuity of patient care 
and in case one of you folks are not here, certainly one of the 
members in your practice has to pick up and treat that patient.  
You have been documenting information to case workers for many 
years and I think that much of our problem can be resolved by 
better documentation. Certainly not the '97 guidelines but in 
terms of these investigations that are going to be around, I 
would like to make it go away for you, but I can't. But clearly 
in terms of legal liability and patient care, we have got to do 
something and work together on this documentation issue and to me 
that is the critical thing that needs to be resolved here today 
in this committee.

AMA (Dr. Randolph Smoak?):

We have heard this type of thing in the past and it really 
always scares the daylights out of us when we hear the numbers 
that Dr. Sample commented on.  We never know the vignettes in 
which those occurred.  Is it possible that you can supply some 
accurate information that wouldn't be prohibited in some way to 
Mr. Vengrin so that in some way we could get an answer to it.  I 
am sure it would be very satisfying to many of us in this room if 
we had some idea of the validity of that because you know so many 
times things get started and there is nothing to it, it is 
totally misconstrued....

Dr. Reardon: Are you suggesting that physicians who have been 
penalized contact Mr. Vengrin?

Dr. Smoak: In some fashion through you or otherwise...if that 
doesn't.....interfere with any confidentiality to do that type of 
thing. Tom?

Dr. Reardon: Thank you, and or us... I mean we hear these 
circumstances, but we need some factual information.  If I 
remember, what Mr. Vengrin said was that when there was a 
physician that was penalized for upcoding they said they had to 
pay the money back but there were no penalties, and yet you are 
telling us that there are serious significant penalties.  We need 
that factual information to take back to HCFA, the IG, and the 
Department of Justice to say someone is wrong here, you are not 
playing fairly.  

Mr. Vengrin:  There was a statement at the hearings that one of 
the physicians had had to pay several thousand dollars as a 
result of a dollar billing error, and in checking into it that 
certainly wasn't the case.   If you have any specific examples, I 
would be delighted to pick this up.

Dr. Jane Orient, Association of American Physicians and Surgeons:

The details of our concerns we passed out in a white 
envelope. If you want one and didn't get one yet, I would be 
delighted to give you one.  I want to just get to the basic 
premise.  We all seem to be accepting the assumption that because 
29% of 10% of Medicare claims aren't considered to be justified, 
we are going to impose a very expensive, onerous system of 
documentation on all physicians in the country, which could be 
used as a tool to prosecute anyone because we believe 100% 
compliance is essentially impossible.  Now the American Bar 
Association has an ethical code for lawyers about their 
documentation and it says you will protect the confidentiality of 
your client.  Instead of that, we are going to have medical 
documentation that makes us into scribes for the government and 
the insurance industry.  In order to collect third party payments 
we have to put all of this detail in the record that will be 
turned over to a third party to the patient's detriment.  Now 
some of our members have said to us we have the distinction of 
belonging to the generation that gave away medicine without a 
fight.  I submit that it's worse than that.  We are part of the 
generation that is forging its own chains and handing the keys to 
HCFA or to the Federal Government. All of their good intentions 
that you will be prosecuted only for doing egregious things 
really don't have the force of law. They are irrelevant. They may 
sound good but they are not going to protect doctors who fall 
into the pit.  They are certainly not going to protect the 
patients.  
I think we are selling out our patients' confidentiality and 
we are selling out our own integrity. The proper position of the 
AMA on this should be simply to say that the practice of medicine 
and the medical record cannot be reduced to a series of check 
boxes enforceable by law. If the AMA is not willing to take that 
position, then maybe physicians should reject the AMA as their 
representative.  
I do have a question for you: Does the AMA have a contract 
with the Federal Government, and when will they release the 
details of this contract to its membership?

Tom, would you like to respond?

Dr. Reardon: Thank you.  Let me give you a little history on CPT. 
 CPT has been in effect for 32 years, since 1966. In 1983, yes, 
the AMA has a contract with HCFA to provide a coding system which 
would be used in Medicare and Medicaid.  We receive no money for 
that contract.  Any money that we receive from the CPT activities 
are ... royalties which we get from selling the CPT book ... We 
simply have a contract which is a physician-driven CPT 
organization so physicians have input into the coding system and 
we have a contract to supply that to the government for their 
use....  


Dr. Smoak:  And I might add that there are other organizations 
with a royalty arrangement  purchase CPT material and sell it 
themselves in addition to the AMA; so it's not AMA alone.  And 
now Mr. Vengrin has to leave right now and do you want to comment 
on that before you do and then we want to thank you.


Mr. Vengrin: I believe that the documentation that the Federal 
Government is attempting to get here is no different than that 
[which] is required for other insurance claims and also that 
which many of your have been doing [already]. I think that the 
statistics speak for themselves.  90% of these billings are okay. 
 I think last year 86% were okay. This is the second year that we 
have done this.  Documentation problems that surfaced out of 
these review are not new.  The carriers have many more examples 
so I don't think we are dealing with a huge problem, I think we 
are dealing with a  small group that needs the education that we 
talked about.  I don't believe it's onerous and I think we should 
continue.  


Dr. Smoak: Mr. Vengrin, thank you very much for being here with 
us.  We know you represent an agency that is a threat to all of 
us but hopefully.....your comments will be reassuring. Thank you 
very much.

Dr. Michael Rabkha (?) American Academy of Ophthalmology.  

I come on Monday from our State Society leaders and they 
have a number of suggestions and comments which I wish to raise 
now.  Some of those have actually already been made. The first is 
a simplification of the medical decision-making portion of the 
examination, [which is now] simply too difficult to document in 
the time frame of a clinical exam.  The education and the time 
interval for implementation of the program simply has to be 
better this time around.  Carriers that were running around 
trying to figure out what they were implementing, physicians who 
had no idea what they were supposed to implement, simply were 
raising the issue of frustration to a level which raised this 
group [to come into] this meeting.  Lastly, it was asked by some 
of our members that some method of pre-examination (not pre-
payment) method of evaluating clinical forms, clinical 
examination materials, to examine their suitability for various 
coding levels should be done, and lastly a personal observation 
as the documentation guidelines have moved from their 1993 
request that for a Medicare product could not be implemented by 
other payors; that we look at these guidelines again in terms of 
what other payors need, not just the Medicare beneficiary age 
group.  

Dr. Glen Littenberg, American Society of Internal Medicine: 


I am a practicing gastroenterologist from Pasadena so I am 
not a neighbor of any of you all. I represent the American 
Society of Internal Medicine was have also been part of the 
working group working with the American College of Physicians and 
their impending merger. We have heard a lot of things that may 
give us some reassurance in all of this about where it may be 
going and yet I think we also have just cause for a great deal of 
skepticism yet and I don't think we should be lulled to sleep.  I 
am very happy to hear about [a move] towards a much simplified 
documentation guideline and like much of what I see in the 
framework but there are several reasons to be skeptical.  One is 
I don't see that there is any likely feasibility near term of 
greater funds available through the government to fund the 
educational outreach efforts that are going to be needed.  Where 
is this going to come from?  We see more and more pressure on the 
carriers and they are going to actually be reducing the level of 
services or else charging us fee-by-fee for us as users.  How is 
this in sync with what we are claiming is going to be adequate 
education for what we're going to do.  We clearly need a pilot 
test but it is going to take a lot of time, a lot of complexity 
[it's not going to be at all easy get data back from the field 
about how any new documentation guideline would actually work.  
We have got to have credibility to the results of this test and 
we certainly shouldn't be held responsible to new guidelines 
until we are satisfied with the results of the pilot test.  
I have to have a huge skepticism about the intention of the 
government; I am well aware of the case from the DOJ in which an 
indictment was handed down criminally to a physician through the 
Champus program based totally on a computer analysis of the CPT 
codes this physician used.  The typical times were added up, they 
exceeded the time the physician appeared to be spending in the 
clinic and therefore criminal indictment was provided.  I 
actually wound up looking at some of the documentation and 
thought this physician did an outstanding job compared to what I 
generally see in practice.  Not only this but the guidelines that 
were being applied in the case were being applied retroactively. 
 There were cases that were being provided by the physician 
before the first set of guidelines ever got released.  So we have 
got to have a great deal of skepticism about the intent of 
government. 
We should certainly pursue further simplification of the 
guidelines; there is a lot of unnecessary documentation that we 
should be able to document by short-hand.  We should not need to 
reiterate stuff already in the chart.  We should be able to 
reference materials that other people have provided in the 
hospital situation. We don't have to repeat the entire history 
and physical and everything else that is already satisfactorily 
done....  We have to look at that.  
I certainly back Dr. Berenson's emphasis on the medical 
complexity of decision-making being something that needs more 
emphasis but is also because it is inherently very subjective.  
We must be very careful about what kind of documentation we are 
going to impose for looking at this.  We do need to emphasize, as 
the framework suggests, that it's very appropriate to be using 
the time for counselling and coordination of care as an exception 
that will actually justify many of our services.  So we are going 
in some right directions but we have got good reasons to be 
skeptical and we have got a lot of work to do and we have a lot 
of time and effort before us.



Dr. Chuck Novak, American Society of Anesthesiologists:

I'm only a neighbor of Dr. Wootton's and Berenson's since I 
was born here in 1942.  Also I have served as ASA's 
representative to the RUC.
My comments center around the examination issue and the 
general multi-system versus the single system.  I understand the 
reason for developing the single system but as I read the 
guidelines a number of times, I kept wondering what happens when 
there is significant work done in two-to-nine systems.  As I read 
them over and over I think there was room in the general multi-
system exam for that kind of a thing but there are a number of 
visits some of which occur in my specialty [and] which I can 
think of in many specialties that involve significant work in two 
or three or four.  The first glance of the new framework look 
like that may be addressed but I did want to make that comment.  

Dr. Rick Holmes from the South Dakota State Medical Association 
and also ACP and ASIM:

I am from South Dakota, and I am not a neighbor of 
anybody's.  I have two quick questions, one to Dr. Harris and the 
other to Dr. Berenson.  
Dr. Harris, in my review of the whole scenario we talk about 
coding for time. I think we're reviewed for time. They look at 
how many 99214's in a day you can do and if there's an outlier, 
the red flags are up. We talk about coding for time when we do 
50% of more counseling.  I see in your example you talk about 
extending that a little bit.  Have you considered just coding for 
time for those people like our endocrinologist friend from 
California who says I spend an hour and a half on this person and 
I answered the questions that should be enough, can't we, 
shouldn't we be able to just code for time if we are not willing 
and desirous to go into all of the [complexities] and once more 
maybe we don't want to give away the confidentiality issue.  
The second question was for Dr. Berenson and that had to do 
with addressing the issue of education.  My medical director, 
Mike Hope, director of the ... says, well [HCFA's position] is 
that the educational responsibility is that of the sub-specialty 
society, and I know we had a carrier walk around in 1995 and give 
a quick educational session that was entirely inadequate, good 
guy, but a bad educator and now we need a huge effort.  Where is 
the money going to come from?  Who is responsible to do that 
education, is that going to be the AMA?  Is that going to be the 
ACP/ASIM?  Is that going to be the carrier?  Who is going to do 
that education?  Somebody needs to define that better and would 
you help us with that.  So question of timing, question of 
responsibility of education.

Mr. Harris:


The time issue discussion about billing for time took place 
a long time ago ... before I was on the panel.  There was a lot 
of interest for a long time but my recollection is that this was 
felt that it was a trap, you got fixed limits.  If you've got a 
certain number of minutes to do that you need to multiply that by 
into an eight hour day and then you wondering how did you work 32 
hours yesterday.  Many physicians can make a prompt decision, 
they can handle a matter quickly and why penalize that physician 
and hold him to a certain time when he is well trained, perhaps a 
super specialist and knows the job well and doesn't take a lot of 
time but still does a proper job and gets the proper outcome and 
he shouldn't be penalized.  I guess you said a little bit of one 
illustration that's been attributed to us internists: some of the 
articles in the past said that an internist is just a slow GP.  
Well if that's true, we don't want to penalize some of our 
players.  We continue to hear from time-to-time suggestions that 
you use time. We haven't had any formal activity, but I think the 
panel is convinced that we are better using an estimate of time 
in there that's basically a range; you're not committed to it. 
Basically, the panel would be opposed to anybody trying to take 
those typical times if you will and use them to add up to a 
number of services and visits somebody had, that would be I think 
an unfortunate thing to do....I think it's been mentioned, that 
Champus thing, and we'd be opposed to that. Now as far as the 50% 
or more time, when you're doing coordination of care or 
counseling, we think that that particular thing will help a lot 
of people who don't have a lot of these things on history and 
physical but do spend a lot of time. We really just want to draw 
your attention to that.  That is one mechanism to use in coding 
for time when you actually spend that extra time providing the 
service.  

Dr. Reardon:

Just very briefly as a follow-up...the debate on time or 
content came in 1990 with the implementation of the RBRVS...and 
the Physician Payment Review Commission came forward with E & M 
codes based on time.  Organized medicine led by CPT and the AMA 
said we don't think that is appropriate.  We think that 
physicians should be paid for the work and the expertise and what 
goes into providing care for a patient and that's what came out 
is that the codes are based on content of work, not time and so 
that's a debate that occurred 8 or 9 years ago.

Dr. Harris:

I can't give the details of what our budget is for education 
and I am just learning about the history of Medicare carriers and 
central office and their relationships.... The letter from Nancy-
Ann Min DeParle indicates that basically she wants to have me 
report back to her the projected schedule for testing, refinement 
and physician education. I will make a point that this is a 
priority, that we have a responsibility. I can't tell you today 
what the result will be, but I will make my pitch and hope that 
we can get the resources available. We are strapped for a lot of 
activities right now, but this one should be one of the 
priorities.

Dr. Nancy Dickey:

Well I wanted to be sure we don't let Dr. Berenson and HCFA 
off the hook for education.  The AMA has also committed to work 
with the States and specialties to assure that we make every 
effort to use out-reach to physicians and provide additional 
education.  I don't want HCFA to think that that is in place of 
their education but I do want physicians to know that we have 
made a real commitment to assure that we can partner together and 
be sure that it's not for lack of opportunity that physicians are 
not educated.  

Dr. Randolph Smoak:

Thank you very much. We have come to the end of our hour and 
what I am going to ask you to do is I am not going to take notes 
on who is there but we are going to have a presentation by Dr. 
Henley who will give us some insight into what is being proposed 
so far.  When we come back we will have 30 minutes for further 
discussion.  So I ask that those of at the microphone remain in 
that order and I will leave it up to you to keep that straight so 
we come back for 30 minutes worth of discussion then.

Dr. Percy Wootton:

First, I would like to [thank the doctor from] Virginia, and 
I would like to answer the [doctor from] South Dakota.  I look 
forward to visiting South Dakota in June for the annual meeting, 
and in the Virginia tradition I bet I will find some cousins, 
maybe not neighbors but I bet I'll find cousins.  Again, I would 
like to thank everyone for your participation this morning and 
your remarks.  I would also like to remind my friends here in 
this audience that as your President this year I tried to make 
myself available and I have had call-ins with 800 numbers.  I 
will continue to do that and we will have some more between now 
and the time that I give up this office in June.  So I am 
available, I want to hear your remarks, I would like to have you 
call in, I would like to have your faxes.  
At this time it is my pleasure to introduce our next 
speaker, Dr. Douglas Henley.  Dr. Henley is a family physician 
from...North Carolina and a member of the executive committee of 
the CPT editorial committee.  Prior to these duties, Dr. Henley 
served on the CPT advisory committee.  This morning Dr. Henley 
will review some of the concerns and comments outlined in the 
over a 150 responses that the AMA had received on the revised 
guidelines from the federation members across the country.  Dr. 
Henley will also present a new framework that was developed in 
response to these comments to propose changes in the current 
guidelines.  I know that you all are eager to hear Dr. Henley's 
comments.  It is my pleasure to present him to you, Dr. 
Henley..........

Dr. Henley:


I am very excited to present this presentation to you today 
about the new framework.  I am a devotee Andy Griffith show, and 
when Barney Fife gets really excited you can tell because he 
clears his throat, he pulls his collar and he begins to kind of 
beat on his holster.  You can tell when I am excited because my 
ears turn red. I've got a little bit of technology so that makes 
me an expert.  I am very excited because I live in North Carolina 
so I am a neighbor both to Dr. Wootton and to Dr. Smoak and I 
actually understand how they talk.  So if you can't understand me 
they can be my interpreter.  I am also excited because Dr. Harris 
informed me this morning that as a family physician for 18 years 
I have no complicated patients, I am very happy to hear that.  
Now, during by presentation I will frequently refer to "the work 
group recommends this."  Well, let me tell you who the work group 
is.  Dr. Harris appointed this work group that consisted of two 
members of the panel, myself and Dr. Andy Hedberg here from 
Chicago and Dr. Bill Phelps, who used to be the chair of the CPT 
panel and also contained appropriate staff members from the AMA, 
particularly Celeste Kirshner and Barry Eisenberg and also 
members from HCFA, most notably Bart McCann and Jean Harris and 
others.  We met approximately a month ago and addressed the 
comments that we had received to date from the specialty 
societies and State medical associations, individual physicians, 
group practices and our recommendations that we are proposing to 
you today are just that.  They are proposed recommendations 
although I think it is safe to say that at least what we are 
proposing today the Health Care Financing Administration seems to 
be in complete agreement although there are some areas where we 
still have questions for you to answer in the work groups today. 
Now my presentation will basically be in four parts.  First 
I will quickly review a bit about the E & M codes and their 
development, a discussion about the original objectives of the 
'95 and '97 guidelines. Then we will talk about a summary of the 
general comments about the guidelines that we received and then 
specifically go in based upon history, exam, and medical 
decision-making, look at proposed solutions and what the work 
group recommendations are for you today.  
This is the technology.

  	Now you will all remember that in the late 1980s the AMA 
took the lead in developing the new E & M codes and did that 
through the process of the CPT editorial panel.  Now that 
development did not occur in a vacuum.  There was tremendous 
input from the Federation, from PPRC, from the RBRVS study team, 
and many others to develop the E & M codes that we have now had 
for the past six years.  It is important again to emphasize that 
the new codes were tied not to time but to physician work, namely 
the extent of history, the extent of the examination, and 
complexity of medical decision-making.  And as others have 
already said, time was discussed but was dismissed as not the 
appropriate way that we encounter our patients but rather what we 
do with them in the context of that encounter not based upon 
time.  Now as has already been said, the E & M codes before their 
implementation were extensively pilot tested and were shown to be 
used reliably across specialties and in different areas of the 
country.  Extensive education about their use occurred prior to 
their implementation.  Again, as we heard here today, there is 
the need to do the same for the documentation guidelines in their 
final format.  
Now as a result of our experience with the E & M codes that 
we have had since 1992, we can say several things but most 
important of which is that these codes, the codes that we have 
now and have had for the past six years, are being utilized 
uniformly across specialties in different geographic locations.  
Those of you who remember the old CPT codes, the 900XX series, 
the intermediate, extended, limited, etc., we found, at least 
through the RBRVS process, that there was often as much as a 
four-fold difference in work when physicians used the same code 
across different specialties.  That is no longer the case with 
the current E & M codes and they are important when they account 
at least in 1996 for 40% of all Medicare billings relative to E & 
M and all physicians services....
Now, coming to the 1995 guidelines, what should they do or 
how should they be presented to us, what should they accomplish? 
Well these are my favorite three bullets, everybody loves 
bullets, especially the middle bullet.  First of all, the 
guidelines need to be consistent with the E & M codes that we 
have been working with and in fact they need to help us define 
what some of those definitions are in CPT.  What is the 
difference between an expanded problem-focused exam and a 
detailed exam, what is the difference between a comprehensive and 
a detailed history.  I think the guidelines do that, we just need 
to make it more adequate and appropriate for clinical practice. 
Now the second bullet before you I would suggest is where we 
royally screwed up.  The guidelines have not been widely accepted 
by physicians and they do not minimize the effect upon medical 
record keeping.  We hear you, we understand that.  Having been in 
practice for .... It is important to note, in my view and this is 
a personal view, that for a physician who wishes to code at the 
higher levels of service the days of minimal documentation in a 
medical record simply will no longer exist. Regardless of how 
radical the revisions are that we finally agree upon regarding 
documentation guidelines well beyond perhaps what we present to 
you today, if you wish to code at the higher levels, if you wish 
to code at the higher levels, you will simply have to document 
more in order to demonstrate it at least in a review process that 
there was more physician work that occurred.  
Now this is a distribution pattern based upon 1996 data of 
the office visit codes and again at least at the higher levels of 
service, I think this slide demonstrates that the implementation 
of the documentation guidelines even in the revised format, 
impacts upon a relatively small number or small percentage of 
total office visits.  

This corner will test your labyrinthine system very well, I 
don't know if that is an element in the guidelines, but it needs 
to be.  But you will see for example for established patients 
there are very little visits that occur in the 99215 level and 
not so many also at the 214 level, and for the hospital visits, 
there are some similar data although somewhat different than in 
the practice setting or the outpatient setting.  So the 
guidelines mainly come into play in a general sort of statement 
at the higher levels of visit services and at least to the extent 
that physicians would continue to maintain their current coding 
practices that would not affect you generally unless you code at 
the higher levels.  
Now the 1997 guidelines went beyond the '95 guidelines 
mainly in the sense not in terms of history and medical decision-
making, that pretty much stayed the same, there are a few 
changes, but mainly developed changes in the exams which we have 
already discussed in detail.  And that related to the definitions 
of the general multi-system exam and some changes in the 
documentation guidelines and the development of ten single organ 
system exams which we have heard about as well in terms of      
the need for those exams because people were being downcoded.  
Let me also say at this point, because I think it is an important 
point to remember, that if you are performing E & M services in 
the context of a global procedure, the global time of a 
procedure, a 10-day global, a 90-day global, etc.  When you 
perform E & M services in that global period, the guidelines do 
not apply for those E & M services.  Why?  Because you don't 
submit a separate claim for those E & M services. That is the 
important issue that I think everyone needs to know, particularly 
those who do a lot of procedures that involve a global period.  
Now, about the comments, well we received comments from a 
lot of you.  Some people would say that you only heard from 35 
specialty societies and 10 medical associations but you didn't 
really get a lot of responses but I would suggest to you that 
represents thousands and thousands of physicians who were phoning 
their comments through the parent organizations at the State and 
specialty society levels.  Again, comments from at least a 100 
individual physicians.  There were many consistent things that we 
heard from everyone.  The guidelines being too complex, too 
burdensome, impractical for daily use, all of the comments that 
we heard at the microphone earlier this morning.  We agree with 
you.  It is very important that we agree with that, they need to 
be changed, we understand that, they need to be applicable to 
daily practice and not burdensome on medical record keeping  
Therein lies some suggested principles that were also congruent 
throughout our review of the comments that we received and that 
is that the medical record should not be dictated by the 
guidelines and what is contained in the medical record should be 
based upon the examining physician in the context of the patient 
visit and the presenting symptoms and the history and the exam 
and the medical decision-making of that visit.  The guidelines 
should not determine that content, it should be the medical 
record in the physician/patient relationship.  Your work group 
agrees with that and hopefully the recommendations that we have 
for you will show testimony to that belief and that 
understanding.  

Now we received some other general comments that don't fit 
into the categories of history and so forth and I wanted just to 
point some of those out and give you some examples of those.  
First, a lot of the commenters, a fair number, suggested that we 
need to go back to the codes themselves and collapse from five 
levels down to three, then one to four whatever, and we will 
address that in just a moment.  Perhaps we do need to find the 
levels of service simply by medical decision-making, simply by 
time and perhaps the most important issue which I will address 
again right now is the apply the 2-by-3 rule for determining the 
type of appropriate documentation and therefore the type of visit 
that you have.  For example, as you know, for new patients you 
have to document all three in terms of history, exam and medical 
decision-making whereas for established patients it's two out of 
three.  Well maybe a 2-by-3 rule would be appropriate to address 
the concerns that many of you had this morning about emphasizing 
medical decision-making to a greater extent.   That would take 
less emphasis for example off history or off examination in terms 
of meeting the higher levels of visits.  That may be.  The work 
group did not have a recommendation on that specific issue, 
however, it that is the consensus of this group that we need to 
move forward on that you have to understand one very important 
point and that is all of the codes that are in the book now for 
new patient visits which include all of the initial hospital care 
visits, etc., those codes that require all three components, they 
will have to be revalued under the RUC process if in fact we go 
to a 2-by-3 rule because the original Hsaio data showed a 
difference in work between a new patient and an established 
patient.  That's why we have the three-out-of-three rule for new 
patients and the two-out-of-three rule for established patients. 
 So if we move that way, fine, it does make the process simpler 
and it does perhaps place more emphasis on medical decision-
making but those codes will have to be revalued in terms of their 
physician work values and ultimately their payment.  

Now lets look however now if we decide to do some of the 
other aspects and come back in a moment to the collapsing the 
codes that I mentioned earlier, lets say that we do that.  Well 
this is 1998 HCFA data on collapsing the established office visit 
patients from five levels down to three.  Very apparent that the 
lowest level goes up, middle level stays the same, highest level 
goes down.  Now how does that impact on physician income?  Just 
looking at four different specialties going to three codes and 
going to one code.  The swings are fairly dramatic I would say.  
There would be a lot of winners and a lot of losers in this type 
of scenario, particularly at the one code level, which obviously 
does not distinguish at all physician worth.  Your work group did 
not suggest that we do that.  Now let's look specifically at the 
three key components of the coding process, history, exam and 
medical decision-making.  First history and look at the solutions 
that you have suggested to us in the comment period.  First is to 
have less emphasis on the acuity symptoms of the history of 
present illness.  You know now that the kind of artificial 
criteria of location, quality, intensity, timing, primarily seems 
to refer or implies a reference to a patient in discomfort or a 
patient in pain and that's not always clinically appropriate so 
we need to place less emphasis on that somehow.   We need to 
change the definition of an extended history or present illness 
to include a patient who presents with multiple acute problems, 
not just multiple chronic or inactive problems as it is now.  We 
need to change the definition of a complete review of systems to 
five systems or more, not ten systems as it is now.  We need to 
place less emphasis in itself on review of systems and past 
family and social history.  Other solutions simply said let's 
eliminate the ROS or perhaps apply that specifically to certain 
specialties with certain new criteria.  Again, this is an issue 
that we will address changing the definition of a complete past 
family and social history to one that is a two-out-of-three rule 
rather than a three-out-of-three rule and then another comment 
was that we go much like in the examination we do a history let's 
take off the total number of elements that you document whether 
it be from history of present illness or the ROS or the past 
family or social history took off the total number of elements 
that you document historical data points if you will and that 
would determine your level of history and not the two-out-of-
three rule or the three-out-of-three rule that we have now.  

Work group recommendations:  Well one is not here that I 
think it is very important that is in your packet and that is if 
you encounter a patient that from whom you cannot get a history 
and you document the reasons why that history is not available 
(the patient is comatose, a trauma patient, whatever the case may 
be, a language barrier, whatever), that history will be deemed 
automatically to be comprehensive.  That is very important, a 
frequent clinical encounter for lots of us for different reasons 
that is not on a slide but it is part of our recommendations.  It 
is in your packet.  Secondly, we will define the history of 
present illness based upon, we will get rid of the artificial 
criteria of location, duration, time and intensity and simply 
base that upon the number of historical data points that you 
document, and another slide will indicate that shortly.  We will 
define a complete past family and social history with a two-out- 
of-three rule for all categories, not just three-out-of-three and 
we will try to de-emphasize at least one part of the history, of 
the elements of the history, by requiring that only two of three 
be utilized in determining the type of history that I mentioned 
earlier.  Now this is the table of history that we have now and 
again it is a three-out-of-three rule, we will be going to a two-
out-of-three rule and hopefully that will address the issue at 
least for a history in terms of what happens if you omit or don't 
perform review of systems or if you forget or don't make 
reference to past family and social history.  There will be a 
two-out-of-three rule now versus a three-out-of-three rule.  This 
fills the history of present illness and how do you determine 
that.  Again, I would suggest to you that the patient that comes 
in with polyuria, polydipsia and polyphagia and a ten-pound 
weight loss, that is four historical data-points for a patient 
presenting with diabetes mellitus.  It applies very little to 
issues of location, quality, and intensity but it has a lot to do 
with associated signs and symptoms.  One of the categories on the 
right-hand side of the slide will no longer be required as they 
will simply be examples and if you document those four historical 
data points that I just mentioned or if the patient comes in and 
says I think I have got diabetes and you document that they are 
all negative, then you have done an extended history of present 
illness by documenting those four elements.    
We will also change the definition of extended HPI to 
include reference to a patient who has at least three acute 
problems, not just those that are chronic or inactive.  
Now let's focus on the solutions for the exam part of the 
equation.  Many of you suggested that we stay the same, the 9 X 2 
rule that we have now, others suggested 18 elements from five 
systems, 18 elements from 8 systems, 18 elements total from 
anywhere that someone alluded to earlier.  I go back to the old 
guidelines, allow examination of certain areas of the body such 
as the hand and then eliminate the single system exam in their 
entirety.  We received a lot of feedback from you.  A lot of 
commentary that there is clearly an artificial distinction and 
one is very complicated between the general multi-system exam and 
the single system exam, too complex, too unwieldly, it needs to 
be changed.  So what are we going to do, work group 
recommendations.  Well the first, and I think the most important, 
is for the examination.  As Dr. Harris alluded to earlier, we are 
eliminating what I refer to as the presumption rule for the 
comprehensive examination.  Under all of the exams that we have 
now, the 10 single specialty exams or single system exams and the 
GMS exam it is presumed that you do all of the elements in that 
exam at the comprehensive level but you only document at least 
18.  That is not clinically appropriate, it leads to lots of 
questions from a medical legal standpoint, it has to be 
eliminated and it has been.  
Other work group recommendations:  Well, a big step is we 
are going to effectively eliminate the general multi-system exam 
and the single system exams and we are going to create a large 
table of exam elements, which is in your packet.  It may be 150 
elements, it may end up being 250 elements, we don't know but all 
of the elements of the GMS exam and all of the elements of the 
current ten single organ system exams will be on that list.  
Other elements will be added such as chest clear, abdomen benign, 
HEENT negative, other pediatric exam points that we have heard 
about, those from the emergency physicians that we have heard 
about, so the element in this will be very extensive and to 
document your exam and determine the number of elements that 
constitute that exam, you will simply pick and choose from any of 
the elements on that table to perform a clinically appropriate 
exam on the patient before you that day and you only document 
what you do, and no presumptions (applause).  

Now, the work group is also recommending for your 
consideration, because we don't have a solution right now, but 
when you have the work group on examination this afternoon and 
conversation in the hallways, we need to hear from you about the 
number of exam elements needed to constitute the different levels 
of exams.  We know now on the right-hand column is the current 
rule, the 1,6,12,18 rule.  The work group had general consensus, 
I think it is fair to say, that we might need to move to the 
middle column, a 1,5,10,15 rule.  Some have suggested a 1,4,8,12 
rule.  We need to hear your feedback from out there in terms of 
whether it should be changed at all and if so to which level in 
terms of these columns before you.  
Now, medical decision-making which has received a lot of 
attention today, clearly the comments suggested that it needs to 
be, at least the documentation needs to be similar, it needs to 
be more straightforward, it needs to be more succinct, it was too 
confusing the way it was.  And this is the way it was and it is 
too complex, I think the most telling comment that I read from 
reviewing many of the comments was from an internist who said 
that coding decision-making would supersede medical decision-
making.  And that's true.  And that's why it's got to change.  
This is the first table that you see in the 1997 guidelines 
relative to medical decision-making and we have a two-out-of-
three rule, but it goes to next to the right-hand column, which 
is the table of risk, then you have to go to an entirely 
different table, which is a one-out-of-three rule, then you go 
back to the other table to figure it out.  Well that just doesn't 
work.  
So here is what we are going to do.  At least up to this 
point, relative to medical decision-making and we need to your 
input regarding these changes and others.  First or all, we are 
going to reduce the levels from four to three, everything that 
you could below medically complex decision-making will go down 
into straightforward so we will have three levels straight 
forward, moderate and high.  There will be a new table of medical 
decision-making and this will be a single table much like the 
table of risk that most people used to refer to as being fairly 
easily interpretable with three columns that deal with the number 
of diagnoses, the amount of data to be reviewed, and then the 
risk and management options.  To determine your level of medical 
decision-making there will be a one-out-of-three rule, not two-
out-of-three, not three-out-of-three, but one-out-of-three.  So 
the highest level whichever column you want to look in that 
applied to your patient that will determine the level of medical 
decision-making and for each specialty should they so choose, 
they can develop, based upon this framework, an appropriate table 
of medical decision-making for their members given certain 
parameters that the CPT panel will most likely develop so that 
there is some equivalency from one table to the other in terms of 
specialty societies who wish to develop different table other 
than what may be in the guidelines before you.  

Examples:  This is an example of the new table simply as it 
applies to some parts of straightforward medical decision-making. 
 And you can see very easily if you prescribe the patient bed 
rest on the right-hand column at the bottom that is clearly 
straightforward medical decision-making, one-out-of-three.  You 
have got a patient that you are managing on three or more 
prescription drugs, that's moderately complex medical decision-
making if you document that somewhere in the medical record, it 
may simply be a reference medicines are the same as in the front 
of the chart if you have a medication list in the front, if 
that's three or more prescriptions that you have got the patient 
on, that's moderately complex medical decision-making by its 
nature.  And finally at the highest level if the patient presents 
to your office or the emergency room with an acute change in 
mental status, that's automatically high medically complex 
medical decision-making, one-out-of-three rule.  
Now where do we go from here?  We need to hear from you 
today in terms of these suggested changes and revisions of the 
guidelines.  We need to refer the revision that will be 
considered by the panel at its May meeting that will offer an 
opportunity between May and our August meeting to hear from you 
again regarding from throughout the federation about your 
suggestions for continuing change and revisions.  We anticipate 
that the pilot testing will occur sometime in the fall and 
perhaps early next year, that has yet to be determined, and while 
at this point in time we have somewhat of an indefinite delay in 
the implementation of the guidelines, I would humbly suggest to 
my HCFA colleagues that the very earliest that we could do this 
and implement would probably be July 1, 1999, and perhaps more 
beyond that.  Thank you for your time and your consideration.

Dr. Smoak:  Thank you Dr. Henley for assuring us a way out of 
this current mess that we seem to be in.  I think we should thank 
the CPT work group as well as the panel for what they have done 
in developing all of this.
I think we are right on schedule and let me tell you the 
time frame we are working with now.  We will  go for the next 30 
minutes for some more questions and I hope you will focus 
particularly on the things you just heard Dr. Henley say because 
he has asked for your input and here is an opportunity, there 
will be opportunities later.  At 12:50, approximately 30 minutes 
from now, Dr. Reardon will make some remarks, at 1:00 we will 
break for lunch and he will give you the specifics of that, and 
then the break out session will begin at 1....

Speaker identification lost:

[This gets into a black box scenario}.  I would encourage 
the AMA to encourage HCFA at the fiscal intermediary level to 
help provide and have a better understanding of what it is they 
want and what type of information could better clarify.  And 
again I think what we just heard would be a great step in that 
direction but I would certainly encourage that to happen.  
The next point, again back to that review level.  I think 
some clarification for the medical committee of who is performing 
the medical reviews, what qualifications or training do these 
folks have in terms of performing their review, and I think a 
critical, critical piece, which again this helps, is to make this 
process as objective as possible because clearly the subjectivity 
and then the question of fraud and abuse and the portability act 
and the different clarifications about when you can and cannot be 
prosecuted again the objectivity I think is really the big big 
gist of what we want to see happen..thank you. 

Dr. Walt Roberts (?), Chairman of the South Carolina AMA 
Delegation:


Initially I hadn't planned to comment on anything other than 
what I previously said regarding E & M Codes but I heard the 
physician from Virginia and I heard Duane Cady from New York both 
comment about the threat the Department of Justice has been 
implying, and I'm sorry that Dr. Berenson and Mr. Vengrin have 
already left because I think that that's true, and I think that 
somewhere the Feds, the people at the federal level need to know 
that the DOJ people out in the field are not hearing this 
message. Randy, you remember that conference, we had a fellow 
that came from that Mr. Kusserow, used to be the IG, and someone 
from the Department of Justice came [and made] and what I thought 
were open threats against physicians who might be accused of 
fraud and abuse.  I think that needs to sort of filter down to 
the people out in the field as far as that is concerned.  
Now I want to preface my remarks with something that members 
of the AMA House of Delegates already know, I chair the reference 
committee in Dallas which structured the current AMA policy 
regarding fraud and abuse, I mean the E & M Guidelines, I should 
say fraud and abuse as well because I think they all stem from 
this.  Since that time we have kind of been carrying this burden 
rather heavily on my shoulders.  In Dallas I heard a lot of 
flagellation of HCFA by everyone present.  After I left Dallas, I 
heard a lot of flagellation [of the AMA] and specialty societies, 
who said we weren't working effectively with HCFA. This morning I 
hear some what I think are very untimely and really vitriolic 
attacks upon the AMA for having performed poorly on this job, 
something which I do not think is fair.  Having said all of this, 
South Carolina had its House of Delegates meeting which concluded 
yesterday and at that we adopted a position paper which suggested 
some of the same things we've already heard -- delay in 
implementation of the E & M Codes because of detrimental [effects 
on] on quality, access, and confidentiality [and the need] to 
work with other organizations in devising some effective methods 
of doing documentation and insuring safeguards against fraud and 
abuse, the same things you have heard this morning.  We did add a 
couple of things which have to do with providing funds through 
HCFA for appropriate education and actual dissemination of these. 
 	Now having said all of this, I think what Dr. Berenson said 
this morning answers these things and I for the first time want 
to speak on an encouraging note about what has happened here 
today already and what shows promise of encouraging things to 
happen in the future.  I believe that the AMA is working with 
HCFA now and is genuinely trying to do these things properly and 
given time to work on them and to come with some suitable 
guidelines.  I am encouraged with all I have heard this morning. 
 I compliment my own organization to which I belong and which I 
love on the work that is accomplished this morning.  

I have one question for Dr. Berenson who is not here, I will 
direct it to Dr. Reardon now.  How soon can we let the physicians 
who are out in the field know that we have achieved a delay, 
which sounds to be an indefinite delay to me in implementation 
and the other part of it should be to let the people out there 
know, the physicians out there know, that we are working 
diligently and hopefully successfully to appropriately design 
some E & M codes which can be properly used and properly 
implemented and properly serve the purpose for which the are 
designed - thank you.

Dr. Reardon:  I think we can let that information out immediately 
[about the delay and] that we are working with HCFA to refine, 
modify, and significantly change these documentation guidelines 
so they are appropriate for medical use....

Dr. Nancy Dickey: We will share that letter.  It's supposed to be 
out here at registration at lunchtime, which is where all those 
quotes came from.  I have an addendum to that I think because all 
of us were a bit caught unaware when Jan 1 rolled around and no 
one was ready for the new guidelines to come into effect.  It is 
imperative that leaders take the message back home that the delay 
in the 1997 guidelines does not delay that fact that HCFA is 
doing audits and that you have to choose between the old 
guidelines and the 1997 guidelines, whichever set you believe are 
easier or best for you and your patient group and that doctors 
need to follow these issues extraordinarily carefully because 
while we have what appears to be an indefinite delay, they will 
go into effect at some point and if we all go back to sleep until 
that next implementation date, we won't be any better off than we 
were January 1 of 1998 so it is important that as leaders we 
carry that message back and each of us take some part in the wake 
up call.

Dr. Troy Tippett, American Association of Neurological Surgeons:


I am a neurosurgeon from Florida and here representing the 
American Association of Neurological Surgeons.  Before I get 
started I have been asked to make a public service announcement 
on behalf of HCFA. It is not true that they are only half 
interested in what you have to say just because Dr. Berenson left 
halfway through this afternoon. So they have asked just to be 
sure that you all know he is really more than half interested. I 
am sorry that he left because I particularly brought to light 
when he said "MRI" -- that kind of brings a light to the eyes of 
a neurosurgeon today that that shouldn't be a big medical 
decision-making process.  It came to my mind that all of the time 
I spend for example with a patient who comes in with a cervical 
disc and a CT scan and we really can't tell from the poor quality 
of the CT scan whether they have a ruptured disc and I spend a 
great deal of time examining the patient and then I spend an 
indeterminate amount of time looking at the x-ray with the 
patient, explaining to them and the family why they don't need to 
have surgery yet, I need to do an MRI.  I guess Dr. Berenson 
tells me that that's not a real critical decision-making process 
and I think once again we are getting away from that quality of 
care issue and another big point that we in neurosurgery would 
like to make and that is that we spend a great deal of time 
examining patients and then we spend sometimes even more time in 
looking at that x-ray with the patient standing right there with 
their family and at least have again as much time as we spent 
examining the patient yet there is no mechanism right now to code 
that appropriately.  We need to put the system together so that 
it will work well for all of use and improve the quality of 
patient care.  We do remain concerned about the proposed system 
in which a medical student can always do the level five 
examination and yet not know what they have when they finish 
doing the exam.  We really think the crux of the issue is that 
there is no code for the art of medicine.  Thank you.

Dr. Gary Dennis, Medical Society of the District of Columbia:

[I am also representing] the National Medical Association 
and am also a member of the Practicing Physicians Advisory 
Council of HCFA and also a neighbor of Dr. Wootton.  But first of 
all I would like to congratulate the AMA and HCFA for coming 
together on this issue.  This I think should be a wake up call 
for all of us in that the process that took place prior to this 
was one that failed, and in the future we need a different 
process. This is obviously part of it. .... But we are not 
experts on implementing guidelines which means we need to do some 
more work as a group so that the next time around which could be 
six months or twelve months from now we are not in the same 
dilemma. So I hope that we put some effort into that.  In 
addition, though, I am sorry that all of those individuals that 
we need to talk to have left.  I see [one] is still here so maybe 
he can take this message back.  
One of the problems that I see with the carriers and the 
PROs doing the review, the clinical reviews on these audits, is 
that they don't necessarily have physicians involved in all of 
those reviews.  The reason why I know this is because I do a lot 
of reviews for them and they certainly didn't involve me in 
anything regarding this.  So I think that we should be very sure 
that physicians are involved in those reviews in addition to the 
nurse, utilization review nurses if they are going to have these 
contracts, and there's some budget that HCFA puts in the PRO's 
budget, and in addition, the whole recommendation process that 
has come out of today's meeting seems to be superior...This is 
exactly everything that we have been looking for to make it a 
simple process which has consensus, it has been field tested and 
there is significant education.  Under education we also need to 
have some budget and that budget should come from HCFA to the 
carriers and whoever else is going to be involved in it.  Now of 
course it's also our responsibility to participate but if we are 
going to be held accountable through the carriers, PROs and HCFA, 
there should be some money in their budget to make sure that we 
know what we are responsible for.  In addition.....okay one other 
statement, this is a good opportunity to also ask possibly... to 
fund some research to look at specifics on health services 
research to look specifically at what is considered by physicians 
to be important in medical decision-making.  

Dr. Jack Beller, Oklahoma State Medical Association:


I am a practicing orthopaedic surgeon from Oklahoma and now 
today I am representing Oklahoma State Medical Association, which 
completed its House of Delegates deliberation yesterday and as an 
aside we thank Dr. Dickey for being present at our deliberations. 
 The members of the Oklahoma State Medical Association recognize 
the need for the accuracy, reliability, and completeness of a 
patient's medical record, which we have come to call E & M 
Documentation but we also recognize the unreasonableness of the 
threat of the charge of fraud, imposition of fines or imposition 
of other penalties or felonies based on a difference of opinion 
in the interpretation of these guidelines.  We also understand 
that the medical record is a confidential instrument used to 
record a patient's care and his response to care. It was never 
designed for nor intended to be used for a justification for 
payment.  
At our meeting completing yesterday, the resolution which 
unanimously passed that the Oklahoma State Medical Association 
supports the following statements:  The proposed AMA Evaluation 
and Management Guidelines are intrusive into a physician's 
practice of medicine and detract from his or her ability to 
provide quality care to their patients.  These guidelines have 
been demonstrated to do nothing to improve the quality of care of 
the patient.  The implementation of these proposals are 
burdensome to the physician by decreasing patient encounter time 
and decreasing the patient/doctor rapport.  Because of the 
onerous nature of these mandated requirements, physician must 
decrease their patient load thereby limiting access to health 
care.  The medical record is a confidential physician tool used 
to chronicle the medical history, physical and mental status of a 
patient and was not designed nor was it ever intended to be used 
to determine physician reimbursement.  
The last presentation about simplification of these 
guidelines we believe is a step in the right direction but it is 
still too complex.  We discussed education -- education about the 
guidelines is necessary but with this level of complexity, 
education is still very difficult or next to impossible.  

Dr. Smoak: Thank you...I don't mean to admonish anyone but I 
think we have heard some of the same comments in a different 
variety of ways so if you have some specifics related to the last 
presentation, I think that would be the most beneficial use of 
our time which is only about 15 minutes left.  

Dr. Blair Filler, Academy of Orthopaedic Surgeons:


The problem that we have been talking about procedure at the 
present time but haven't talked about the hammer, and the hammer 
is the Kassebaum-Kennedy Bill of 1996.  It specifically states 
that you must show a pattern of behavior of either fraud and 
abuse or upcoding or miscoding [and you knew or should have known 
about the miscoding] And there's a specific phrase that states in 
there that no intent to defraud is required for you to be looked 
into. We've been reassured this morning that they're not going to 
follow this rule. Where is that documented right now as far as 
HCFA is concerned and the Inspector General is concerned? So why 
doesn't the AMA work with this like they work with the rest of 
the fraud and abuse area having to do with reckless disregard 
that makes the attorney will come to your office or the FBI to 
come to your office right now to prove that your intent is to be 
negligent, not that you made a mistake.  That will get rid of the 
hammer.  Certainly we talked about now the reassurance from them 
that this applies to Medicare, but the Kassebaum-Kennedy bill    
applies to all insurance. How about the rest of those people? Are 
they going to go after them? Who is going to interpret this law? 
Who's going to go after them? What does a pattern mean?  Does 
that mean three miscodes or 20 miscodes...? [The way they look at 
this right now is that] 20 billion dollars was expended on fraud 
and abuse. However, I understand that the alternative would be 
because the doctor didn't sign the record or because he put his 
initials down or because it was not legible to the person. So is 
that fraud and abuse?  

Dr. Leonard Weiss, Medical Society of the State of New York:

I am also an orthopaedic surgeon, and that's kind of 
frightening, the last three speakers have been orthopedists.  I 
just wanted to say that in the documentation of medical decision-
making that it seems to me that there is a bias in the sense that 
if you are smarter and get the diagnosis quicker and know the 
treatment more surely that you should perhaps get paid less.  So 
I don't think we want a system that rewards less skill.  There 
seems to be a bias toward if you don't know exactly what you are 
doing and order a lot of tests and have the patient come back 
next time and then review them that you also can get paid more.  
That doesn't quite seem to be right either.  
The other thing that surprises me is that the people who 
devised this system didn't realize that it was totally unworkable 
before we got to this point. (Applause.) We got from the American 
Academy of Orthopaedic surgeons a five-page document on how to 
conduct a physical examination, history, and decision-making. I 
think that I am reasonably bright, and I was unable to comprehend 
it, and I realized it would take me longer to use their templates 
than it would to examine the patient.  There is also nothing in 
this that speaks about how long it takes to explain to a patient 
why he needs or doesn't need an operation, what his alternatives 
to treatment are, to teach him an exercise program for his back, 
I mean how do you call that complex or not complex?  If it was so 
easy to do, why wasn't it done by the physician who sent the 
patient to see you?  How do you explain to him that an 
inappropriately ordered MRI which shows some disk abnormalities 
which can be seen in 50% [of normal people] is not really 
significant? That may take even longer than examining or perhaps 
even longer than operating.  

The other question is that we wouldn't be here if there 
weren't five levels of care.  It is hard to tell the difference 
between large, not-so-large, medium, a little less than medium, 
and small.  I mean even the yogurt places don't have sizes like 
that. (Applause.)  The other thing is that I understand that Bill 
Gates is really happy about this and may financially support the 
AMA because he is getting ready a little hand-held computer that 
you hit with a light pen and out of it comes a three-page report 
for a sprained ankle.  So I think that there is a lot missing 
here, I am not sure that we have got the right idea again.

Dr. Sue Adelman, Michigan State Medical Society:

I'd like to comment in two areas though as a pediatric 
surgeon -- pediatrics I understand was not originally the thrust 
of a Medicare system.  I do notice in some of the new descriptors 
there is some reference made to pediatrics but still there is a 
disconnect between what we do and how we would have to document 
it.  If I see two- or three-pound babies I probably spend three 
or four minutes on the physical exam in many cases. But just the 
fact that that is a two- or three-pound baby means that something 
that is very complicated going on. I then spend a long time 
talking to the family and talking to the pediatrician, reviewing 
data and so forth.  And so under some circumstances it seems 
inappropriate to have a three-out-of-three standard when one or 
two of those elements are very complicated and the physical exam 
may not be complicated.  The same issue is true as a consultant. 
 If I come in as a consultant with pediatric surgical questions, 
the review of systems, the PFSH, the past history have already 
been done although I can give deference to it, I can give lip 
service to it and try and write all that stuff down, that is just 
mindless busy work.  Really what I mean as to do is make a 
decision whether this kid has a hernia, whether he needs to be 
fixed,...whether it should be done in-patient or should be done 
out-patient, under what circumstances, what is the anesthesia, 
whether you've got other risks, when to stop the oxygen, all 
those other considerations. That's where all the time is. So I 
think that we still have a little bit more work to do to try to 
solve this problem.  The needs of documentation as a consultant 
are different and the needs for documentation in pediatrics are 
still different.  Thank you.

Speaker not known:

God sent all of us to accomplish certain things in this 
life.  I am already behind and I believe that with these E & M 
Guidelines I'll never die.  Very specifically, I think if the 
attorney/client privilege which was alluded to, the 
accountant/client privilege which hasn't been alluded to, and any 
other profession which you and I deal with is not required to 
give information on the phone to provide back-up for billing 
other than in nonspecific terms, I do not see why we are to be 
subject to this type of billing.  Also it is very well understood 
that whatever happens with Medicare guidelines will eventually, 
very soon, very quickly be adopted by other insurance companies. 
 And these guidelines do not take into account the fact that if 
you decide to do an MRI scan many managed-care organizations 
would ask you to ask for approval and [there are many other 
hassle factors].

There is nothing wrong with compressing the codes (simple, 
complex, in the middle somewhere) but why should we remain 
married to the RBRVS codes?  Why should we have these five 
levels?  And then develop guidelines? When we create the monster, 
the monster is going to get hungry and want some food once in a 
while and this is exactly what we are saying.  Now think for a 
moment, you have got a patient who comes in, you examine him, you 
diagnose, you talk to him, you prescribe the prescription.  Then 
you make a bill.  Then you put a code, a CPT code, the diagnosis, 
the diagnosis code, then you sign the Medicare form....[Then] you 
still have to do the E & M guideline documentation, I think it's 
crazy, it is stupid, it's unreasonable, it's unfair.

Dr. Neil Busis, American Academy of Neurology:

I just wanted one clarification, then a follow-up question. 
 Are you in fact considering collapsing the five levels of E & M 
codes or not?  

Dr. Henley: At this time we are not.  

Dr. Busis:  And the follow-up question is this: I think there is 
a little circular reasoning. You said you know we are trying to 
model human behavior of physician/patient interaction by coming 
up with medical decision-making, history and physical which is 
something I think we just have to do from what HCFA says.  I am 
not sure it follows though that if you simplify the medical 
decision-making, you simplify the physical and history 
requirements, that it necessarily means that the E & M codes 
should be valued less than they are.  In other words, I think 
that most of us would agree that physician work in evaluating a 
new consult or an initial patient is greater than an established 
patient and if we accept that principle perhaps it could be said 
that these E & M codes changes are really going to be editorial 
changes only, all they are doing is modeling what should have 
been modeled in the first place rather than ratcheting everything 
down because I think that might have the unintended consequence 
by devaluating the cognitive service. [Then] once again you would 
end up basically having a lot of physicians ordering a lot of 
tests that aren't necessary, etc.

Dr. Henley: Well, my comments specifically address the issue of 
new versus established patients in the three-out-of-three rule 
versus the two out-of-three rule.  If you have a two-out-of-three 
rule only and therefore for a new patient you only have to 
perform and document one of the three issues i.e. history, exam, 
and medical decision-making, that's no different than it is for 
established patients.  Therefore, there is no distinction between 
those two levels when in fact those codes have been valued 
differently and the codes for the new patient visits or initial 
hospital visits have all been valued at a higher level, so I 
would think that that would raise some RUC implications in terms 
of whether the codes that require three-out-of-three should in 
fact be revalued. I don't think it's just going to be editorial.


Dr. Harris: We don't have the final say-so -- the RUC makes the 
recommendations, it doesn't have the final say-so, HCFA has the 
final say-so.

Dr. Henley: I agree with you, however, that simply because we 
make the guidelines more simple that that issue should not 
devalue the codes in and of themselves, but if we do change the 
way we approach between established and new patients, that may in 
fact change the value.  

Dr. Steve Levinson, M.D., Connecticut State Medical Society:

I'm also a member of the CAC[?] in Connecticut.  Two points 
regarding the so-called labeled hammer I think are very very 
critical at this point.  A recommendation from our meeting at the 
State Medical Society pertaining to this is that the Medicare 
carrier advises us that any review of coding, of E & M coding, 
goes through a section which is now called fraud and abuse.  
Whether it be fraud and abuse or not fraud and abuse, in fact the 
letter that comes to the physician and the title of the person 
from whom it comes says "I am from the Fraud and Abuse Section." 
 Now our recommendation is that either the title of that section 
be changed or the second section called the coding oversight or 
some other less onerous term be applied so that physicians do not 
feel that they are under the hammer that has been presented.
The second thought that I have is not from our society but 
is a response to some of the thoughts that we heard here this 
morning concerning the oversight.  We have heard that 
approximately 5 billion dollars of auditing shows inadequate 
coding and/or documentation.  That is a significant number of 
dollars.  We know that in Medicare 11% of the entire budget or 
approximately 22 to 23 billion is involved in E & M codes and E & 
M services, and that percentage is higher for the remaining 
portion of the health care system.  We have also been told that 
the auditing had been turned over to the carriers to do the 
auditing and we're relying on that audit.  Having talked with 
auditors, with carriers in approximately 10 States, I can advise 
that those 10 States feel that they have not been given 
additional funding to do these audits.  I think that it behooves 
the AMA working with HCFA to encourage that there are a lot of 
funds.  We have been told this morning that we have to find 
funds.  We are talking about 5 billion dollars in savings by 
proper coding, I would propose that those funds should be made 
available up front, [for] uniform training of the trainers and 
evaluation of the trainers, [and] we should be involved in that 
as well as HCFA.  That it not be left to the individual societies 
to go on their own with their random evaluations and just rely on 
that.  And then we also have to assure that the audit tools and 
the auditors being used by the Medicare carriers are in fact well 
trained, that they have the proper tools to be consistently 
objectively measure if they are going to be measuring and so that 
we can assure that we are all being treated fairly and equally 
and that there is reliability and that there are no hidden 
agendas or hidden rules being brought up by certain carriers that 
are alien to what has been accepted by AMA and HCFA.  Thank you.


Dr. Roger Williams, Montana Medical Association: 

I am proud to be a member of the ASIM and American Academy 
of Neurology. I want to emphasize that the devil in all of this 
is the graduated codes on which reimbursement is based.  I don't 
know who we are kidding.  We have already agreed that a 
physician's intelligence, training, and experience count for 
nothing in the Medicare system.  The actual cost of providing the 
services counts for nothing in the Medicare system.  The time 
involved in providing the service is minimized in the Medicare 
system.  As long as we cling to the graduated three to five 
codes, we are going to continue to fuel the situation we have got 
currently because there will always be the temptation, the 
incentive to tweak the system to improve reimbursement, which 
means that government will always be reacting to that by such 
things as the silly notion of quantifying our worth as a simple 
arithmetic formula, RBRVS, and the emergence of these...E & M 
Documentation Guidelines.  The documentation guidelines have 
provided the government with a way of defining what they call 
inappropriate reimbursement, which is interpreted by the press 
and the politicians to be waste, fraud and abuse.  Now we are 
going in a vicious circle in which we are all going to be ruining 
ourselves in the end so my preference would be to have the 
Medicare equivalent to a flat tax.  To have one code for a 
follow-up [visit]... or to have the option of a short form, to 
have someone like me say, "Just pay me what you think my services 
are worth and let me decide how many patients I can afford to 
see."

Dr. Smoak: Thank you very much.  Our time has expired for those 
of you who remain at microphones I regret that we have got to 
move on.  I would invite you to submit your written comments to 
use if you have something in addition you would like to ask.  You 
have had a long sit this morning and I think you deserve a lot of 
credit for having sat through this whole session.  For those of 
you who haven't signed for this afternoon's break-out sessions, 
please remember to do that....