Guest post: The denials war of attrition
by Howard Rodenberg, MD, MPH, CCDS
One of my ex-wives earned a master’s degree in rhetoric during our marriage. I’m still not exactly sure what that means, other than my chances of winning any kind of discussion went from slim to none. I was interested in her coursework, though, because I’ve always had an affection for a particularly effective speech. I’m the guy who stands in the shower and imagines the orations he would give if he were governor, pronouncements of firm moral stances or of pragmatic politics bound to offend everyone and ensure that I was a one-term wonder.
One of the most famous speeches of modern times is Winston Churchill’s World War II declaration to the British people:
“We shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender…”
Churchill was a brilliant guy, but he didn’t always understand the nature of the wars he chose to fight. His first military experience was in the Boer War, when the British army defeated an overmatched army of Afrikaners in what is present-day South Africa. The British had half a million troops; the Boers less than ninety thousand. It’s hard to learn much when you’re the undisputed bully on the block.
So, when World War I came about, Churchill is of the same mindset: that British forces can easily overcome any lesser force. In the context of 1915, that force was the Ottoman Empire. As First Lord of the Admiralty (our Secretary of the Navy), Churchill forcefully pushed for the invasion of Gallipoli Peninsula in Turkey. The invasion was a disaster, and nearly 250,000 British and allied troops were casualties before the force was withdrawn. Many of the troops sacrificed to this folly were from the Australia and New Zealand Army Corps (ANZACS). April 25, the day of the landings, is known down under as ANZAC Day.
Modern historians have reflected that in a way, Gallipoli was a win, though not in the way we usually understand it. There was no great conquest or knockout blow. But the Ottoman Empire also suffered a quarter of a million casualties, and the depletion of men and resources marshalled in the defensive effort hastened its end as a meaningful combatant. What Churchill and the rest of 1910’s Europe didn’t understand until well into the era of trench warfare is that conflict is often a war of attrition, one side vying with the other until one is finally worn down and concedes the field to the foe.
Which bring us to the conflict at hand, namely the Battle of Clinical Validation, the front-line action of the War of Denials. If you’re a regular reader of my blog posts, you know that I think clinical validation is horrible process. It’s death by a thousand cuts, private payers shaving a bit off this diagnosis, and then a bit off another, until finally what gets paid is a fraction of what actually occurs during patient care. But our solution is to continue to look for that knockout blow—that magic term, the internal process, the new software, the regulatory change that will make it all better. We don’t see the pieces as part of a whole.
I’d like to propose that we think about clinical validation and denials management in terms of a war of attrition. Doing so helps us to develop a comprehensive approach to fighting this good fight rather than overextending ourselves with slapdash efforts here and there. And I’d like to start with the advice of Sun Tzu, the Chinese general famous for his book The Art of War. He’s the one who tells us that before anything else, you must know your enemy.
What does our enemy want? The easy answer, of course, is money. Insurance companies are in business not to serve clients or members, but to make money. The way they do so is two-fold: charging premiums and denying services. But there’s a deeper way to look at this as well. Payers want to make money in the most efficient means possible, with the least expenditure of time or resources that might eat into the potential gains. And here is where we find our strategy in the war of attrition. We make their process increasingly inefficient as we force them to surmount a series of obstacles. It’s our version of trench warfare.
The first lines of defense are the internal strategies used to determine what gets coded and billed. The key to this is not only a clinical validation program, but also institutional definitions.
The need for clinical validation programs has been oft discussed in CDI circles, but not much press has been given to institutional definitions. These definitions, however, are the required core of any clinical validation or denials management work. Any chart review must be based on certain standards of assessment, and when clinical definitions are vague or controversial, an institutional definition for that condition provides all parties with clinical clarity and a consistent educational touchpoint. When charts are reviewed as part of a clinical validation process, institutional definitions can be used as a benchmark for comparing the documented diagnosis to peer standards, and to guide a clinical validation query process towards the specific information needed to fulfill the definition.
(I recognize that Coding Clinic has ruled that coding staff cannot make clinical judgements as to the validity of a specific diagnosis. I agree with this premise; coders and CDI specialists should not establish any particular criteria that supersede the judgement of the attending physician. Therefore, institutional definitions should be developed and approved as a product of the medical staff, reflecting peer values within a professional cohort.)
The error that some make is thinking their institutional definitions and clinical validation criteria should somehow conform to that of the payers. In this way, the reasoning goes, there will be less denials because we’ve already screened out what won’t get paid. But anyone who reads enough denial letters knows that payers are not consistent in their own internal definitions, let alone across the market. It is practically impossible to build your clinical validation efforts around a seemingly random standard. It also shows a lack of integrity, surrendering the clinical judgement of your medical staff to that of a faceless cubicle-dwelling flunky.
Your clinical validation process and your institutional definitions should reflect what your medical staff believes to be correct based on their clinical practice, the medical literature, and the standard of care, not on the chance of payment. If there’s a fight, it’s good to have the weight of your colleagues behind you.
There’s another piece to this strategy, and it’s what I might call (for lack of a better term) a “coding philosophy.” Even within an institutional definition, there are going to be gray areas. How much dyspnea is enough dyspnea to reflect acute respiratory failure? If a patient only stays two days, can they really be septic? What you do with these gray areas reflects your coding philosophy.
Let’s say that you have ten charts with a diagnosis of sepsis. Three of them are slam-dunks that clearly meet any sepsis criteria one might envision. Three of them are clearly not sepsis, but the clinician has used the diagnosis. Four are in the gray zone, where a fair argument can be made for or against the diagnosis.
What you do with these charts reflects your coding philosophy. An aggressive approach would send all ten charts for billing, relying on the principle that coders code what the doctor writes. It’s likely that at least three, if not more, of these claims will be denied. A conservative approach would be to send only those three ironclad records as sepsis claims. A middle ground would be to send the three ironclad records and the four in the gray zone, figuring you might get payment on two of the four in question.
I’m not advocating for one approach over another; these decisions are usually made far above our pay grades, as they involve not only issues of reimbursement but of compliance as well. But they do have a significant impact on denials management.
How do these first pieces come together? Remember that insurance companies want to make their money easily, and as such they don’t want to waste resources chasing institutions where there is little opportunity for gain. I apologize if it’s a misquote, but I recall Trey La Charité, MD, FACP, SFHM, CCS, CCDS, the CDI physician advisor at the University of Tennessee, noting that if an insurance company can’t find something to deny in more than one in seven charts, it’s not worth their while to pursue you. (One of our CDI staff who used to work for an audit company has confirmed this idea.)
So, the idea is to make yourself a hard target. The tighter your institutional definitions, the more comprehensive your clinical validation process, and the more conservative your coding philosophy, the less opportunities payers see to issue denials, and they are likely to move on to more fruitful targets.
Even if you’ve made it more difficult for the payers to find thigs to deny, deny they will. What then? The next line of defense is the appeal. If you’ve done a good job on the front end tightening up your claims to those you can defend, then you’re on firm ethical ground to pursue appeals to the end, as far as your contracts with the payers allow. Your appeal letters should be detailed and replete with references to supporting literature as well as your institutional definitions, not because anyone at the insurance company will be paying attention, but the authority of your arguments will matter in the endgame.
Why is the persistent appeal so important? It goes back to the idea that you’re making the payers life as inefficient as possible. Continuing the appeal process with case-specific, well-referenced arguments means they need to continue the process as well, taking time and attention from easier targets of opportunity. The idea is to be more trouble than it’s worth. And if it’s a scenario where partial or full payment has already been issued, prolonging the appeals process keeps the funds in your hands, even if only to build interest while awaiting final resolution.
As an aside, if you have a payer contract that allows peer-to-peer case resolutions with a medical director, that can work in your favor as long as you’re prepared for the horse-trading that goes with it. The medical director needs to deny the same way you need to appeal. Given this common interest, it’s quite possible for the appeals process to be a win-win. And it’s also true that every now and then, you’ll find that the denial makes sense. In that case, give in quickly. Conceding when it’s appropriate to do so takes one more task off your list, and gives you a track record of integrity for any future disputes.
Finally, you need an awareness of the endgame. The endgame of clinical validation may seem inevitable, as most states allow the insurance company to broadly dictate terms of payment within their provider contracts. (I’ve mentioned in a previous post that Coding Clinic not only reinforces the right of payers to do so, but also fails to ask insurance companies to hold themselves to same ethical standards as coders.) While I can’t speak for other states, my experience in Florida pursuing appeals finds that if appeals with the company are exhausted, the state will connect you to another third party who will make the final determination at the expense of the appellant. As the cost of the appeal may outweighs any possible return, there’s little incentive to fight.
But the end game actually goes beyond the chain of appeals. The endgame really happens when you’ve collected enough denials that there’s a significant amount of money on the table. Once that dollar value significantly exceeds the expected legal costs, your institution goes to court. At that point, the insurance company evaluates the “cost of defense.” It’s likely a better deal for the insurance company to settle up for an amount somewhere in the middle of the contested value rather than go to court, pay the attorneys, and risk a judgement for the full amount.
No matter how well you prepare, denials will continue to happen. Victories in this war do not come as conquest, but from attrition, wearing down the opposition so the costs of pursuing the conflict outweigh the will to do so. The ancient wisdom of Sun Tzu helps us to develop a comprehensive strategy to deal with the payers’ use of clinical validation.
Editor’s note: Rodenberg is the adult physician advisor for CDI at Baptist Health in Jacksonville, Florida. Contact him at howard.rodenberg@bmcjax.com or follow his personal blog at writingwithscissors.blogspot.com. Advice given is general. Readers should consult professional counsel for specific legal, ethical, clinical, or coding questions. Opinions expressed are that of the author and do not represent HCPro or ACDIS.