Physician Certification for Medical Necessity

     "Physician Certification Statements," "Certificates of Medical Necessity"-whatever you call them, they are required for almost any non-emergent transport. I have voiced my frustrations with these forms in the past, most recently in the April issue of EMS Magazine in response to a letter to the editor asking about liability for false certifications where medical necessity is not actually met. In my response, I pointed out that the ambulance supplier is required by law to independently assess the patient, and it is the ambulance supplier who swears to medical necessity when he submits the bill. Therefore, generally speaking, the suppliers will be held liable for any "false" certification, not the doctor or nurse who signed the form. This barely scratches the surface of this sticky topic. In this column, I want to dig deeper into the problems that are inherent with this required form.

You vs. the Doc
     What happens when a doctor certifies medical necessity and your independent assessment is contrary to the doctor's conclusion? The potential legal liability for going against a doctor's order would be huge if, in fact, you denied the patient ambulance transport and something happened to him while traveling by other means. The offending ambulance company would be attacked by the plaintiff's lawyer for letting its EMT make the decision to oppose a doctor's medical order (the doctor might weigh in on that attack, as well). On the other hand, you cannot submit a bill for the patient based on the doctor's statement that the patient requires an ambulance if you know that is not true. What about having the patient sign an Advanced Beneficiary Notice (ABN) form? ABN forms are used when a service is not "reasonable and necessary," which does not apply to these transports, since the service may still be considered reasonable. That leaves you with either providing the service for free or getting the patient to agree to pay when his insurance denies the charges.

     I received an e-mail a short time back asking about the content of these forms, which is another problematic issue. Of course, there is no standard form. In fact, Medicare has specifically refused to create a standardized form. So, what should these forms say, and who should fill them out? I am not aware of any rule or policy that says the form cannot be filled out by someone other than the physician before they sign. Of course, nothing should be added after the signature, and therein lies another problem. If it is not filled out by the doctor (i.e., in one pen or handwriting), or printed out with all the information on it at one time (i.e., from your computer), it is difficult to ascertain whether the information was on the form before or after the signature.

     Also, since it is technically the doctor's statement, it is better to have it in his or her own words (as opposed to his reading someone else's conclusions and then ratifying them by his signature), and it will have more weight later on and, hopefully, be more medically sound if you can get the physician to give a specific reason why an ambulance is necessary versus any other type of transportation (that is the purpose of the form, after all), but this is where most of the forms fall short. They tend to be a recitation of the patient's history, or simply a statement that the patient could only travel by stretcher. But, you must show why the patient needed a stretcher and ambulance; therefore, merely stating a patient's medical history is usually not enough.

     The best course of action is to have a doctor fill out the form and, in his own words, state why this particular patient, for this time frame, cannot travel in a wheelchair van or by other means. Absent that, you can fill out the form and/or make a list of items the doctor can choose from to check off and then present it to the doctor to do the rest. However, this often leads to no information at all, other than a signature.

     At the end of the day, I have rarely reviewed a physician certification form that actually draws a significant, fact-based medical conclusion on a patient that helps support the justification for the trip, and in conducting responses to audits and overpayment assessments on behalf of my clients, I have seen thousands of them. These statements could be helpful if they were done right. In fact, I am in the process of arguing that these certificates, when obtained from a doctor prior to transport, can be relied on to support the transport, contrary to Medicare's current policies. As things stand now, while you are required to get these forms signed, you cannot rely on them to justify the need for transport. So, are they worth the paper they're written on? It doesn't seem so to me.

G. Christopher Kelly is an attorney practicing in Atlanta, GA. Chris focuses on federal laws and regulations as they relate to the healthcare industry and specifically to the ambulance industry. He also lectures and advises ambulance company clients across the U.S. Contact him at chris@emscltd.com.