A pronounced fraud and abuse trend in recent years involves fabricated and often useless tests to diagnose the health of muscles and nerve cells that control them.
These tests can help diagnose radiculopathy and other nerve injuries in vehicle crash victims. Dishonest practitioners also can easily manipulate the tests, creating a gateway to expensive insurance scams. While medically helpful, these tests track with a larger national trend of extensive fraud in the diverse field of diagnostic tests. This is especially true for automobile and workers compensation.
The muscle and nerve tests have two parts that, combined, evaluate the peripheral nervous system for damage. First is the electromyography (EMG). A needle electrode is inserted into a muscle to record electrical activity at rest and with muscle contraction. Nerve conduction studies form the second part. During this portion, an electrical shock is applied over a nerve. The examiner measures the speed of conduction along the nerve, and size of the response.
Scams have proliferated in auto and workers compensation and, general health coverage. Among the reasons:
• Reimbursements are high for patients in automobile accidents;
• State laws allow almost any medical specialty practitioner, however unqualified, to legally perform testing within their jurisdiction;
• Insurers do little to assess the quality of tests submitted for payment;
• There is no guarantee an EMG study even was performed as documented on the report;
• Most patients studied have only minor injuries, with no significant ongoing neurologic problem. Yet a fraudulent EMG can easily “document” nerve damage and other significant “injuries;” and
• Tests after auto accidents (and staged crashes) often are done by complex fraud rings whose sole mission is to perform excessive treatment and testing for large insurance payouts.
Hard data on the full scope of schemes and stolen insurance money are hard to come by. Still, the broader fraud trends are apparent from my performing at least 800 EMGs a year for the last 30 years, plus extensive evidence from reviewing files of accident victims as a consultant for insurance companies and the Attorney General of New Jersey.
Growth of fraud and abuse
Fraud and abuse have dramatically expanded over the past 15 years. A robust market for fraudulent tests has emerged in auto insurance, workers compensation and general healthcare. High insurance reimbursement for testing and lack of quality controls within the field contribute greatly. Certain fee schedules such as automobile insurance PIP coverage can reimburse up to 5-8 times what Medicare pays for individual nerve-conduction studies.
EMG scams once were primarily relegated to the healthcare field. For example, 4,901 physicians had $139 million of questionable billing for Medicare electrodiagnostic tests in 2011. Physicians in the New York, Los Angeles and Houston areas had the highest total questionable billing for Medicare electrodiagnostic tests.
The emergence of managed care — combined with most health insurers and Medicare imposing tighter control of reimbursement — is choking off fraud in healthcare. Physicians instead have simply shifted playing fields. They can make extraordinary amounts of ill-deserved insurance money on relatively simple automobile injury cases.
“Everyone makes good insurance money from these tight referral networks.”
Attorneys and chiropractors, for example, often refer patients for inflated or unneeded EMG and nerve tests. The goal is to justify continued chiropractic treatment, increase patient charges for case-settlement purposes, or refer patients to pain doctors for injections. Everyone makes good insurance money from these tight referral networks.
Injury indications for EMG and nerve studies rarely are present in supposed automobile-accident victims. Patient symptoms often are embellished or fabricated in the treating doctor’s notes. Exam abnormalities are invented to justify testing patients who have minimal complaints and normal test results.
The explosion of fraud and abuse in EMGs is magnified by the lack of state regulations covering which specialty practitioners can perform the studies.
The respected American Association of Neuromuscular & Electrodiagnostic Medicine (AANEM) clearly defines appropriate training for EMG and nerve conduction studies. Yet state regulations generally allow any licensed MD or Doctor of Osteopathic to perform testing.
The rapid spread of nerve studies by physicians other than trained neurologists or physiatrists led to national changes in coding and reimbursement several years ago. Many physicians who are not specialists in neurology or physical medicine and rehabilitation are performing EMG and nerve tests — including Ob/Gyn doctors and anesthesiologists. They have little or no training. And not surprisingly, their EMG practices are centered around automobile-accident patients. Chiropractors are doing tests in several states as well.
Magnifying matters, auto insurers routinely reimburse claims with few concerns about the quality or accuracy of the studies. Fraud and abuse are further supported by fabricated results in report forms. When they are submitted with bills, insurers often easily reimburse with little scrutiny. Only in the past several years has a small number of auto insurance companies begun disallowing payment based on poor-quality studies using AANEM guidelines.
“Poorly performed EMG and nerve-conduction studies can lead to invasive tests ...”
Many physicians performing EMG and nerve studies also are aligned with organized fraud rings that over-treat real crash victims. Poorly performed EMG and nerve-conduction studies can lead to invasive tests such as epidural injections or unnecessary surgeries that can place the patient at risk of grave danger. Bogus EMGs were given as part of the largest no-fault scam in history, a $279-million looting of auto insurers in the New York City area.
EMG fraudsters use a variety of ruses to maximize their illegal profits.
Case studies (some names changed for confidentiality)
The volume of EMG tests done by “Dr. Messier” grew dramatically, the “Jones Insurance Company” noted. So the insurer sent several patient files to “Dr. Wilson” for outside review. Billings and the contents of all studies were identical. The same muscles were studied on the needle EMG, and the same nerves were studied on all patients. Identical data was seen in 95 cases for all parameters studied, further analysis of 100 claims revealed. “Dr. Messier” used an existing EMG/NCV database as a template, and simply duplicated the previously report. He only changed the names and dates on the report. When questioned, 10 patients said they received electrical shocks during the exam, though no needles were used.
Personal-injury attorney Joseph Haddad ran a complex automobile scheme in Connecticut. He controlled chiropractor Marc Kirshner, who owned a diagnostic testing company. Kirshner had employees do nerve conduction velocity tests whenever a patient’s symptoms could potentially require testing, even though he knew the test results would not change the course of treatment. Haddad and Kirshner had Dr. Francisco Carbone order the tests. They believed insurers would give doctor-ordered tests greater weight and increase the chances of payouts. Kirshner billed insurers $2,000 for each NCV test, and Haddad paid other chiros kickbacks for referring patients to Kirshner. Kirshner received 27 months in federal prison.
At least Messier completed a report. Similar abuses include:
Use of duplicate data
This can involve performing legitimate nerve conduction studies and reporting performance of an NCV with EMG. though needle EMG was not done ... or a needle was not inserted into the muscle ... or several muscles were studied but most muscles listed on the report form were not examined.
A good-quality needle EMG requires that a muscle be studied at rest and during muscle contraction. The physician inserts a needle into a muscle, and moves it in several directions with the muscle at rest. The patient then is asked to contract the muscle while the needle is inserted. Different types of disorders or injuries affect the pattern, during both insertional and voluntary activity. Unfortunately, it is impossible for insurers to determine from the report form if the physician actually performed the needle EMG study.
However, insurers increasingly require Examinations under Oath. Through detailed questioning, they are discovering that many high-volume medical providers consistently perform incomplete needle exams of muscle, do not examine all listed muscles, or do not examine voluntary activity despite what they report. Yet the physicians bill for fully completed tests.
Absentee test performing. A New Jersey physician claimed he performed the study and signed the report form, though did not perform the exam. He performed two studies simultaneously while 30 miles apart, his appointment book showed. A physician assistant introduced himself to the patient as the doctor while performing studies. The real physician generated reports several days later, allegedly claiming to insurers that he did the work.
Case study (names changed for confidentiality)
“Elite Insurance Company” grew concerned about “Dr. Gretzky’s” billing practices and volume. Investigators took photos of four middle-aged professionally dressed men who repeatedly entered and left the office several hours later. “Dr. Gretzky” never was seen entering or leaving an office, yet signed reports and billed insurers. Some 20 patients were shown photographs of the suspects, including “Gretzky.” All patients said someone in the group other than “Gretzky” performed their tests.
Combating fraud and abuse
Insurer approaches to the problem historically have been misdirected. Traditionally, peer-review systems on a single-case basis addressed issues of medical necessity plus fraud and abuse.
To launch a peer review, a vendor assigns one of its panel physicians to review a case. Medical necessity is the most-common reason. The peer review might determine the study was not medically necessary or performed poorly. Still, arbitration or another dispute-resolution process might later award the physician some insurance money.
“Despite a history of lax reviews, auto insurers are showing more success in disputing bogus claims ...”
Most dispute processes consider a test valid and medically necessary because the “treating physician knows best.”
I was involved in a case with a high-volume physician the insurance company suspected was misbehaving. I reviewed a large number of files and found an unusual pattern of duplicate data points. The physician routinely used the number “15” several thousand times for studies he clearly did not perform. Even so, 85 peer reviews went to arbitration, which found against the insurance company in all but five cases. This issue was black and white when I reviewed as few as 10 files side by side. Yet when individual cases were studied, the reviewing physician only assessed a limited perspective of this physician’s total practice. At $200 per peer review, the insurance company wasted $17,000 on a vendor for this case referral.
Despite a history of lax reviews, auto insurers are showing more success in disputing bogus claims due to three major factors:
Review groups of files. Many areas of concern in EMG fraud are apparent only when several report forms are evaluated side by side. Files must be investigated individually in some cases, such as arbitration. Reviewing an individual file often misses the fraud pattern. The peer-review system using the vendor middleman is a waste of resources against EMG fraud.
“A skillful insurer’s EUO, however, can help recreate the test specifics in detail.”
Deploy EUOs. A report form historically was considered an accurate record of services provided. However, that clearly is not true for many EMGs involving automobile-accident patients. Unfortunately, the EMG report form is not as reliable as video documentation or a fingerprint. Thus, a dishonest or untrained physician can submit EMG report forms without performing a study, or by doing an incomplete exam. A skillful insurer’s EUO, however, can help recreate the test specifics in detail. The findings often reveal information that supports fraud charges.
Use credentialed providers. Unfortunately for many insurers, patients can choose practitioners they prefer, including unqualified or dishonest ones. Where permitted, however, insurers directing patients to qualified physicians’ results in higher-quality and more-accurate test results. I attested to the success of a credentialed network in a presentation at an AANEM conference several years ago with Dr. Adam Seidner, global medical director of Travelers Insurance. We proved that a Quality Review of EMG reports by uncredentialled providers revealed an unacceptable rate of more than 60 percent.
The depth of EMG fraud and abuse was hidden from most professional organizations and insurance companies in the U.S. until recently. The complexity of EMG/NCV testing and unique billing seemed an overwhelming and complex area to investigate. The total cost of testing also was a small percentage of total claims for most large insurance companies — another reason for limited attention.
However, insurers are learning more about EMG testing and related scams. They also are increasingly aware of the large volume of claim dollars flowing out their doors.
The insurance cost of the test is only part of our concern. More important is the danger to trusting consumers. They undergo unneeded injections, potentially dangerous surgeries and expensive settlements that are created by poorly performed or forged EMG exams.
Given that no regulations exist nationally to control who should be doing these exams, the time has come for the payors and state legislators to step up to the plate and protect patients from fraudulent or inaccurate examinations. Because an abnormal EMG can lead to unnecessary spinal pain injections or spinal or decompressive nerve surgery, measures must be taken to ensure that testing is performed only by qualified practitioners.
Significant efforts along this line have been instituted by AANEM. This is the national EMG organization that, many years ago, published standards and specific documents concerning “who” should do the testing. More recently, AANEM has established accreditation as the goal standard for quality EMG testing in the U.S. When I heard that accreditation was a reality, I made sure that I was quickly onboard with establishing my office as an accredited lab in New Jersey.
We will take a giant steps toward resolving this dangerous and costly problem once the federal government through Medicare, and insurance companies and state legislatures all realize accreditation should be required for reimbursement for these studies. Accreditation has been a solution to quality issues in other fields that has proven to lead to better outcomes and something that can cripple insurance fraud and abuse.
Sidebar: EMG and nerve studies: how they work
To best understand why this level of abuse and insurance fraud is taking place, a discussion of the medicine, economics and governing standards is helpful.
EMG and nerve conduction studies evaluate the peripheral nervous system. This includes the nerve roots, peripheral nerves and muscles. Tests are individualized for each patient. Testing is based on the study of small bioelectric waveforms from the nerves and muscles that are recorded and amplified. The wave forms are measured in microvolts and millivolts. Poor or fraudulent tests can endanger patients with missed diagnoses, improper treatment and further unneeded testing.
Nerve conduction studies are billed based on the testing specifics. Each motor nerve and each sensory nerve was individually billable before 2013. However, given the overuse of certain codes, a maximum of 13 nerve- conduction studies per date of service was imposed Specific codes were put in place for testing. Needle EMGs are billed per extremity studied. At least five muscles in that extremity must be studied. If exams of fewer than five muscles are performed, the study must be billed as a limited study — with lower insurance reimbursement.
The full study is divided into two parts: needle EMG and nerve conduction study. Motor and sensory nerve studies are performed on most patients. Selecting which nerves to study should be carefully planned, and depend on the patient’s symptoms. The selection must be tailor-made for each assessed peripheral nerve of concern. After an initial exam by the physician, the electromyographer should formulate a diagnosis to explain the patient’s complaints and guide the study specifics. Consistency in recording technique is required for accurate diagnoses.
The physician performing the study must clearly document that the potential is of good quality, that no interference from external noise is seen, and that the baseline is stable. The physician also most show that the value for amplitude and latency is clearly legitimate and accurate, based on review of the numbers listed for recorded values.
Equally essential is the needle EMG exam. A small needle that acts as an electrode is inserted into the muscle. An adequate sampling of both limb and muscles adjacent to spine, and paraspinal muscles must be obtained and recorded at rest, and with voluntary activity.
The AANEM has published a “ Recommended Policy for Electrodiagnostic Medicine.” It defines the accepted medical standards for performing EMG and nerve-conduction studies. AANEM discusses training and performing studies, as well as coding. AANEM also discusses using testing for problem solving.
“There is no single universally accepted specific protocol or set of procedures employed for each diagnostic category, ” AANEM states.“Instead, the electrodiagnostic consultant must continually reassess the findings found during the testing. This new information may require modifying of the initial study designed to include other unplanned procedures. It also may require considering of different alternative diagnoses.”
This policy is endorsed by the American Academy of Neurology, and American Academy of Physical Medicine and Rehabilitation.
AANEM also has a position statement“Nerve conduction studies performed independent of needle EMG studies may only provide a portion of the information needed to diagnose muscle, nerve root, and most nerve disorders. For this reason, it is the position of the AANEM that except in unique situations, NCV and needle EMG should be performed together in a study designed by a trained neuromuscular physician.”
About the author: Dr. John Robinton is a graduate of Princeton University and Cornel Medical School. He is a practicing neurologist in Montclair, New Jersey. He is a medical director for One Call Care Management in the workers compensation field, managing the largest EMG network in the US. Dr. Robinton is the only practicing physician in New Jersey who directs an accredited EMG laboratory who is also a Fellow of the American Academy of Neurology, and is board-certified in EMG and neurophysiology. Dr. Robinton served on the Professional Standards Committee of the American Association of Neuromuscular and Electrodiagnostic Medicine, and was the liaison to that organization for the State of New Jersey for many years. He has been enlisted by the Attorney General of New Jersey on several occasions to assist in investigating fraud and abuse in electrodiagnostic testing.