Many of you probably remember our repeated objections to sales organizations advising their purchasers to bill code 64555 (percutaneous implant of neurostimulator array; neuromuscular for ariculo-therapy procedures.

We have been advising against this billing since it first was reviewed in 2013 and published our correct coding opinion as being either 64999 or more specifically;

HCPCS:  Is the Most specific.

  • S8930 Electrical stimulation of auricular acupuncture points; each 15 minutes of personal one-on-one contact with the patient.
    • (Developed and became effective April 1, 2012.

The 2018 CPT has removed the temptation for these improper billing by deleting the 64555 code entirely and adding a parenthetical note  stating “For percutaneous electric neuromuscular stimulation or neuromodulation using needle(s) or needle electode(s) [eg PENS, PNT,] use 64999.

We hope this will finally put this matter to rest.


20 Years after HIPPA established a national Fraud and Abuse Control Program, the enforcement agencies are still providing impressive results.

During Fiscal Year (FY) 2016, the Federal Government won or negotiated over $2.5 billion in health care fraud judgments and settlements. As a result of these efforts, as well as those of preceding years, they recovered over $3.3 billion.

The Department of Justice (DOJ) opened 975 new criminal health care fraud investigations, filed criminal charges in 480 cases involving 802 defendants and secured a total of 658 convictions Also in FY 2016, DOJ opened 930 new civil health care fraud investigations and had 1,422 civil health care fraud matters pending at the end of the fiscal year.

FBI investigative efforts resulted in over 555 operational disruptions of criminal fraud organizations and the dismantlement of the criminal hierarchy of more than 128 health care criminal enterprises.

In FY 2016, investigations conducted by HHS’ Office of Inspector General (HHS-OIG) resulted in 765 criminal actions against individuals or entities that engaged in crimes related to Medicare and Medicaid, and 690 civil actions, which include false claims and unjust-enrichment lawsuits filed in federal district court, civil monetary penalties (CMP) settlements, and administrative recoveries related to provider self-disclosure matters.

HHS-OIG also excluded 3,635 individuals and entities from participation in Medicare, Medicaid, and other federal health care programs.

New Exclusion Authority and Penalties:
On Dec. 6, 2016, the OIG issued rules that incorporate new civil monetary policies (CMP) authorities, clarify existing authorities, and reorganize regulations regarding CMPs. The final rule also implements provisions of the PPACA of 2010 that authorize CMPs for the following;
*Failure to grant the OIG timely access to records.
*Ordering or prescribing while excluded.
*Making false statements, omissions, or misrepresentations in an             enrollment application.
*Failure to report and return over-payments.
*Making or using a false record or statement material to a false or   fraudulent claim.

In addition, under both the Federal Civil Penalties Inflation Act and the 21st Century Cures Act, Congress adjusted certain civil fines and penalties for inflation and increased the OIG’s authority to issue exclusions for the following:
• Expand CMP for false claims related to contracts and grants funded by Medicare and Medicaid or other HHS programs.
• Authorize the OIG to impose CMP on individuals or entities that knowingly submit false claims, up to $10,000 for each claim.
• Expansion would include false statements on applications or proposals for HHS-funded grants/contracts, up to $50,000 for each false statement.
• $15,000 for each day the entity fails to allow OIG access to audit or investigate false claims.
• Filled in a gap to expand OIG authority to allow the imposition of exclusion of an officer or managing employee who left the organization prior to the pursuit of fraud that such person was involved in, even if they are not currently employed by the prior company.

Fraud and/or abuse differ only in the “intent” of the person committing the offense.  Most “abuse” cases are pursued as civil actions while actual “fraud” with intent are criminal.  In other words, fraud can send you to the “big house” while stupidity just sends you to the “poor house”.

Let’s face it, many practices are having a hard time staying profitable and may engage in some “creative billings” to increase what they are paid by various carriers. For some reason, practices seem to think that Medicare/ Medicaid/ and Tricare are their only real concerns when it comes to misrepresenting services for financial gain.

SadTypically their first concern arises when they receive a letter from an investigations unit requesting several patient files for specific dates of service that the carrier bases on their provider participation agreement authorizing the plan(s) to perform reviews, audits and statistically valid sampling techniques for peer review program activities, medical necessity reviews, data validation reviews, billing and claims payment audits, coding or quality review audits; all of which routinely hold all physicians in the practice jointly and severally liable for misreporting by any and all providers in the practice.

Healthcare fraud is a crime under most criminal codes and consists of intentional deceit within the healthcare system for the purpose of illicit gains. Healthcare abuse is similar activity or behavior where knowing intent to obtain an unlawful gain cannot be established.
The primary difference between fraud and abuse is a person’s intent. That is, did they know they were committing a crime? In either case, the key component is that the perpetrator knew or should have known that the act was improper or inconsistent with sound practices.

It’s important to distinguish health care fraud from mere mistakes, omissions, or improper payments. To commit fraud, a person must knowingly engage in a plan, scheme, or activity to provide falsehoods or misrepresentations with the intent to achieve some financial gain.

The proof of the allegations is the existence of the claims regardless of the payment or denial. The scheme does not need to be successful to be considered fraudulent.

Most practices referred by the carrier for criminal actions are due to intentional misrepresentation of the procedure performed and willful misconduct by the providers, managers and billing people to mis-code the actual service(s) and falsify the medical records to support the misrepresented service codes. The “collaboration” of the parties to the scheme is usually prima facie evidence of intent and the testimony of one of the more innocent collaborators who rolls over on the boss, is all it takes to prove intentional fraud.

Stealth Coding.
The “basic instructions” on code selection contained in the CPT®* manual prohibits “stealth” coding.
“Select the name of the procedure or service that accurately identifies the service performed. Do not select a CPT code that merely approximates the service provided. If no such specific code exists, then report the service using the appropriate unlisted procedure or service code. ………When necessary, any modifying or extenuating circumstances are added. Any service or procedure should be adequately documented in the medical record.”

Conservative estimates of the amount of healthcare expenditures lost to fraud is three percent of total services paid, which equates to over $70 billion annually. Frequently seen examples are;

• Billing for more expensive services or procedures than were actually provided or performed, commonly known as “upcoding”-i.e., falsely billing for a higher-priced treatment than was actually provided. This is often combined with an accompanying “inflation” of the patient’s diagnosis code to a more serious condition consistent with the false procedure code.
• Performing medically unnecessary services solely for the purpose of generating insurance payments-seen very often in nerve-conduction and other diagnostic-testing schemes.
• Misrepresenting non-covered treatments as medically necessary covered treatments for purposes of obtaining insurance payments- This is often seen in multidisciplinary settings where a non-covered service such as spinal manipulation or extremity adjustments by a Chiropractor are represented as a covered physical therapy procedures under order of a medical provider.
• Falsifying a patient’s diagnosis to justify tests, surgeries or other procedures that aren’t medically necessary.
The majority of health care fraud is committed by a very small minority of dishonest health care providers.

Sadly, the actions of these deceitful few ultimately serve to sully the reputation of perhaps the most trusted and respected members of our society-our physicians. Unfortunately these fraud-doers take advantage of the confidence that has been entrusted to them in order to commit ongoing fraud on a very broad scale and their ability to spread false billings among many insurers simultaneously including public programs such as Medicare and Medicaid, where they can maximize fraud proceeds while lessening their chances of being detected by any a single insurer.

Federal Criminal False Claims Statutes (18 U.S.C. §§ 287,1001) Section 1001 applies to anyone whose action(s) related to any claim(s) for government payment consist(s) of any of the following:
• Falsifying, concealing, or covering up by any trick, scheme or device a material fact related to any claim(s) for government payment;
• Making any materially false, fictitious or fraudulent statement or representation; • Making or using any false writing or document knowing it contains any materially false, fictitious or fraudulent statement or entry.
Section 287 states that whoever makes or presents to the government a claim knowing that it is false, fictitious or fraudulent shall be imprisoned and subject to fines.
We understand from attorneys that the government is required to establish all of the following in regard to the action(s) of a false claim(s) case defendant. He/she:
• Made or presented a false, fictitious or fraudulent claim to a department of the United States;
• Knew the claim was false, fictitious or fraudulent; and
• Did so with the specific intent to violate the law or with awareness that what s/he was doing was wrong.

EMPLOYEES BEWARE: Bosses are not doing their employees any favors when the intimidate them to “do as they are told”. Filing false and miscoded claims can seem like a minor crime, but a conviction for health care fraud, especially when the defendant is a professional who depends on a license to practice, can irreparably change the course of that professional’s life. “My boss made me do it” is normally NOT going to get you absolve you of your participation in perpetrating the crime or conspiracy to cover it up.

As carriers improve investigative techniques through their National Health Care Anti-Fraud Association and refer more cases for criminal action in addition to recovering their money, we need to offer the following advice to our members;
The moment you are approached by investigators about a potential fraud case, you need to contact a criminal defense attorney. You can unknowingly incriminate yourself anytime you speak to an investigator if you don’t have legal advice. Local criminal defense attorneys are the only people capable of providing you with legal advice in light of their knowledge of the law, as well as their experience with local prosecutors, courts, and criminal investigations.

If you’re being investigated for breaking a federal law, your case will be handled in the federal court system. Be sure that the lawyer you choose has experience handling federal cases.

Naturally the best defense is to do it right in the first place.
If you are unsure of a particular billing scenario or you get a “I get paid doing this” from a “friend”, Contact us! Your Academy is here to help you.

*CPT is a registered trademark of the American Medical Association- gratefully used with their permission.

Dry Needling – Competency and Coding

The Academy has had numerous requests in recent months regarding the use of “dry needling” for trigger point therapy and if the service is permitted to be performed by Physical therapists and/or other non-physicians who are not permitted to do invasive procedures or are certified in acupuncture.

Dry needling has been around for quite a while and involves the use of either solid filiform needles or hollow-core hypodermic needles for alleviation of muscle pain due to the hyper-irritative foci we call “trigger points”, that may occur in any skeletal muscle in response to strain produced by acute or chronic overload.  We know that these trigger points produce a referred pain pattern characteristic for that individual muscle that helps differentiate myofascial pain syndrome from tender points and fibromyalgia. Each pattern becomes part of a single muscle myofascial pain syndrome (MPS); and each of these single muscle syndromes is responsive to appropriate treatment, which includes injection therapy where injection is achieved with needle insertion through the dermal layer.

Depending on who is trying to classify the procedure, it may be referred to as; dry needling, acupuncture or a new term, intramuscular stimulation (IMS).  About the only “consensus” you will get is that the  needle insertion procedure can NOT be billed under a trigger point injection code (20553-20553) that requires administration of agents such as local anesthetics.

Acupuncture, dry needling and/or IMS techniques are similar but not necessarily the same. The clinician may perform dry needling with either a   filiform needle (aka “acupuncture” needle) or a standard gauge hypodermic needle.  Many healthcare practitioners use 22,25 or 27-gauge, 1.5 inch hypodermic needles for fear of deflection issues, those concerns have since proven unfounded and many now feel that the solid filiform needles not only provides better tactile feedback but also better penetration with less discomfort to patients. Both the use of hypodermic needles and the use of solid filiform needles are now accepted dry needling practice.

It is true that the solid filiform needles used in dry needling are regulated by the FDA as a Class II medical device “intended to pierce the skin in the practice of acupuncture”, however the FDA definition applies to how the needles can be marketed and does not mean that acupuncture is the only medical procedure where they can be used.

That being said, no one profession actually owns a skill or activity in and of itself nor does any single activity within the practice make any particular service professionally unique. Simply because a skill or activity is within one profession’s skill set does not mean another profession cannot and should not include it in its own scope of practice.

The practice of acupuncture by acupuncturists and the performance of dry needling by physical therapists appear to differ in terms of historical, philosophical, indicative, and practical context. The debated distinction between dry needling and acupuncture has become a controversy because it relates to an issue of scope of practice of various professions.  It is my understanding from the APTA that Physical therapists that perform dry needling do not use traditional acupuncture theories or acupuncture terminology.  Similarities do however exist in terms of dermal penetration with a solid filament needle (a tool) to varying depths within the body for therapeutic indications. Many States have already approve dry needling by PTs who are specifically trained while others, such as the Superior Court in Washington State[1] have ruled that dry needling is practicing medicine and prohibited absent a physician’s license.   The American Physical Therapy Association has posted many of the opinions issued by State Attorney Generals on their web site at

It is unlikely that our Academy or the AMA will be “solve” the turf battle in the near future.

This however has nothing to do with how the service is billed……  The CPT™ [2]  specifically states the most basic use is to select the procedure or service that accurately identifies the service performed and prohibits using a CPT code that merely approximates the service provided. The “standard” is; if no specific code exists in either the CPT™ or HCPCS , then you report the service using the appropriate unlisted physical medicine/rehabilitation service or procedure code.

The code selection then is simple for an actual “acupuncture” procedure.  Code 97810; Acupuncture, 1 or more needles; without electrical stimulation, initial 15 minutes of personal one-on-one contact with the patient would be our correct coding unless electrical stimulation was also used. (see 97813)  If you are using “a solid core acupuncture needles” it is illogical to assume you are doing some form of “injection” as is required by codes 2055x.  Use of acupuncture needles is not a covered service, whether an acupuncturist or any other provider renders the service. 42 U.S.C. § 1395y(a)(1

For those however that want to view the procedure as “dry needling, intramuscular manual therapy, intramuscular stimulation (IMS) or as a silver-crested winged aviate waterfowl, we will still consider it a “duck” without a standardized name or assigned code. In our opinion, billing under Current Procedural Terminology (CPT) codes 2055x TPI or therapy codes 97112 (neuromuscular reeducation) or 97140 (manual therapy techniques) is a misrepresentation of the actual service rendered and could be considered fraud by Medicare. 31 U.S.C. §§ 3729–3733.

Therefore, in the opinion of this Academy, the proper “coding” will depend on the actual “intent” of your procedure.  IF you wish to consider the procedure a dry needling under the trigger point injection area of the CPT, you should report it as 20999 with the specific description of dry needling.  If you are a PT/OT and you feel this is under your therapy POC, it should be reported as a PT/OT procedure under 97999 with the same description.

By the way ……….IN THE REAL WORLD…   most carriers have dry needling addressed as a “one liner” in their TPI policies as being “not covered” and very few cover “acupuncture”.

[1] South Sound Acupuncture Association vs. Kinetacore, et al.

[2] CPT is a registered trademark of the American Medical Association – © all rights reserved. Used with permission.

U.S. Department of Health and Human Services Office of the Inspector General  : WORK PLAN Fiscal Year 2015

????????????????????????????????????????????????????????????????????????The office of the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) was created to protect the integrity of HHS programs and operations and the well-being of beneficiaries by detecting and preventing fraud, waste, and abuse; identifying opportunities to improve program economy, efficiency, and effectiveness; and holding accountable those who do not meet program requirements or who violate Federal health care laws.

OIG staff members serve in the Washington DC headquarters but also deployed throughout the Nation in regional and field offices to conduct audits, evaluations, and investigations; provide guidance to industry. The collaborate with HHS and its operating and staff divisions, the Department of Justice (DOJ) and other executive branch agencies, Congress, and States to bring about systemic changes, successful prosecutions, negotiated settlements, and recovery of funds.

Each year, the OIG prepares and issues a “Work Plan”[1] for the fiscal year that summarizes new and ongoing reviews and activities that OIG plans to pursue with respect to HHS programs and operations during the current fiscal year and beyond.

It is important for providers and suppliers to be aware of the current plan since it is developed to assess relative risks in the programs for which they have oversight authority; identify and set priorities for those areas of concern most in need of attention

So who and what’s on this years “list[2]. Continue reading “Chiropractors, Ophthalmologists, sleep disorder testing and Physical Therapists all make the OIG “Hit List” for 2015”

CodingCoding Alert for P-Stim™ AGAIN!

Writing for the Academy:  R.L. Ramsdell PhD, FACFEI, CFC, DABFE, LFMAAMA. Executive Director.

March 21, 2014

We are once again receiving coding questions and issues regarding the P-Stim™.

We originally published a special alert for this product on September 15, 2013 when members reported the sales representatives were recommending CPT 64553 “implant” code for the procedure and a billing of L8680 for the electrodes.

In our original alert to our members, we stated;

The Academy has received many recent inquires on the proper coding for electrical stimulation of auricular acupuncture points using the P-Stim™ device.  Various coding scenarios were submitted from concerned members, including “stealth” coding using implant codes, as offered by some sales representatives as well as their claims of “coverage” by “Medicare and Most Major Medical Plans”.

Our investigations have shown these claims for the most part, are false and may be designed to create an unrealistic anticipation of payment and/or offer various “stealth coding” scenarios that could qualify the procedure for payment based solely on submission of inaccurate codes BUT would put the practitioner “at significant risk” for allegations of fraud or abuse on audit.

According to recent member reports, the sales people have now “altered” their coding suggestion to use CPT implant code 64555 for the procedure and E1399 for the electrodes.

First, let’s look at the FDA approval for the unit.  You can view it for yourself at:

  • Trade or Proprietary Name: P-Stim
  • Common Name: Electro-acupuncture device
  • Classification Name: Electro-acupuncture stimulator
  • Classification: Unclassified

Predicate Device: The legally marketed predicate device to which the P-Stim is substantially equivalent is the Acu-Stim (KO14273).

Intended Use:The P-Stim is intended for use as an electro-acupuncture device to stimulate appropriate auricular acupuncture points.

Device Description: The P-Stim is a miniaturized, battery-powered, transcutaneous electrical nerve stimulator that has a pre-programmed frequency, pulse, and duration for the stimulation of auricular acupuncture points.

The device connectsvia three stainless steel wires to acupuncture needles that have been applied to the appropriate auricular acupuncture points. The device is powered by three zinc air batteries, each with a voltage of 1.4 V. The device is on for 180 minutes, then off for 180 minutes, for a maximum period of up to 96 hours.

Based on the unit’s approval and accepted indications, we must again stress the most “basic instructions” on code selection contained in the CPT manual that prohibits misrepresentation through “stealth” coding.

Select the name of the procedure or service that accurately identifies the service performed. Do not select a CPT code that merely approximates the service provided. If no such specific code exists, then report the service using the appropriate unlisted procedure or service code.

Medicare entertained a request from P-Stim in their May 29, 2013 HCPCS Meeting.  Agenda item #6 Stated; Topic/Issue:Request to establish a new Level II HCPCS code to identify a miniaturized device designed to administer auricular point stimulation treatment over several days. Trade name: PSTIM. Applicant’s suggested language: “P-STIM: percutaneous auricular neurostimulator with 3 needles; used for before and after measurements of sympathovagal balance”. According to the requester, the P-STIM is a miniaturized device designed to administer auricular point stimulation treatment over several days. Point stimulation by the P-STIM is mainly used to treat pain. The P-STIM is a wearable device this is designed to administer continuous pulses of a low-level electrical current at the ear over several days. Electrical pulses are emitted though three selectively positioned acupunctures needles. The P-STIM is worn for four days on and three days off and is removed by the patient on the fourth day. The average patient usually requires 1-12 weeks of treatment. According to the requester, the patient population for which the device is clinically indicated is patients who suffer from diagnosis as: migraine, chronic pain (lower back or otherwise), shingles, fibromyalgia, refractory neuropathy, central sensitization disorders and PTSD.  The decision was; A national program operating need was NOT identified by Medicare, Medicaid, or the private insurance sector to establish a code to identify this device. Based preliminary benefit category analysis, we believe that there would be NO Medicare payment for these items.

Major Medical Coverage:

Non-coverage of the services may be found in their Acupuncture policies, complementary and alternative medicine or, if specifically addressed, like with the “Blues”, in a policy for “CRANIAL ELECTROTHERAPY STIMULATION (CES) AND AURICULAR ELECTROSTIMULATION”. Others, like Health Net, for example, just include the service under their non-payable “investigational procedures” listing.


Opinion on the use of CPT implant code 64555 for the procedure and E1399 for the electrodes. 

 In reviewing the literature and rationale from the company, we see that they are making a “leap” to now declare the unit to be a “percutaneous electronic nerve stimulator” (PENS) and applicable to the coverage provisions and coding applicable to those units INCLUDING the implant procedure code 64555  Percutaneous implantation of neurostimulator electrodes; peripheral nerve.

We must again take exception with the rationale, based both on the coding and on the “off label” use that exceeds the FDA approval of the unit as an electro-acupuncture device to stimulate appropriate auricular acupuncture points.

We must also take exception that the electrodes are “implanted” when the FDA 510(k) approval specifically states “The P-Stim™ device connects to 3 inserted acupuncture needles with caps and wires.”

Typically carriers interpret “implant” as being a surgical procedure way beyond an “insertion” of needles.

Last, we must object to assuming that the implant is to the “nerve(s)” since the approval also specifies that the use of the “stylus” is to identify the appropriate auricular acupuncture points.

Academy Conclusion On Proper Coding:  Based on the available evidence, the Academy finds that the representative claims that “P-stim is reimbursed by Medicare and Most Major Medical Plans” and should be billed under the 64555 code are inaccurate.

The Academy therefore suggests the following as “applicable” to the P-Stim™


  • 97813 Acupuncture, 1 or more needles; with electrical stimulation, initial 15 minutes of personal one-on-one contact with the patient
  • 97814 Acupuncture, 1 or more needles; with electrical stimulation, each additional 15 minutes of personal one-on-one contact with the patient, with re-insertion of needle(s) (List separately in addition to code for primary procedure)

HCPCS:  Is the Most specific.

  • S8930 Electrical stimulation of auricular acupuncture points; each 15 minutes of personal one-on-one contact with the patient.
    • (Developed and became effective April 1, 2012.)

There is no specific supply code for the unit(s) and therefore you would use E1399 with a description of “P-Stim electro-acupuncture device”.

In our opinion, billing for application of the unit under 64555 is NOT appropriate and such reporting should be restricted to 64999 with an accurate description of the procedure to avoid any misrepresentation to the carrier.  We remind everyone that the fact you billed using an approximate fit code which was paid, does NOT mean you billed it correctly.   For example, Medicare will pay the codes you billed because they are valid codes and they are assuming those are the procedures you performed. Your PAIN will come with audit when your notes do NOT support a surgical implant.

We also feel proper billing for the supplies (unit kits) should be reported under the E1399 NOS supply code or CPT general supply code 99070, with an accurate description of “electro-acupuncture device” including the unit name.   Most carriers will expect you to submit an invoice with the claim.   

We feel any other coding scenarios would be a misrepresentation of the service performed, subject to recovery upon carrier audit and possible allegations of fraud or abuse.  

Again, our opinion here is on the “Coding” ONLY and not the quality or efficacy of the actual equipment, technology or potential therapeutic benefit to the patient.

Members should consider the potential benefit to the patient within the reality of a “non-covered service” and provide the patient with applicable notice of personal liability.