Do progress notes need to be signed before billing?

Are you one of many therapists having a mini (or major) freak out over Barbara Griswold's recent blog post? You’re not alone! Let’s talk about it… 

Regardless of insurance standards, when it comes to documentation, my goal is to focus on the practical and common struggles most therapists in private practice experience. Falling behind in progress notes, and how to address writing “late” progress notes, has become a specialty of mine. 

So you can imagine my inbox was flooded after Barbara’s recent blog that stated: 

“But here’s the bottom line: If you are behind in your notes, your billing has to wait. You can’t legally submit the claim or give the superbill—and thus you or your client can’t legally collect from the health plan —until the session is documented.” 

Skip to the question you're here for:

• Is submitting a claim without a completed progress note fraud?
• Does Medicare require signed notes before you submit a claim?
• Do out-of-network providers need completed notes before a superbill?
• Do Medicare requirements apply to all insurance companies?
• Summary: what to prioritize

🚨 Before we dive in: let's talk about audit-related fears.

Susan Frager of PsychBilling Coach (and also mentioned in Barbara's article), did an excellent job summarizing almost exactly the same points about audits that I highlight in my book, Stress-Free Documentation: 

Most “audit red flags” are billing related - because this is the information the insurance company regularly receives from you.  

Your progress notes themselves are never viewed until after a records request. 

This is great news because the content of your progress notes, including signature dates, are not exposed until after billing information has already been reviewed. And this billing related information is fairly consistent among insurance payors, making audits somewhat easy to predict. 

What insurance companies see as potential “red flags” in your billing that might trigger an audit: 

• Billing for sessions more than once a week
• Using the same diagnosis for all, or most, clients consistently
• Using Adjustment Disorder frequently and for longer than six months
• Always billing the same CPT code (for example, always billing 90837 without a nice sprinkling of 90834)

These red flags don’t mean you’ve done anything wrong. They simply mean the insurance company might notice and request some confirmation that your documentation meets medical necessity criteria.

Notice I did not list “submitting claims before signing a progress note” in that list above. Again, that’s because payors have no clue when, or even if, you’ve written a progress note when you submit a billing claim. But they do assume you’re writing case notes.

So why did Barbara’s article cause such a stir? Because many clinicians are regularly behind in writing progress notes. The thought of choosing between either writing progress notes daily, or not getting paid, is overwhelming.

Like, can’t sleep at night and considering becoming a coach type of overwhelming. 

If that’s you, I have some good news and some… let’s say “meh” news:

The TLDR is that no, you’re NOT committing fraud if you submit a billing claim before completing and signing a progress note (provided you actually did conduct that session and plan to write your progress note). 

However, as with everything in documentation, there is some nuance to this. And that’s my jam, so let’s dig into the article with all the detail you never knew you wanted!

✅ Where we agree: dates and signatures are tracked in your EHR

Barbara reviewed some examples of how clinicians get around dates and signatures in their EHR when they are writing notes “late.” And Barbara is right.  

Your EHR keeps a record of every time a note is started, edited, saved, signed, locked, unsigned or unlocked, and adjusted. That’s part of your EHR providing necessary HIPAA security, and it’s a good thing. It’s actually meant to protect you and your clients.

Where clinicians get into trouble is over-analyzing dates and signatures to the point of feeling paralyzed… and then not completing and signing progress notes at all. This issue of dates and “when is a progress note late?” (and what to do about it!) is big enough that it deserves its own blog post, so that will be next week. 

Until then, know that yes, signing and completing your progress note as close to the session date as possible is both 1) best practice, and 2) might be part of your contractual agreement with the insurance company if you’re in-network. 

Notice I did not say law. Spoiler alert re: next week’s post on dates and signatures, I have not found a definitive law, or even Medicare policy, that identifies a timeframe for signing case notes other than “as soon as practicable.” 

Your EHR is tracking dates, this is a good thing, and you’re not committing fraud by signing a progress note a few days (or even weeks) after a session was completed. So don’t try to fudge the numbers. But you might try this next strategy…

📝 Consider using paper progress notes

Okay, this point wasn’t in Barbara’s article, but it was in Susan’s recent article on payment integrity and it’s so helpful that I needed to include it here. 

I’m shocked by how often I’ve recommended people go back to paper progress notes.

Writing case notes on paper instead of using an EHR solves so many of the issues that lead to paralysis around case notes:

• The literal space you have for writing is reduced. 
• You can format a template that is super specific to your needs. 
• You’re more likely to jot down information during or immediately after a session.
• Dates and signatures feel more simple. 

And logistically, it’s pretty easy. Do all your progress notes via paper and then either 1) keep them securely stored in a file cabinet, old school-style, or 2) scan and upload, or take a picture of the progress note, and attach it to your scheduled case note inside your EHR. 

I still think using an EHR as a practice management tool is extremely helpful for all the other components of your clinical documentation and private practice. However, it’s totally fine to keep your progress notes in a separate file. 

If you’ve been considering this option, try it! Then let me know how it goes.  

Okay, now let's get into the other topics in the article, particularly the points about fraud and submitting billing that are creating some sleepless nights.

⚖️ Is submitting a claim without a completed progress note considered FRAUD?

From Barbara's article: “The False Claims Act (31 U.S.C. § 3729(a)(1)(A)) states that submitting a claim before the documentation exists can be legally classified as a fraudulent or abusive billing practice, even if it was just an oversight due to a backlog.”

The False Claims Act states that “knowingly” submitting a false claim is fraud. Submitting a billing claim when you know the session occurred, have partial notes, and have not yet signed that progress note, is NOT the same as knowingly submitting a false claim.

It’s not even the same as submitting a claim that is inaccurate because you made a mistake. Mistakes are not fraud.
Incomplete documentation is not fraud.
Late documentation is not fraud.
Fraud requires intent to submit false information. 

I’m not an attorney, so I asked one about this. He agreed with me. Phew!

If you want to hear his full answer on the topic (because yes, like me, his answers always include “it depends” and looking at the full nuance of potential scenarios), you can. I asked him as part of the monthly Office Hours available inside Person-Centered Tech’s premium membership service. This is not sponsored and I’m not an affiliate, but I can’t recommend this service enough. 

Seriously, join it. Ask any HIPAA, technology, or ethical-legal question you want. It’s worth every penny, and it’s not even expensive. 

But wait, there’s more evidence you’re not committing actual fraud! We can also look at audit reports to get specifics about how this issue presents in real-life scenarios. 

In a detailed audit report specific to psychotherapy services (such as this one), the Office of Inspector General (OIG) does not use the phrase “fraud” and instead uses terms such as: 

• “Improper payments” or “billed incorrectly” when people do not fulfill documentation requirements, and 
• “Overpayment” when recovering funds related to anything from billing mistakes to missing documentation.

This should be a huge sigh of relief! Why?

Because it highlights that mistakes are completely DIFFERENT from fraud.

The OIG’s report identifies quite a few glaring, but common, trends in psychotherapy documentation. Keep in mind that these audits were for larger organizations that had billed millions of dollars in psychotherapy services to Medicare. However, the findings and resulting recommendations were consistent across the country. 

In the OIG recommendations, they suggest that the regional MAC (the entity who actually manages Medicare and Medicaid regionally) do things such as ensure psychotherapy services “were actually provided and have supporting documentation.” This indicates what other data about audits also reveals - one of the biggest problems in audits is simply not having or not providing any documentation at all. 

Recommendations included making sure that documentation of psychotherapy services: 

• Provided the time billed for the service, 
• Justified when incident-to billing occurred, and 
• Included clinician name and signature. 

These were the findings from massive audits that resulted in millions of dollars being paid back to the MACs associated with Medicare. 

Yes, it really is as basic as:
Step 1) Get your progress note DONE,
Step 2) Adjust start and stop times for each session, as needed, and
Step 3) Sign your progress note.

Ultimately, the claim that “You can’t legally submit the claim or give the superbill… until the session is documented” is not substantiated by the actual law, by audit reports, or by Medicare policy requirements (more on that next). 

🏥 Does Medicare require progress notes to be signed and completed before submitting a claim?

From the article: “Medicare and Medicaid regulations specifically require medical records to be finalized before a claim is submitted, both to prove “medical necessity” and that the service was actually rendered.”

Medicare and Medicaid provide only a vague definition of “timely” documentation. CMS directs clinicians to complete documentation "during, or as soon as practicable after" the service.  

There is only one regional MAC, WPSGHA, that gets specific about this. Here is what they say about timely documentation:

“A provider must complete the documentation before submitting a claim to Medicare. Medicare does not provide reimbursement for services without supporting documentation.”

But then they also state (emphasis added): “You do not have to wait for the provider’s signature prior to submitting the claim. The provider may sign the documentation after claim submission. Medicare considers notes "incomplete" when missing the provider signature.”

Translation: They want you to do the progress note before you submit a claim, but they understand finalizing a progress note can’t always happen in perfect sync with billing. They are literally saying in their policy that signing a progress note is required, but it can happen after you submit a claim. 

CMS also provides guidance on what to do when documentation isn’t completed within this guideline: 

“All services provided to beneficiaries are expected to be documented in the medical record at the time they are rendered. Occasionally, certain entries related to services provided may not be properly documented. In this scenario, the documentation may need to be amended, corrected, or entered after rendering the service. The date and author of any amendment, correction or delayed entry should be identifiable, and the change/addenda should be clearly and permanently denoted.”

-Section 3.3.2.5, Chapter 3 

So, we are getting confirmation that:
1) a signature after a claim submission is acceptable, and
2) if we need to create an addendum or explanation for odd scenarios, there is guidance on how to do that. 

All things considered, my advice here doesn’t change, regardless of the required timeline by any insurance company. My advice has always been to get your progress notes done as quickly after the session as possible. Your case notes will almost always be easier and more efficient. 

I will also go out on a limb here and say that I really don’t see clinicians “getting in trouble” for notes that are written within a day or two of billing, even if one argues that technically, they could.  

A recent Reddit post from a mental health therapist going through an audit created a related scare, but it also highlights something more important:

No one is posting a rant on Facebook or Reddit when they submit documentation for an audit and receive no feedback at all (meaning, no clawbacks). You’re not hearing about the thousands of audits that result in boring findings.  

Here’s what I’ve seen from literally every audit report or board investigation shared with me, including those people shared because they were worried about late case notes:

• Signature dates and completing progress notes, even months after a session, is NEVER the main issue.
• Signature dates and completing progress notes late might be mentioned in an audit report, but is not listed as the actual reason for denial of claims.

Licensing board sanctions tend to focus on issues related to informed consent or gross negligence. Audit findings tend to focus on missing documentation, missing signatures, and poor documentation of medical necessity (aside from other billing-related issues like incident-to billing and codes not matching time billed).  

Do you appear more competent and organized if all your progress notes are signed before submitting a claim and all your documentation is in order daily? Sure! 

Are you ethically required to complete progress notes for every session? Yes. 

Does Medicare prefer your claims are submitted quickly and after documentation is complete? Also yes. 

But that doesn’t mean your case notes must be completed and signed before you submit a billing claim. And it certainly doesn’t mean you’ll have clawbacks in an audit simply because you completed your progress notes late. So don’t let this be an issue that creates fear and contributes to paralysis.

Do your progress notes. Do them as soon as possible, and do them late if that’s what gets them DONE.

📄 Do out-of-network providers need to complete progress notes before they provide a superbill? 

From the article: “When a provider generates a superbill without completed documentation, they are still creating a fraudulent document to be presented to the payer.  Once again, superbills constitute a legal representation that a complete, compliant, and documented service took place.” 

We already debunked the fraud claim above, so let’s dig into the nuance of superbills and what you are “required” to do as an out-of-network provider. 

The whole point of being out-of-network is that you can act with the clinical benefits for your client at the center, unrestricted by insurance company policies and requirements. 

You do not have a contract with, or any obligation to, an insurance company as an out-of-network provider. Your obligation is to your client. 

However, when your client requests a superbill and chooses to let insurance pay for psychotherapy, they have an agreement with their insurance company - and this agreement can impact how their services are paid. How (and if, and when) services are paid can absolutely have an impact on the clinical relationship. The key is informing clients about this information, either at intake or as soon as the topic comes up.

If you provide superbills and are not in-network, I recommend having a statement in your consent forms that you cannot confirm your documentation will meet the client’s insurance’s medical necessity requirements.

As soon as someone asks for a superbill (and often even before that), let people know that their records can be audited and that choosing to let insurance pay for services also means they are choosing to let insurance make treatment reviews (potentially audits) and determinations. Document this conversation. 

This is an important part of informed consent, for many reasons, but especially because many clients are not aware that a superbill means:
1) they will have a mental health diagnosis documented, and
2) their records can be audited.

This is also an important time to note that insurance payment for services is based on medical necessity criteria, and as an out-of-network provider, you cannot guarantee your documentation will meet that specific standard. 

Don’t feel guilty about this! You’re out-of-network for a reason.

I believe you can create audit-proof and clinically meaningful, yet simple, progress notes as an out-of-network provider. But focus on the informed consent piece, not on what insurance is requiring of in-network clinicians.  

🔍 Do Medicare requirements equal all insurance company requirements?

From the article: “Medicare and Medicaid regulations specifically require medical records to be finalized before a claim is submitted, both to prove “medical necessity” and that the service was actually rendered. And most private insurance companies follow Medicare’s lead in this regard.”

Commercial, or private, insurance companies do follow Medicare's lead with having medical necessity criteria, and use similar billing and documentation requirements. But not only does each insurance company have different requirements (both among themselves and different from Medicare), individual practitioners have different contracts. This is why my first answer regarding any insurance requirement is always "Check your contract." 

I followed up with Barbara via email and she reminded me of a very important point here: these timely documentation requirements are often buried within a variety of policies that 1) you agree to as part of your contract, and 2) change frequently and are often very difficult to identify or keep track of consistently. 

Frankly, insurance companies make this process difficult on purpose. It’s not fair and it sucks.

However, I will reiterate my point from earlier that when looking at actual audit reports, signature dates and completing “timely” progress notes are sometimes mentioned, but not listed as the reason for denial of claims. Over and again, there are other, consistent reasons for clawbacks: 

• Not having Start and Stop times listed on progress notes
• Not changing Start and Stop times to be different from the actual appointment time
• Incomplete, unsigned, or missing documentation (e.g. no treatment plan)
• Not justifying medical necessity (e.g. not addressing client progress and impairment)
• Not justifying the time billed (e.g. no explanation for providing two sessions a week)

I’ve worked with many clinicians who focused on the above, and completed most of their progress notes many days (even weeks!) after submitting billing claims… and they were fine. 

Good documentation is easier for an auditor to review. Incomplete or sloppy documentation makes an auditor sift through more information and backtrack, making it even more likely they’ll find other mistakes or missing information. 

So in the practical world of audits, regardless of Medicare, Medicaid, or other commercial and private insurance, focus on writing good, timely documentation.

If you’re behind in your progress notes, I have some specific steps for you below. You can also get my book, Stress-Free Documentation for Mental Health Therapists, if you want a quick and easy reference tool with full templates and cheat sheets.  

💡 Summary: what to prioritize for billing and progress notes

If you are reading this article (and especially if you already Barbara and/or Susan’s articles), you care a lot about being compliant. So here’s my major takeaway: 

If you care about being compliant, and you’re also behind in your progress notes, fear is not a motivator for you.  

If fear were a major motivator for getting progress notes done, then falling behind in progress notes wouldn’t be the biggest reason people find QA Prep. 

I’m going to dive more deeply into this concept of “timely” documentation in next week’s blog post and YouTube Live. It’s a topic that is frequently ambiguous and therefore, causes a lot of anxiety, so you deserve some detailed guidance on what it means for you and your practice.  

However, this is a great reminder about what to prioritize: 

• Get today’s notes DONE. Get them done imperfectly, just get them done.
• If you’re in-network, locate the behavioral health medical necessity criteria for any contracts and check for updates at least annually. Review your own records quarterly against that criteria.
• Create a plan to catch up on progress notes. The Stress-Free Notes Sprint was created exactly to help you do this. 
• If you know documentation is a struggle for you, consider some of these additional options: 
• Avoid insurance. It may not be worth it in the end if you know you can’t keep up with their documentation standards.
• Join a group practice. For many clinicians, the outside accountability is necessary and working for someone else is worth not owning all the risk. 
• Join the Stress-Free Notes Sprint. Yup, this is such a common issue that I actually run a group to help therapists catch up on notes! 

Whatever you do, don’t get stuck in a shame spiral, an overwhelm spiral, or even an “I hate insurance” spiral. It’s simply not helpful. Below are some better strategies for moving forward. 

Ultimately, there are two key points here about progress notes and dealing with insurance: 

🤝 Key Point #1: Reasonable people can disagree and still respect one another.

Writing progress notes is an ethical and legal mandate for all clinicians, regardless of whether or not you submit claims to any insurance company. We all agree on this point. I also highly respect both Barbara and Susan, and am a better clinician and better person because of all they do and provide. 

My perception of how to manage the risk related to “late” progress notes is that, if those progress notes are already late, let’s focus on 

1) Writing today’s notes, and 

2) Solving the problem that is creating your late notes in the first place. 

And my strong belief is that fear of audits or prosecution is not a solution to the problem. 

If you are already behind in your notes, nothing changes by reading Barbara’s article, Susan’s article, or even this article! Notes from six months ago are still notes from six months ago, and the same for notes from last week. 

Head back up to the “what to prioritize” section for actionable advice. 

💰 Key Point #2: Insurance companies have far too much power when it comes to clinical decision-making.

This is across the board, not just in mental healthcare. Insurance companies are for-profit companies that are making clinical decisions (or making clinical decisions burdensome to prove) and we are not mad enough about it. 

• We are not doing enough as a profession to partner with other professionals (physicians, physical therapists, nurses, etc.) who are just as frustrated with the healthcare system as we are. 
• We are not doing enough to advocate for legislation that simply lets us as clinicians make the clinical decisions without harmful delays. Check out this video describing more about that predicament: https://www.instagram.com/reel/DaBEPdjOJvt/?igsh=MTZubHFkNjM0MDQ4ZA== 
• We are not doing enough to advocate for payments that equal the level of training, continued education, and licensing that are required for our professions. Check out this video highlighting this issue: https://www.instagram.com/reel/DazFIOetT8A/?igsh=dGg4ZG91bDFpa3ow 
• We are not doing enough to push back against predatory companies that masquerade as practice management support, but control client referrals, create arbitrary documentation requirements, and use client data for their own benefit (or even against clients!).
• We are not doing enough to advocate for research on common issues that impact millions, yet are underfunded when compared with other, less common issues. Check out this misguided and unnecessary study: https://www.instagram.com/reel/DYNDWfjIbmu/?igsh=ODd6a2VpcW9wNXhn 

Insurance companies are for profit companies that are making clinical decisions, and we are not mad enough about it.

Profit is valued over necessary care, and over preventative care. Profit is the goal, not health.

🌱 There's a community doing something about it. 

Thankfully, there are clinicians standing up and doing something about these predatory practices that harm both clinicians and clients. I am pleased to share that I’m an Advisor for the Therapist Resource Institute (TRI).

TRI is a community created with intention - to support mental health therapists in all disciplines and across jurisdictional boundaries. Join TRI and receive support through practical Q&A’s, trainings, a resource directory, and also through events like casual happy hours where you can get to know other clinicians. 

A key component of TRI’s mission is looking at the larger systemic issues that impact clinicians as a whole. Insurance, private equity, and venture capital are unfortunately one of the largest systemic influences in mental healthcare today. And TRI is doing something about it. 

You don’t have to feel helpless about what insurance is doing to our industry. Join TRI, connect with like-minded colleagues, and empower yourself to take action, in whatever capacity you have today.