Washington & West Resources

Written by Cynthia M. Lipsitz, MD, MPH

As government auditors expand their lists of audit issues, medical records departments are working diligently to get healthcare professionals to improve their documentation.

And with good reason:  Significant financial risks can be traced back to poorly documented notes and orders.  Poor documentation increases the likelihood of miscoding, inaccurate DRG assignments and audit denials.  Patterns of these irregularities can lead to charges of fraud and abuse, plus further scrutiny from investigators.

Solutions to the documentation problem are not easy to find, and all come with both pros and cons. Paper or electronic templates offer some advantages, but it’s all too easy to leave great portions of them blank. Another option is to cut and paste sections of electronic notes, and wind up with the same documentation day after day. This practice, however, increases the risk of repeated inaccuracies and miscommunication. Standard-order sets offer the advantage of guidance based on medical evidence, but their decision algorithms can be frustrating and difficult to follow.

Documentation specialists and coders have their own set of headaches in this area. Identifying the ideal physician query, one that is timely, succinct, and actually gets a response, is the subject of many a conference, webinar or newsletter.  It’s often tough to design a question that is clear and specific but doesn’t suggest a response.

The longer I work in the field of denials management, medical coding and documentation improvement, the more I doubt that the holy grail of clinical documentation ever will be found. But I do think that there are some simple reminders that can help clinicians  improve their documentation skills. Here’s the latest.

Think like a professor, write like a medical student. If we were to combine the thought processes and communication skills that we’ve acquired in our clinical experience with some of the lessons we learned as students, I believe our documentation would improve.

Think Like a Professor

Remember teaching rounds? Skilled professors or attending physicians would guide their students through the thought processes necessary to formulate a differential diagnosis and explain the rationale for decisions and plans. The best teachers had

• An extensive reserve of knowledge
• The experience to anticipate the sequence of events that a workup should follow
• Excellent reasoning to justify their actions; and
• Crystal-clear communication skills that make them easy to understand.

These are precisely the elements that are needed in physician documentation. If only the physician would write down what he thinks is happening with his or her patient, how severely ill they are, what direction he wants his workup to follow, his patient’s anticipated service needs, and why his plans are necessary. Then, the reader of the medical record – be it medical student, colleague, coder or auditor – would be more likely to understand and use the documented information appropriately, according to their individual needs.

Too often, though, the serious consideration that a patient’s care is given simply is not documented.  The quality of care may be outstanding, but the hospital and physician won’t get paid for it. Auditors will claim that “there is no documentation to support the medical necessity of this patient’s admission and continued hospital stay,” and deny the claim.

Write Like a Medical Student

In general, medical students are taught to write progress notes that include at a minimum:

• Patient’s name and date of birth on each page
• Date and time
• Subjective statement – usually what the patient actually states
• Objective statement – vital signs, physical exam with pertinent positive and negative findings, labs, imaging, procedure results and basically anything else that has been objectively determined
• Assessment – number each problem and discuss it: is it stable, improving, worsening? Ideas about its cause? Are other problems complicating it? Have there been any other complications? What has the workup to date told you, and what more might be needed?
• Plan – more testing? More intense services? Does the rest of the workup depend on any pending test results? And why is it necessary to do these things? Justify your decisions.
• Signature (legible, of course), printed name and identification number

During internship, residency and fellowships, we learn more specific documentation standards as determined by our specialty. Thus, surgeons learn procedure and operative notes, OB-GYNs learn delivery notes, pediatricians learn NICU notes, etc. But the fundamental lesson is to document thoroughly, accurately and clearly.

Putting the Two Together

It IS possible for healthcare professionals to write better notes, not only to improve quality of care but also to ensure that they and their hospitals get paid for their work. It is critically important to document daily the severity of the patient’s illness and why they require a particular intensity of services. Medical records need to clearly reflect the provider’s thought processes and justify the patient’s need for services at a specific level of care.

Healthcare providers must strive to write down their professorial thoughts in a thorough (but not necessarily lengthy) student -style format.

About the Author

Cynthia M. Lipsitz, MD, MPH, is a Senior Medical Reviewer with Washington and West, LLC, an appeals and denials management company.  In this capacity she maintains familiarity with current standards of medical care, Medicare and private payer hospitalization criteria and coverage policies.

Contact the Author:  c.lipsitz@washingtonwest.com

Written by Cynthia M. Lipsitz, MD, MPH

There are many of us physicians, and other health care professionals who regularly write notes in medical records, who are not yet fully aware of the relationship between our documentation practices, medical coding, and reimbursement. The complexities of coding and DRG’s are tiresome to busy physicians, so I thought a clinical story might be instructive.

Once upon a time, a surgeon was consulted to evaluate and treat a pressure ulcer. The patient was recovering nicely from the infection and dehydration that brought her in, and the ulcer needed to be treated before she was discharged.

WHAT THE SURGEON DID

The surgeon arrived at the patient’s bedside promptly, photographed the wound and meticulously measured the ulcerated area. He probed it for depth and undermining. At the patient’s bedside, using scissors and forceps, he cut away all devitalized tissue beyond the margins of the ulcer until he could see healthy pink tissue. There was a moderate amount of controllable bleeding. He dressed the wound and wrote detailed orders for continued management.

WHAT THE SURGEON WROTE

“Wound debrided with scissors. Irrigated and dressing applied. Patient tolerated well. Dressing orders written.”

WHAT HAPPENED NEXT

The patient’s attending physician promptly dictated a discharge summary. In Medical Records, the procedure was coded 86.22 “excisional debridement.” A DRG was assigned based on the principal diagnosis, comorbid and complicating conditions, and pertinent procedure. The hospital billed $30,000 appropriately and was reimbursed.

The procedure code 86.22 triggered a government audit. The auditor read the surgeon’s note with the Coding Clinic in mind. The pertinent section states:

“The use of a sharp instrument does not always indicate that an excisional debridement was performed. Unless the documentation describes sharp debridement as a definite cutting away of tissue and not the minor removal of loose fragments with scissors or scraping away of tissue with a sharp instrument, assign code 86.28 (removal of devitalized tissue, necrosis and slough).”

As a result, the government auditors determined that the DRG for this hospitalization should be revised, which dropped the reimbursement amount to $19,000. Sadly, an overpayment of $11,000 was alleged to occur, and this amount was in jeopardy of being recouped by Medicare.

The surgeon, billing separately for his services, was fully reimbursed for an excisional debridement. (However, it is expected by many experts that government auditors will soon be looking to recoup the physician payments for improperly coded and paid procedures.) Sadly, the surgeon never learned of the hospital’s situation, and the next week, the surgeon wrote the same note.

Meanwhile, the hospital appealed this case and was able to finally overturn the excisional debridement denial many months later after an Administrative Law Judge Hearing.

THE MORAL(S) OF THE STORY

If it isn’t written down, it didn’t happen. The surgeon provided excellent care but for whatever reason he didn’t write a detailed note. All of us in healthcare are taught this, but knowledge doesn’t always translate into practice.

What IS written down must be specific. A note doesn’t necessarily have to be lengthy, but it must communicate enough to allow accurate coding. Describe in detail what was done.

If the note isn’t specific, ask the writer. How to query is another topic unto itself, but in a nutshell, do it promptly, simply, and in person, if possible, so you can discuss things for clarification and not have to send notes back and forth.

If the writer isn’t told how to fix things, he’ll do it again. It’s not just the coders’ job to inform physicians, nurses, physical therapists, and others who write notes about poor documentation. Regular feedback from hospital administration will raise awareness of the documentation- to- dollars relationship.

A HAPPY ENDING

Through the methods above, the surgeon learned how to write a better note. In the next patient’s chart for a similar procedure the surgeon wrote:

“Asked to see this patient to evaluate and treat pressure ulcer that was present on admission. Lesion is located in the mid sacrum and measures 2cm x 3cm x 1cm deep. Erythematous margins. There is central yellow slough covering the visible surface. See photograph 1.

Procedure: Informed consent obtained. Pt pre-medicated with Percocet. Using scissors and forceps, sharply cut away devitalized tissue around the entire wound circumference. Cut away central slough using scalpel and forceps down to pink tissue. Probed for tunneling with q-tip – none found. Post-procedure measurements 2.8cm x 3.5cm x 1.3cm deep. Wound irrigated with normal saline. Mild bleeding controlled. Hydrogel dressing placed.

Assessment: stage 3 pressure ulcer, s/p excisional debridement

Plan: Leave present dressing in place and I will assess wound in two days. Continue offloading with air flotation mattress and q2hr repositioning. See orders.”

This case was reviewed by a government auditor, but was not denied. And the patient, doctor, coder and hospital administrator lived happily ever after.

BUT SERIOUSLY…

Procedure code 86.22 affects several DRG’s which in turn affect reimbursement. The June 2008 RAC Demonstration Program report stated that through March 2008, the program found over 6,000 inpatient hospital claims in which overpayments were made for allegedly incorrectly coded excisional debridements (less those overturned on appeal). These claims translated into $66,800,000.00 in alleged overpayments on this one issue. As government audits intensify, the need for complete documentation and accurate coding of excisional debridement cases is important. Heed the morals of our story.

About the Author

Cynthia M. Lipsitz, MD, MPH, is a Senior Medical Reviewer with Washington and West, LLC, an appeals and denials management company.  In this capacity she maintains familiarity with current standards of medical care, Medicare and private payer hospitalization criteria, and coverage policies.   Dr. Lipsitz has reviewed records and observed documentation patterns from a variety of hospitals across the country, and has a heightened understanding of issues that lead to denials.  With over 25 years of experience in ambulatory and hospital medicine, public health administration, and health promotion software development, she brings an understanding of the realities of medical practice and administration to the field of denials management.

Contact the Author:  c.lipsitz@washingtonwest.com

Written by Cynthia M. Lipsitz, MD, MPH

As the senior medical reviewer for Washington and West, a denials management company, I’ve seen documentation errors and omissions that clearly put hospitals and physicians at risk for denials. What’s more, as I review medical records from across the country, I’m starting to see patterns of errors at individual hospitals and by individual physicians . And, if I’m seeing patterns as one lone reviewer, you can just imagine what government auditors are finding.

I strongly feel that most physicians don’t understand the link between what they write in a medical record and what the hospital, and they, get paid. Nor do they understand the very real risks of fraud and abuse charges that can result from patterns of errors.

Understandably, health care providers put patient care first, and we wouldn’t want things any other way. When I’m called to see a patient with chest pain, writing a detailed note is just not the first thing on my priority list. Too often, though, providing excellent patient care is used as an excuse for very poor documentation.

Some physicians feel that writing good notes isn’t their concern – that they have PA’s, NP’s or residents to do the work. Some don’t see the link between quality care and documentation, and think that as long as their patients do well, that’s all that really matters. Of course everyone is stressed for time, and so notes are dashed off all too quickly. And some physicians honestly don’t have the information they need to do a better job of documenting.

The fact is, we physicians haven’t been taught very much about documentation in medical school or training. We usually get a general introduction to writing histories and physicals, and to the problem-oriented medical record. We get some legal tips on documentation practices aimed at reducing professional liability risks. But when it comes to writing detailed notes that justify our medical care decisions, well, that medical school class never happened.

Here are some examples of the documentation errors I’ve seen that translate to denials and dollars:

1. Tops on my list is the lack of justification. I want to say “Tell me, Doc, why does this patient need inpatient care instead of observation? Why does the patient need to stay another day?” Physicians need to remember to use the word “because,” as in “The patient needs to stay another day because his hemoglobin has not stabilized and he continues to complain of dizziness.”

2. Too often problem lists are made, but no diagnoses are suggested, or else the principal diagnosis is not spelled out clearly.

3. Physicians don’t fully explain the impact of co-morbid conditions and complications.

4. Handwritten notes are completely illegible, and times and dates are missing – and finally

5. Electronic medical records are cut-and-pasted without updating.

All of these poor practices can lead to erroneous coding, improper DRG calculations, and denials. What’s more, for those of us in denials management, these practices make it very difficult to write strong appeals.

So, what are hospitals to do? It’s critical that hospital compliance programs hit their marks, and physicians must be part of the process. Hospitals need to approach these issues from several directions by:

1. Regularly reviewing hospital and physician performance statistics

2. Providing physicians feedback with data on dollars lost and denials gained

3. Creating documentation aids, electronic or paper, that make it easy to do the right thing

4. Educating physicians in ways that are simple and direct, and

5. Establishing on-going, short, structured, small -group information exchanges between medical records staff and physicians with everybody leaving their egos at the door

The bottom line is, it takes a multipronged, customized, and creative program to ensure that everyone – including physicians – plays his part to comply with the rules and reduce the risks of denials.

About the Author

Cynthia M. Lipsitz, MD, MPH, is a Senior Medical Reviewer with Washington and West, LLC, an appeals and denials management company.  In this capacity she maintains familiarity with current standards of medical care, Medicare and private payer hospitalization criteria, and coverage policies.   Dr. Lipsitz has reviewed records and observed documentation patterns from a variety of hospitals across the country, and has a heightened understanding of issues that lead to denials.  With over 25 years of experience in ambulatory and hospital medicine, public health administration, and health promotion software development, she brings an understanding of the realities of medical practice and administration to the field of denials management.

Contact the Author:  c.lipsitz@washingtonwest.com

Written by Cynthia M. Lipsitz, MD, MPH

There’s a subject getting a lot of popular interest these days, called behavioral economics.

There have been some suggestions lately that this principle can be very useful in health care; in fact, an article in the Harvard Business Review in March of this year cited behavioral economics as one of the top 10 innovations that will transform medicine in the future.

In a nutshell, BE is based on the fact that we often don’t do what we should, like exercise or eat healthy foods, or, as physicians, document our diagnoses and decisions clearly. But we can be nudged (also the name of a book on the subject) or gently guided into doing the right thing if it’s not too hard to do or it can be made a part of a routine. In other words, we can arrange things so that the easy choice is also the right one.

Using the principles of BE may be one of the ways to encourage improvements in physician documentation, and this is likely to help us reverse denials or even prevent them. As a result there’ll be not only improved patient care, but also an improved bottom line. Very often as a medical reviewer with Washington and West, I see denials that could have been prevented or more easily argued if there had just been better documentation.

So, here are some examples of BE in use in the health care setting:

1. The Harvard radiology department noted overuse of certain costly xray studies that really weren’t in keeping with recommended quality care. So they came up with an automated questionnaire that helps the doctor think through the need for the test, or for another one. As a result, the rate of ordering the test was decreased, even as the volume of patients increased.

2. In another example, at Dartmouth-Hitchcock Medical Center, standardized orders were created for cases of pneumonia that developed out in the community. These orders follow well-thought-out consensus guidelines by expert groups, like the Infectious Diseases Society of America and the American Thoracic Society, and they were also met Joint Commission and CMS quality performance guidelines. The ordering physician checked off the orders that they felt applied to their patient. They found that this improved compliance with guidelines and decreased lengths of stay and patient deaths. In other words, they made it easy to do things right.

3. At WW, we found that at one hospital there was a clear link between denials and the attending physician on the case. We didn’t do a formal study, but we did find that feeding this information back to docs and administrators in a de-identified manner, especially info on the dollars lost, really opened their eyes to what’s at stake when a case is denied. We suspect that most doctors aren’t aware of the impact of their insufficient practices on the bottom line. when for example they write a diagnosis of heart failure vs. acute systolic on chronic diastolic heart failure in terms of DRG determinations.

Considering how complex medicine is these days, and how much there is to consider when making patient care decisions, I’m definitely in favor of any help I can get to make the right choices. But it’s critical to acknowledge that each patient is different, and that in the final analysis the patient’s doctor is really the person who knows that patient best. So, it’s critical to assure doctors that they are not being required to practice “cookbook medicine,” that is, to be forced to follow a set of general steps that might not fit their patient’s needs.

To me this means that any guidelines or standard order sets must allow for alternative options that a doctor can choose. AND there must also be required documentation of why that alternative choice was right for the patient– as I wrote about previously in the RAC Monitor, the most important word in medical documentation is “because.” If we can’t document why we made a decision, it’s as if we made no decision at all.

Finally I just want to say that, more and more, funds are being tied to doing things smarter – making better choices of tests, better use of antibiotics, etc and not to doing more things as in the past. Not only that, but now there’s increased scrutiny for fraud and abuse. If a hospital can adopt practices or technology that will make doing the right thing easier, we think that they’re likely to see fewer denials.

About the Author

Cynthia M. Lipsitz, MD, MPH, is a Senior Medical Reviewer with Washington and West, LLC, an appeals and denials management company.  In this capacity she maintains familiarity with current standards of medical care, Medicare and private payer hospitalization criteria, and coverage policies.   Dr. Lipsitz has reviewed records and observed documentation patterns from a variety of hospitals across the country, and has a heightened understanding of issues that lead to denials.  With over 25 years of experience in ambulatory and hospital medicine, public health administration, and health promotion software development, she brings an understanding of the realities of medical practice and administration to the field of denials management.

Contact the Author:  c.lipsitz@washingtonwest.com

Written by Linda Fotheringill, Esq.

When it comes to RAC preparedness, one of the greatest challenges facing hospitals is obtaining physician cooperation for denial prevention purposes. Physicians understandably do not want to be told by anyone else how to practice medicine, and physicians probably do not yet understand the potential devastating financial impact of failing to adequately document compliance with Medicare criteria. So how can those responsible for Medicare compliance and the financial integrity of their facility ensure the necessary physician cooperation to change physician behavior?

The key for obtaining the necessary physician cooperation is Education. Yes, I mean Education with a capital E. Not a series of memos or a few conferences, but a campaign of ongoing Educational programs that will require efforts beyond what your facility has previously put forth. After all, we are in a new era with CMS. New times call for new measures. If your facility depends on CMS dollars, your facility must ensure that revenue opportunities are not lost due to inadequate physician documentation.

Every Hospital has a unique culture and set of resources. Yet whether your facility grows your Physician Education program from within, or with the help of consultants and vendors, multiple modalities will be required. Following are two important keys to success:

#1: Develop a Medicare Management Tool that Reports Denials at the Physician Level

In the RAC Demonstration project, the Claim RACs reported that 40% of all “overpayments” were due to alleged medically unnecessary services. In my experience with successfully appealing many of these denials, I have found that the services were actually medically necessary, but the physician documentation was less than ideal in communicating the need for the services. Hence, many denials are not overturned until the Administrative Law Judge level. (An area of particular confusion is the Outpatient vs. Observation vs. Inpatient status).

An excellent way to determine where to target educational efforts is to simply sort and compare data on audit results or denials by responsible physician. The cost of every physician’s denied claims can be tabulated, and the results can be quite motivating for all involved in denial prevention.

#2: Involve Treating physicians in the Appeal Process to the Fullest Extent Practicable

This part is a bit tricky. As a general rule, physicians do not have the requisite training and experience to determine how to best evaluate and present a case in the appeal process. Furthermore, they may not have the time or inclination, as their focus is understandably the practice of medicine. However, with respect to inspiring physicians to change their medical record documentation practices, I have found that physicians learn best by getting involved with actual examples of less than ideal medical records via the appeal process.

One methodology for minimizing the effort and expertise required by physicians is to use a team approach for the appeal process. For instance, a denied claim can be analyzed first by those with expertise in Medicare criteria and techniques of best practice appeal presentation. The physician does not need to be consulted at this stage unless there is need for clarification. If a meritorious claim is not overturned at the Redetermination or Reconsideration level, then the physician (or Medical Director of the facility) should be brought in to testify at the Administrative Law Judge Hearing level. The physician will have the benefit of the analysis already prepared, and the Hearing process will enable the physician to learn first hand what is required for a medical record to clearly communicate the necessary elements for medical necessity.

Written by Linda Fotheringill, Esq.

I can be crystal clear about one thing; no one should participate in claims or billing practices that are abusive or fraudulent. First of all, it’s just wrong. Also, let’s not forget the punishment that can be imposed by the federal government when an individual or hospital is considered guilty of fraudulent practices. We’re talking a range that goes from restitution, to treble fines, to exclusion from participating in the CMS programs, to imprisonment. (Yes, that’s right, there have been Hospital executives that have spent time in the big house.)

So why do I bring this unpleasant subject up? It’s because of the mounting frenzy of RAC preparedness that includes aggressive self-auditing to uncover all potential problem areas. Hence, the title for this piece. Let’s make no mistake about this point; when an improperly billed claim is discovered through any auditing means, the matter should be self-disclosed. Pure and simple.

The not so simple parts are:

1) What is the right amount of auditing for CMS compliance purposes, and

2) What should a Provider do when there is a question on any given case as to whether CMS criteria for medical necessity have been met?

Let’s start with question #1.

Questions regarding the right amount of auditing for CMS compliance purposes are arguably answered for the most part in The Office of Inspector General’s Compliance guidance for Hospitals, released in 1998, and Supplemental Compliance Program Guidance for Hospitals published in the Federal Register, Vol.70, No.19, January 31 2005. The suggested compliance program is not mandatory. However, to my knowledge, (even before the advent of the RACs) wise and responsible hospitals have implemented compliance programs that follow the many recommendations of the OIG.

With respect to auditing, the Supplemental Compliance Program Guidance asks the following:

•  Has the hospital developed a risk assessment tool, which is re-evaluated on a regular basis, to assess and identify weaknesses and risks in operations?
• Does the risk assessment tool include an evaluation of Federal health care program requirements, as well as other publications, such as the OIG’s, CPGs, work plans, special advisory bulletins, and special fraud alerts?
• Is the audit plan re-evaluated annually, and does it address the proper areas of concern, considering, for example, findings from previous years’ audits, risk areas identified as part of the annual risk assessment, and high volume services?
• Does the audit plan include an assessment of billing systems, inaddition to claims accuracy, in an effort to identify the root cause of billing errors?
• Is the role of the auditors clearly established and are coding and audit personnel independent and qualified, with the requisite certifications?
• Is the audit department available to conduct unscheduled reviews and does a mechanism exist that allows the compliance department to request additional audits or monitoring should the need arise?
• Has the hospital evaluated the error rates identified in the annual audits?
• If the error rates are not decreasing, has the hospital conducted a further investigation into other aspects of the hospital compliance program in an effort to determine hidden weaknesses and deficiencies?
• Does the audit include a review of all billing documentation, including clinical documentation, in support of the claim?

So to answer the question of how much auditing is necessary, a hospital should carefully consider whether their hospital has a Compliance Program in place that has been following the recommendations of the OIG. If so, it might not be necessary for the Hospital to undertake additional auditing measures specifically in preparation for a RAC audit, and additional resources can be focused on compliance prospectively. On the other hand, if you do not have a robust Compliance Program in place, now is a very good time to start.

Now, for Question #2. What should one do when there is a question on any given case as to whether CMS criteria for medical necessity have been met?

This is a situation that will arise frequently because Medicare criteria and documentation requirements are very often subjective and therefore open to interpretation. For example, Medicare’s Inpatient Rehabilitation “screening” criteria cannot be relied upon to deny a claim. Rather, Medicare states:

For determinations about reasonableness, medical necessity, and appropriateness of setting, the QIO’s physician reviewer is expected to make a determination on the basis of their knowledge, expertise and experience, and upon an assessment of each beneficiary’s individual care needs rather than a fixed criteria.

Given the subjective nature of medical necessity criteria and the unique circumstances for each patient, reasonable minds can differ as to whether a case meets criteria. To illustrate this point, consider the fact that to date, 34% of the cases appealed in the RAC Demonstration project have been overturned – mostly at the FI/Carrier and QIC levels. [1] My point is that the same case can produce differing conclusions – often depending on just who is conducting the review and how the case is presented.

Another illustration of just how difficult it can be to ascertain whether medical necessity criteria is met is my recent experience conducting a clinical appeal writing workshop for experienced nurses. We utilized an actual case of a denied inpatient admission for a patient that presented to the ED with chest pain. (PHI was carefully redacted of course.) The FI indicated that Observation was appropriate rendering the inpatient stay ‘not medically necessary”. Our group of experienced nurses concluded that the Chest Pain decision tree tool developed by a QIO was not very helpful, and the group split evenly on whether the case met inpatient criteria. (Interestingly, this particular case was ultimately won by the Provider at the Administrative Law Judge level.)

So, given the subjective nature of medical necessity determinations, when there is uncertainty about any reviewed or audited case, a second opinion may be helpful. The organization or individual rendering the second opinion should have expertise and experience with Medicare criteria and the Medicare appeal process.

1. Only a small fraction of the appealed cases were taken through to the Administrative Law Judge Level, and there is no data of which I am aware that explains this fact. However, anecdotal evidence suggests the reason may have been related to lack of expertise and resources rather than a lack of belief in the merits of the appealed case. I believe that the number of overturns would have been much higher had most of these cases been appealed all the way through to the Administrative Law Judge level. My firm’s experience is a success rate in the 68% to 100% range, although we generally must go all the way to the Administrative Law Judge to get a fair consideration of the case. There, the provider must prove the medical necessity and/or compliance with Medicare criteria by a preponderance of the evidence.