Medical Billing Forum

General Category => General Questions => Topic started by: RichardP on January 27, 2013, 12:19:57 AM

Title: Fraud and Abuse - Coda
Post by: RichardP on January 27, 2013, 12:19:57 AM
re.  http://www.medicalbillinglive.com/members/index.php?topic=7000.0

In the thread linked to above, it appears that I should have been more obvious about the end-point I was making.  I will do that here.  This is not an attempt to keep the linked thread alive, so Linda may want to block this thread as soon as she reads this post.  If you respond before Linda blocks this thread, please just share your own experiences and don't bash other people's experiences.

Lest there be a question in anybody's mind, I do not recommend keeping a client that consistently
codes with obvious intent to defraud or abuse.

But real life is filled with shades of grey.  Many issues in billing are not quite so obvious as a client
who consistantly codes with obvious intent to defraud.  Example:  California has laws on its books
banning shared labs.  So, if my clients demonstrate that they are using a shared lab, I should send them packing, right?  Well, maybe not.  California has a law on its books banning shared labs, but it does not enforce this ban.  Go by what the lawyers say?  Well, some say shared labs in California are illegal, so don't use them; others say it is OK to use them until the State starts enforcing its own law.  Which lawyers should I pay attention to?  This is a real-life situation that I have been required to address.  As a biller, how would you choose to act in this situation (rhetorical question; please don't answer)?  At least 51 shades of grey.  Do you have any idea how many laws there are on the books at the state and Federal level that are not enforced?  In real life, businesses don't obey laws just because they exist.  They obey laws that are enforced.  Laws are governments' answer to the question asked by its citizens: "how, then, shall we live our lives?"  If a specific law is important to the government, they will enforce it.  If they don't enforce that specific law, they are telling the citizens that that particular law doesn't matter.  This is the real-life arena (not theoretical arena) in which business operates. 

To reduce this to being only a matter of ethics is simplistic.  Most of us want to do the right thing.  That is not an issue.  The difficulty is in figuring out what the right thing to do is.  Particularly when
different lawyers give different answers.  As a final example of this shades-of-grey principal in action, consider that a Republican president would not have the power to overturn the ACA (Obamacare).  The conventional wisdom was that the Republican president, if elected, would not try to overturn the ACA.  He would just grant exemptions to the states telling them they did not have to abide by the law of the ACA.  In other words, the law would be on the books, but the President would not enforce it.  Unethical?  Or just the pragmatic way our society operates?  So it is going to be between you and your clients.

The intent and force of a law is not apparent in looking at who gets charged for what (many get
charged; not all who get charged are convicted).  The intent and force of the law is apparent only in looking at who gets convicted or exonerated and for what.  To make points with the jury and judge in court proceedings, lawyers refer to precedent set in relevant previous cases.  The lawyers do not refer to cases where someone has been charged; rather, they refer to cases where someone has either been convicted or exonerated on a point similar to what is before the current court.  Likewise, we should not get sidetracked by who has been charged for what.  We should be interested only in who has been convicted or exonerated for what.  Only the convictions tell us what the law intends.  The charges tell us nothing.  In this respect, personal opinions are irrelevant.  It is the convictions and/or exonerations in court that tell us what we need to know.

Over time, I have Googled on "medical biller" + conviction .  The only hits I get are for doctor and
biller who have been convicted of colluding to defraud a payer.  In these cases, the court has
provided enough evidence to jury and judge to convince them of intent.to collude for the purpose of defrauding.  Therein lies the logic behind not keeping a client that consistantly codes with obvious intent to defraud.  The court has to prove intent to collude and defraud.  They do that mainly by pointing to the considerable number of times the doctor and biller have submitted claims that defraud the payer.  Whether the biller knows or doesn't know that the coding is fraudulent is irrelevant to the court at this point.  If the court proves its case to the point of conviction, the conviction is based on the evidence of the number of times claims were submitted that defrauded the payer.  At this point, the court will conclude that the sheer number of fraudulent billings should have alerted the biller that something was not right.  Because of the large volume, the biller should have known (this is where "ignorance is no excuse" rears its head).  This logic is going to be a problem for those billers who do not know enough to recognize that the doctor is billing fraudulently .  And this is the logic behind why the OIG does not impose the force of law on a biller.  The OIG cannot know whether you know that your client is billing fraudulently, and it cannot require you to look at a patient's chart before you submit their bill, so it cannot impose a law on you.  But it does know that a biller can get convicted by a perponderance of evidence as just described above - regardless of whether they were aware - so it makes it's recommendation.  The OIG is simply saying the obvious - "Biller, be smart.  Don't play with fire.  Look out for your own best interests.  Inform yourself."

The point in the previous paragraph, regarding whether the biller knew, is modified by the fact that, in most (maybe all?) of the convictions that I have found, the biller was getting some kind of kickback from the monies obtained fraudulently.  In the eyes of the court, that fact adds to the "proof" that the biller was knowingly colluding with the doctor.  If the court cannot prove that the biller was getting some kind of kickback from the monies obtained fraudulently ... ?

Pay attention to the regulations, but don't get freaked out by them.  Educate yourself enough that you can recognize a client who is obviously trying to consistently defraud a payer(s).  And then make the educated choice about whether you want to be tied to that client and that fraudulent behavior in court under a charge of collusion with intent to defraud.  Generally, the ocassional "mistake" is not going to bite you.  It is the consistent behavior over time that will either prove or disprove the court's charges against you to the jury and judge.

Don't submit what I've said here to someone else to "see what they think".  Go find cases where the biller has been convicted and see what was going on that led to the conviction.  See if the "facts" that led to the conviction are consistant with what I have said here.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on January 27, 2013, 10:54:47 AM
I just want to say that I do indeed get what your saying, I never didn't understand it from the beginning.  You however seem to focus on that word "conviction" and that's fine, but for myself and a lot of others, I tend to not want to GET to a point where the word "conviction" is a reality. We are in the good Old USA and that means ANYONE can take ANYONE to court for ANYTHING and well, this is where my thinking becomes a little bit different and I tend to weigh on the side of "caution". As my mother always said "Better safe than sorry".    You can point all the legal jargon you want. (I'm also a paralegal and know healthcare law myself) I'm never going to agree that turning a blind eye is correct in any situation.  I'm NOT speaking of things in and proved by the medial record. I have agreed that billers are not responsible for errors that depend on the billing record, as that indeed is not our job to go through the medical record. That is for the CPC and the physician.  I do know there are indeed laws/regs in place that never get enforced, I wasn't sure by your post on your position but mine would still be the same. Rather safe than sorry. You see, I don't WANT to even get to the court room door or the process server at the front door.   I also will NOT agree with you that the court has to find "intent" that's not true in false claim cases. I worked in the fraud department at the last insurance company I worked at. In the 5 years IN that department the flagged files we sent to legal were prosecuted at a 96% success rate and NOT all of them were proven with "intent to defraud".  Once could argue that a biller wanted to just receive the maximum reimbursement for their client to make him happy, she / he may not have intended to "commit fraud".  The law still applies that there are things we are trained to know and the law says if you send claims, YOU should know.   Sitting here arguing on whether a biller has legal responsibility seriously is nonsense and I won't do it anymore. I would rather have professional ethics and ASSUME the liability as I should, do my job the right way to ENSURE the words "Lawsuit" and "conviction" don't even enter the equation.    Also I think it's VERY important to note that the term "conviction" is one used in a criminal case..  You can't assume all wrong doing and responsibility is all criminal in nature.. there's the words "lawsuit", "judgement", "legal fees".    By Gayle's account no one can touch a medical biller as long as she's doing the right things, right?   Sorry but that is FANTASY land.

http://judicialview.com/Court-Cases/Damages/Restitution-Remanded-in-Fraudulent-Medical-Billing-Conviction/34/13006
"Szyrej and Williams worked as employees of Rohira, a psychiatrist. All three were charged with illegally billing the federal government’s Medicare and Medicaid programs, as well as a number of private insurance companies, primarily at the direction of Rohira. Specifically, the indictment charged Rohira, Szyrej, and Williams with “upcoding” (billing for full therapy sessions when only medicine checkups were provided),"

Specifically with upcoding by billing full sessions when only med checks were done.      Hmmm.. seems to me that would only be proven by the medical record documentation, something the biller could have used in their defense unless they admitted their "intent"? 

I also wanted to again point out that Gayle's statement several times indicated the provider is ULTIMATELY responsible.. in HER theory the medical biller can never be touched unless there is something blatant, however she still maintains the provider should KNOW what's going on in their practice.. that would mean losing valuable time with their patients to be over the shoulder of their biller?  Take this case where the provider was not indicted at all and the biller was. By her account the provider should have known.. and I would think given the time frame it was going on.. I think that provider did know SOMETHING was amiss if they cashed the checks ? maybe maybe not.

http://www.wachlerblog.com/2012/02/medical-billing-professional-sentenced-to-prison-for-defrauding-medicare-and-medicaid.html


The fact that we have to argue over this really isn't something I would want a physician to see. The best resolution for everyone is to do what they need to do, consult with their own attorney, and if you find ONE attorney that tells you.. "Na.. you just do what you are told and you will be just fine" .. be sure you've got a retainer to seat them by you in a court room, not just to defend you from a "conviction" but to defend you against a lawsuit and / or a "judgement" from that lawsuit.   
Title: Re: Fraud and Abuse - Coda
Post by: tallmanusa on January 27, 2013, 12:12:10 PM
Can all of this be avoided by the billing company NOT doing the coding?
Athena Health which has about 40,000 providers does not do any coding, the client does that. The billers are barred from changing any code. They don't have any problems managing thousands of clients, and here there are problems with managing a handful.
I plan to follow the same principal.
And why do the billing companies do the coding to begin with?
In my research, I did not find even one single large company that did the coding.
It is a dangerous area and I see no reason for the biller to do it. I think Linda's caution is well taken.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on January 27, 2013, 03:11:10 PM
Quote
Can all of this be avoided by the billing company NOT doing the coding?
Athena Health which has about 40,000 providers does not do any coding, the client does that. The billers are barred from changing any code. They don't have any problems managing thousands of clients, and here there are problems with managing a handful.
I plan to follow the same principal.
And why do the billing companies do the coding to begin with?
In my research, I did not find even one single large company that did the coding.
It is a dangerous area and I see no reason for the biller to do it. I think Linda's caution is well taken.

I don't code at all. HOWEVER as a medical biller, I am absolutely required and responsible to KNOW what I'm billing out. Anyone that tells you that you don't need to have a general understanding of coding and modifier use is lying to you. When I was a claims examiner my job was to KNOW what I was looking for, I did NOT code, but I had to be aware and have a general understanding of the codes and their use.   

A biller could be given a charge slip for which an OBVIOUS error is spotted, maybe a modifier is missing, maybe the wrong code is used and is obvious and maybe it was a code deleted. Point is there are SOME things we are required to know and do NOT need the medical record to spot it. Suppose we do find a code that appears to be "upcoded" I know for me if I see something that raises my flags I will ask to see the record unless it's THAT obvious it's incorrect.  I then will review, send it to my client with my recommendations and inform the client of the problem/error.   IF the client is not open to changing it, I don't bill it. It's really THAT simple. That is where my BUTT is on the line because I KNOW it's wrong. IF my client is adamant about it being correct, that is one thing and additional research WILL be done. IF however they know it's wrong but have instructed me they want it billed anyway, then we have a problem and that is where I will turn to my compliance plan and take necessary action. 
Title: Re: Fraud and Abuse - Coda
Post by: QueenAlicia on January 28, 2013, 03:19:47 PM
I think the thread was informing and amusing.  We all have different opinions but I think it may caution someone to check their facts (no one in particular) if they are going to debate among others who have in business for a while or who know the laws.  I have read several articles in regards to billers getting in trouble for numerous reason.  Do I have time to cite these article, uh no, and I won't because it's up to one person to find it on their own and educate themselves.  Thank you Linda and Richard for sharing that information.

It's okay for us to debate but leave the emotions somewhere else and stop getting all butt hurt  ;D
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on January 29, 2013, 12:58:54 PM
Linda, I have no disagreement in general with what you say.  I do think it is important for prospective and new billers to understand that things will not always be black and white.  The bane of adult living is that we often are forced to make choices in the absense of perfect information.  Erring on the side of caution is a commendable behavior.  My larger point is - what do you do when in a situation where you don't know on which side caution lies?  That was intended only as a "heads up" in passing.  I didn't mean for it to become it's own subject of debate.

The following points about the two links you provided are intended only as follow-up and are not intended as fodder for further debate:

Linda, in the first link you gave, the charges covered the period from / the relevant conduct took place between approximately July 1991 and September 1997.  That period of time could not have been defined unless someone actually looked at the coding and then at the charts to see if the record supported the coding (court and billers are not supposed to make up charges out of thin air).  They obviously found that the record did not support the coding at least between those two dates.  The period of time was long enough, and the data points of discrepancy between chart and coding were numerous enough, that the court could conclude the occurance of the discrepancy was greater than chance.  Therefore, if not chance, then intentional.  Intentional = intent.  The court did find intent in your example.

Re. the second link you gave:  In the closed thread, I stated that I was exluding from my discussion those cases where the biller was intentionally billing charges for procedures that the doctor did not perform.  This is obviously illegal, and is also obviously the fault of the biller alone.  There would be no question of guilt on the part of the doctor, because he did not perform the procedures, and he did not supply the codes, that the biller billed for.  Linda, the case re. Delgado, Solis, and Rael fits into this category - and is therefore not suitable for using to debate any points that I made.  I specifically excluded this category of illegal behavior from what I was discussing, because it is so obvious who the guilty party is.  A quick scan through the opening paragraphs at this link will demonstrate that Delgado was intentionally billing for services the doctor did not provide.  Also, please note that all involved were found guilty, doctors and biller.

ftp://opinions.ca5.uscourts.gov/byDate/Jan2012/Jan19/10-50726-CR0.wpd.pdf

     From this and other evidence, the jury could readily infer her criminal intent to commit
     healthcare fraud and make false statements relating to health care matters.

     (bottom of Page 7)

http://www.namfcu.net/resources/medicaid-fraud-reports-newsletters/2010-publications/10JulyAug.pdf  [see Page 21]

Attorney General Abbott announced on July 27 that Sylvia Delgado was sentenced in federal court to 51 months incarceration and three years supervised release and Robert Rael was sentenced to 24 months and three years of supervised release. They were ordered to pay $1.4 million in restitution to the Medicaid and Medicare programs. Dr. Solis and Delgado were found guilty in September 2009 of providing false statements relating to health care matters and Delgado was also found guilty of health care fraud and conspiracy to commit health care fraud. Robert Rael pleaded guilty to two felony counts in September 2007. (See: Medicaid Fraud Report, September/October 2009, pg.2).
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 08:34:05 AM
Very interesting read.

I have a question concerning a client. We do not code. We never enter anything other what is given us. If something obviously wrong we do bill it. We do NOT bill Medicare patients for non-cover services without an ABN. We charge a % of collections which is OK in our state. I employee 30 or so billing clerks who report to 2 supervisors who report to a manager.

What is my exposure for a client who sends us mostly level 5 visits? The client is a neurological sub-specialist with a low volume of patients. We have never seen a medical record. When we have a request for records we send the insurance form to the practice (at their request) and they attach the record and send to the carrier. 

Thank for your responses in advance.


Edited to add NOT
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 09, 2013, 09:48:35 AM
THE best person to ask that would be an attorney. I'm just going to refrain from any type of legal advice all-together. FOR me taking MY attorney's advice works for me because it's the safest and surest way to keep my butt out of trouble. I also do carry proper E/O (Quai Tam) insurance as an added layer.  I take the position that if I KNOW there's something not right and I bill it anyway, I'm libel because I know of the error/fraud/abuse. I have a special "out" clause in my contract that states I can terminate a contract WITHOUT notice if I suspect any fraud/abuse or if a client is unwilling to make corrections where they need to be corrected. If I receive a charge to bill out and I spot an error or problem from the information I Receive, I give the provider the charge back and according to my own compliance plan the procedure is that the provider makes the change, initials it and documents his own records as well with the correction.    This is how I roll :)

DO consult your own attorney or legal counsel to give yourself the assurance you need. Also make sure you really look at your E/O policies, and compliance plan as well as any policies/procedures you have in place. Because you have employee's its imperative (LOOK Richard, I didn't say Legal) to have a good compliance plan and policies procedures so you are all on the same page. 
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 09, 2013, 09:58:35 AM
Edit:  Linda - you posted as I was typing this.  We are on the same page.  /Edit

Gary - you need to have any legal questions answered by a health-care attorney who is familiar with the regulations of your state.  This link will help you find one if you don't already have one.

http://lawyers.findlaw.com/lawyer/practice/health-health-care-law

Do you receive codes from your clients electronically, or do you receive them on paper and have your clerks type them into your billing system?  Those logistics are going to govern what you can do, never mind what you should do.  I turned down a client who uses G.E.s Centricity system for several reasons - and a major reason was this:  the EMR part of that system sends codes electronically to the PM part with no way for the billers to send the codes back to the EMR part for corrections.

You said:  If something obviously wrong we do bill it.

Wrong, as in incorrect (e.g., OB/Gyn codes for a heart procedure)?  Or wrong, as in illegal?

You said:  We do bill Medicare patients for non-cover services without an ABN.

Some relevant points to keep in mind.  It is the doctor's responsibility, not yours, to use the ABN when necessary.  The biller is not required to examine the patients chart before billing to see if it contains support for the codes submitted to you by the doctor.  If you are receiving codes electronically, how can the ABN be included?

You said:  What is my exposure for a client who sends us mostly level 5 visits?

What do you mean by exposure?  Do you mean, can you be held legally liable for overuse of the Level 5 code?  That would be a question for your health care attorney to answer specifically.  But generally, do you have specific knowledge that your client is billing Level 5 for visits that are not Level 5?  If your answer is yes, then I would strongly urge you to get a response from your health care attorney.

If you are interested in further information, you might Google on "Level 5 visits".  That will get you to links such as these two:

http://www.medicalbillingandcoding.org/blog/leveling-up-to-level-5-visits-part-1-of-2-99205-coding-and-compliance/

http://www.physicianspractice.com/level-5-part-ii
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 11:16:29 AM
Edit:  Linda - you posted as I was typing this.  We are on the same page.  /Edit

Gary - you need to have any legal questions answered by a health-care attorney who is familiar with the regulations of your state.  This link will help you find one if you don't already have one.

http://lawyers.findlaw.com/lawyer/practice/health-health-care-law

Do you receive codes from your clients electronically, or do you receive them on paper and have your clerks type them into your billing system?  Those logistics are going to govern what you can do, never mind what you should do.  I turned down a client who uses G.E.s Centricity system for several reasons - and a major reason was this:  the EMR part of that system sends codes electronically to the PM part with no way for the billers to send the codes back to the EMR part for corrections.

You said:  If something obviously wrong we do bill it.

Wrong, as in incorrect (e.g., OB/Gyn codes for a heart procedure)?  Or wrong, as in illegal?

You said:  We do bill Medicare patients for non-cover services without an ABN.

Some relevant points to keep in mind.  It is the doctor's responsibility, not yours, to use the ABN when necessary.  The biller is not required to examine the patients chart before billing to see if it contains support for the codes submitted to you by the doctor.  If you are receiving codes electronically, how can the ABN be included?

You said:  What is my exposure for a client who sends us mostly level 5 visits?

What do you mean by exposure?  Do you mean, can you be held legally liable for overuse of the Level 5 code?  That would be a question for your health care attorney to answer specifically.  But generally, do you have specific knowledge that your client is billing Level 5 for visits that are not Level 5?  If your answer is yes, then I would strongly urge you to get a response from your health care attorney.

If you are interested in further information, you might Google on "Level 5 visits".  That will get you to links such as these two:

http://www.medicalbillingandcoding.org/blog/leveling-up-to-level-5-visits-part-1-of-2-99205-coding-and-compliance/

http://www.physicianspractice.com/level-5-part-ii

Sorry, meant to say we do NOT bill without an ABN. We do NOT bill anything that is obviously wrong. We run a clean and ethical operation.We receive the charges on paper. We have never seen a medical record from the practice. The only knowledge of the E & M codes are they are mostly 5's. This practice treats very acute conditions so it is possible the levels are 5's.

I am consulting an attorney next week. I was looking for trade experience also. The client is under investigation by the OIG/FBI. The OIG may be thinking we were complicit.

Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 09, 2013, 01:04:13 PM
Quote
Some relevant points to keep in mind.  It is the doctor's responsibility, not yours, to use the ABN when necessary.  The biller is not required to examine the patients chart before billing to see if it contains support for the codes submitted to you by the doctor.  If you are receiving codes electronically, how can the ABN be included?

I gathered he meant that he DOES get ABN, but I wanted to just touch base on something. FROM a NON legal perspective, it is indeed the responsibility of the front office staff in collecting and gathering all relevant information needed for billing purposes. The ABN is one of them. The next level is indeed it is a billers job to KNOW what services an ABN is required. My OM's always send me a copy for my files. If I see a charge that needs an ABN ( ha ha.. no more ABN's for me. no more Medicare! :) )  it's MY job to make sure the staff got one.    Again, this is NOT a legal perspective but this is the correct procedures.   Billing companies have a choice in offering services, if they contract to do FULL practice management, certain functions indeed are their responsibility.   I know this was offtrack.
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 09, 2013, 03:58:10 PM
We do NOT bill anything that is obviously wrong.

... we do NOT bill without an ABN.

gary - I wondered if that was what you meant, based on your wording.

The client is under investigation by the OIG/FBI.

The first link I gave you above adresses exactly that.  The OIG has stepped up its investigation of consistently high levels of coding.  We have clients who are specialists who consistantly code high, but the chart documentation supports it and they are OK.

Re. the ABN (Advance Beneficiary Notice of non-coverage), for those who might not know:   Medicare does not pay for all procedures / services the patient might request and/or the doctor might order.  If the doctor does the procedure, and Medicare denies payment, the doctor can not charge the patient for that procedure unless - before the procedure was done - the patient has signed an ABN acknowledging that Medicare might not pay, so they will pay if that is the case.  Page 4 at the following link gives more specifics.

http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/abn_booklet_icn006266.pdf

Note that the language there says You must issue the ABN when: 1.) .... 2.) Medicare usually covers the item or service, and 3.) (the doctor thinks) Medicare may not consider it medically reasonable and necessary for this patient in this particular instance.

Linda - you defined exactly how we operate re. ABN's.  We also notify our clients when an ABN is necessary but has not been provided.  And, like you, we see that as a service we provide our clients.  You said it is a billers job to KNOW what services an ABN is required.  In the main, I agree with that.  But note in the language quoted above, the pivot point is what Medicare considers medically necessary.  It is not just that there is a list of codes we have to memorize where Medicare will not pay (although that list does exist).  The list must be made up of those codes that Medicare normally pays, but may not pay in this case because Medicare determines that the procedure was not medically necessary.  We have found that it is not always possible to correctly guess when Medicare is going to deny something because it was not medically necessary.  So we err on the side of caution.

Note that the ABN is an issue only if the doctor intends to charge the patient for the procedure if Medicare does not pay.  If the doctor does not intend to charge the patient if Medicare denies payment, if he is simply going to write off the charge, the ABN is not an issue.  That translates into this:  if Medicare denies payment for a charge that the doctor has not given us a signed ABN for, we automatically write off the charge, no questions asked.  Medicare denied payment, patient was not billed, no question at all of whether there are legal issues involved.  The patient is not billed and that ends it.
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 05:41:54 PM
Provided that everything  else is perfect, does an abnormal E&M cause concern in a specialty practice?
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 09, 2013, 06:01:01 PM
gary - if you have not yet read through the two links I provided above re. Level 5 coding, it would benefit you to do so.  Both links emphasize the point that there is nothing incorrect about coding at any particular level - so long as the documentation in the chart supports it.

That would be the general answer to the question you just asked about abnormal E & M.  But what do you mean by abnormal?
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 06:12:32 PM
gary - if you have not yet read through the two links I provided above re. Level 5 coding, it would benefit you to do so.  Both links emphasize the point that there is nothing incorrect about coding at any particular level - so long as the documentation in the chart supports it.

That would be the general answer to the question you just asked about abnormal E & M.  But what do you mean by abnormal?

We bill exactly what we are given. No more or less. OIG is implying we should have known better since the practice is mostly level 5's.

Edit to add: We do NOT code the charges.
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 09, 2013, 07:32:49 PM
OIG is implying we should have known better

Has OIG suggested what you should have done differently?
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 07:36:26 PM
OIG is implying we should have known better

Has OIG suggested what you should have done differently?

No.
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 09, 2013, 07:38:38 PM
Keep us posted on how this plays out.
Title: Re: Fraud and Abuse - Coda
Post by: gary999 on February 09, 2013, 07:45:21 PM
Keep us posted on how this plays out.

I will.

Very chilling. We run a very ethical business.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 10, 2013, 10:47:05 AM
Note that the ABN is an issue only if the doctor intends to charge the patient for the procedure if Medicare does not pay.  If the doctor does not intend to charge the patient if Medicare denies payment, if he is simply going to write off the charge, the ABN is not an issue.

Isn't the provider required to "attempt" to collect?  In the Beneficiary options of the ABN they select one, they are told they are "financially responsible'' Granted Medicare is not the same as a commercial carrier, however they still have cost sharing and beneficiary provisions to follow.

In for example the patients Medicare Handbook it says they are responsible for all out of pocket and non covered items.

When I was dealing with Medicare, the procedure we followed was based on our policies/procedures. If one provider had a policy to collect financial hardship than that is what we did. We did not routinely discount or waive patient responsibility no matter the insurer.  IF it's not prohibited, I would suppose a provider could have a general policy to waive ALL fees if there is an ABN and Medicare has not paid (or will not paid)   But isn't this ONE of the reasons the ABN is used, not just to protect the beneficiary and procedure to Medicare but it's there to protect the financial interests of the provider.   If your provider intends NOT to charge a patient is there a general policy to do so? Or do you do it on a case by case basis? Financial Hardship? Why wouldn't the provider get a signed ABN?

Don't misunderstand, I'm not actually saying it can't be done. I'm asking what the difference would be between a Medicare patient and a patient with a commercial (par or non par) that requires patients pay their out of pocket/cost sharing. Since non covered charges ARE a part of cost sharing I am just curious as to how physicians can "routinely" waive these.  Just seems iffy to me. Does your provider have this procedure standard for all? or does he do it for certain ones?  That's the part I'm questioning.

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if Medicare denies payment for a charge that the doctor has not given us a signed ABN for, we automatically write off the charge, no questions asked.  Medicare denied payment, patient was not billed, no question at all of whether there are legal issues involved.  The patient is not billed and that ends it.

Again, I don't want you to misunderstand, I get that you are only writing off the ones you did NOT get an ABN and that would be correct. 
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 10, 2013, 12:22:24 PM
If the doctor does not intend to charge the patient ...

I was making a theoretical point to help clarify what is going on with ABNs for those who might not know.  What doctor sees a patient without intending to charge them?  (Rhetorical question)  I would think the only doctor who did not intend to charge for his work would be one donating his time at a clinic in a poor neighborhood.

Our write off of charges would only be in the case where we asked the client for the ABN and did not get one.  The charge-off is to cover us (and the client), but also to act as a motivator to the client to get an ABN the next time.  The client has never insisted that we reinstate the charges in a situation where he actually did not get an ABN from the patient.

If that doesn't answer the questions you asked, let me know.
Title: Re: Fraud and Abuse - Coda
Post by: Billergirlnyc on February 11, 2013, 05:54:11 PM
OIG is implying we should have known better

Has OIG suggested what you should have done differently?

No.

Hi, Gary.

Just a few quick questions: Do you have a compliance program in place or any kind of policy and procedures in place so your billers know what to do if they suspect upcoding or even undercoding? Have you ever seen OIG's compliance program guidance for third-party billing companies? It's pretty exhaustive but it's a good guideline for any size company. They even say they don't expect every billing company to follow it completely, as it's just a guideline. This may be why OIG is saying "you should've known", of course, I can't say for sure that's what they mean, but from what I gather about OIG they tend to work from this stance that there compliance suggestions are out there and anyone who decides to go into third-party medical billing business should know about it and practice some of it.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 11, 2013, 06:14:27 PM
We bill exactly what we are given. No more or less. OIG is implying we should have known better since the practice is mostly level 5's.

This is grey.. of course your lawyer will give you the best advice, but from my experience, we as billers become libel whenever we know of or even suspect. I've had instances where things similar have happened. NOT addressing it could land you in hot water, but the courts ultimately determine "intent" and look at what portion is "obvious".   For example, I know a pediatrician who was billing for patients using both their American name and Hebrew Name. This particular case was a case I saw as a claims examiner. An alert for this type of billing in this area (predominately Jewish), goes out as a red flag to examiners. Once my part was done and this case was sent to review, then legal department, legal ramifications fell on the Office manager/biller  BECAUSE she knew.  Even if she didn't know.. She SHOULD have known.  (AND THIS WAS A COMMERCIAL CARRIER.. NOT GOVT CARRIER) If 2 kids come in, and you get charge slip for 4.. Houston, we have a problem!      Another incident/example is in something we have all seen at one point in time. Dr gives billing slip and says, Waive Mrs. Smith's copay. Biller knows they shouldn't. Biller does what's told and guess what.. yes they are responsible.    I could go on but you get the point.   With your particular case they were billing all E/M at level 5. This can be seen a few ways. One way is that it could be assumed you "suspected" something .. maybe (and I'm not saying you did) you sort of had a feeling something was a wry.  But that would be pretty difficult to prove since the levels of E/M are based on the documentation of the medical record to which you don't use to bill. There was no reason (logistically speaking) for you to be aware that a Level 5 E/M was NOT correct.  J M H O

ANYWAY... on to the point:

Fraud and Abuse laws in general include verbiage to say "should know", maybe that's what he is referring to:

he civil monetary penalty for healthcare fraud has been increased from $2000 to $10,000 for each item or service for which fraudulent payment has been received. The monetary assessment has been increased from not more than twice the amount to not more than three times the amount of the overpayment. Two practices have been added to the list of fraudulent activities for which civil monetary penalties may be assessed:

    Engaging in a pattern of presenting a claim for an item or service based on a code that the person knows or should know will result in greater payments than appropriate

    Submitting a claim or claims that the person knows or should know is for a medical item or service that is not medically necessary

I took the above from my compliance plan and below each I have examples.   One of them is based on an experience I had where a psychologist I billed for went on vacation and his biofeedback tech submitted daysheets on his behalf. Biofeedback was only to be done under direct supervision of the psychologist. BECAUSE I knew my provider was on vacation (2000 miles away) I knew I should NOT have received charges from his office for any services.  When I caught this, the provider was very indifferent instructing me to just bill what I got. (sound familiar) .. long story short I turned him in after terminating our contract, did NOT bill those charges and under whistle blowers law received a check (very small.. LOL) because they had found several occasions of same incident with this provider which was NOT known to me. In the letter I got with the check was mention that HAD I billed the charges I KNEW to be false, I myself would have been subject to civil and criminal action. That's why I maintain a biller indeed is JUST as responsible for the charges they bill out.   "SHOULD KNOW".  Once you know about something.. you become libel.
Title: Re: Fraud and Abuse - Coda
Post by: Billergirlnyc on February 12, 2013, 05:06:55 PM
Agreed. That could be as well. For me when someone says to me "I should've known better"  it means I should've known to ask questions regardless of what my compliance says. Like I've said before if I had a provider who was constantly coding at a level 5 on E/M's I would've questioned it regardless of their specialty.  It would just be an immediate flag for me to start my own internal investigation. The same with the scenario you spelled-out. 

I really hope this works-out well for Gary and please know I'm not trying to insinuate that you were unethical. I also doubt this is what OIG is saying per se. I feel like they're questioning why you didn't catch the flag. OIG has been going after providers who have upticks in their E/M codes and a provider billing to say Medicare for only Level 5's (using a scenario) would definitely raise red flags for them. They have sophisticated algorithms to detect these things now, but know when I say sophisticated I'm not implying it's not flawed. They're no longer accepting that billers are only doing what they've been told or given to bill. They want us actively ensuring that what we're billing is correct too. This is why so many of us keep pounding on about having compliance programs. Programs and policies where whether you're a 1 person billing office or 50 that everyone knows what to do if they suspect fraud, hot to detect upcoding/undercoding with only the superbill/encounter form/charge slip/day sheets, etc. It's really about creating a culture and system of accountability for everyone.
Title: Re: Fraud and Abuse - Coda
Post by: RichardP on February 12, 2013, 09:19:59 PM
Please focus on what I'm saying here; please don't get sidetracked into a discussion of how I am saying it.  Due to lack of time and space, I'm being blunt and to the point.  Hopefully, you won't think I'm being unkind.

Billergirlnyc - you are speaking to people who seek out this site looking for advice.  What advice are you actually giving with the statements quoted below?  It seems that you are trying to create a reality with your words that does not exist in real life activity.  In spite of all I have said over the last few weeks, and the examples / links I've provided, you are still saying the same incorrect things that others are saying.

They're (OIG?) no longer accepting that billers are only doing what they've been told or given to bill.

What does that statement mean?  That they (OIG?) used to accept that billers were only doing what they had been told or given to bill, without looking for fraud in the process??  I don't think that has ever been the case.  I think the record shows that the powers that be have always look for intent to defraud.

The OIG guidelines for billers are only guidelines.  They are not legally binding.  No biller is going to be prosecuted for ignoring the guidance given by the OIG.  Why?  Because the OIG itself states that they are not legally binding.  Therefore, they cannot be used to prosecute.  The only thing prosecutable previously, now, and in the future is fraud - billing for charges not given by the doctor, or colluding with the doctor to bill fraudulently.  If the powers that be can prove fraud on the part of the biller, the biller is toast.  If they cannot prove fraud, the biller remains untoasted.  The powers that be have never only accepted that billers were doing what they were told.  They have always looked for fraud, regardless of what the biller said.

They're (OIG?) no longer accepting that billers are only doing what they've been told or given to bill.  They want us actively ensuring that what we're billing is correct too.

I assume that, by your choice of words, you mean they want us to catch the doctor when he codes incorrectly (a task different from a biller knowing how to bill correctly).  How do billers actively ensure that what they are billing is correct???  The only way they can do this is to examine the patient's chart to see if it supports the charges.  No law requires the biller to do this.  Without examining the patient's chart, the biller can never ensure that what they are billing is correct.  So what are you actually telling new billers who are reading this site for information and advice?  With your words, you are making them responsible for a goal they can never achieve (ensuring that what they are billing is correct).

All we can do is follow the OIG guidelines and educate ourselves as best we can.  Sometimes that education will allow us to suspect a doctor is billing fraudulently (or is simply uninformed), and we can choose whichever path we wish to follow at that point.  But this education never gives us the power to demand the patient's chart from the doctor so that we can use the chart to second-guess his coding.  And without this power, billers can never ensure / guarantee that the billing is correct.  The powers that be understand this.  That is why the law does not require billers to ensure that the billing is correct.  That is why fraud is the chargeable action.  The powers that be must prove that the biller had an intent to defraud if he is to be convicted.  In such a clear-cut situation, when intent to defraud is proven, it does not matter whether the biller had access to the patient's chart; it does not matter whether the biller actually had the power to ensure that the billing was correct.  Those are not, and never have been, the central issue.  Proven intent to commit fraud has been the central issue.  (In those medical biller conviction cases you can find on the internet, intent to commit fraud is always front and center).  And that is the useful caution to billers, new or experienced; learn what intent to defraud looks like and learn to stay away from the appearance of it.  The OIG guidelines to billers helps immensely in this effort.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 13, 2013, 08:47:57 AM
Richard, I'm sorry but I still think your not understanding..you keep saying the OIG's opinion and guidelines are not legally binding. Your correct with that. BUT the laws regarding fraud/abuse DO INDEED go further than fraud/intent..

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Fraud and Abuse laws in general include verbiage to say "should know", maybe that's what he is referring to:

he civil monetary penalty for healthcare fraud has been increased from $2000 to $10,000 for each item or service for which fraudulent payment has been received. The monetary assessment has been increased from not more than twice the amount to not more than three times the amount of the overpayment. Two practices have been added to the list of fraudulent activities for which civil monetary penalties may be assessed:

    Engaging in a pattern of presenting a claim for an item or service based on a code that the person knows or should know will result in greater payments than appropriate

    Submitting a claim or claims that the person knows or should know is for a medical item or service that is not medically necessary

Quote
Federal Civil Monetary Penalties (Section 1128A of the Social Security Act/42 USC 1320a-7aa). Health care professionals and entities are prohibited from presenting or causing to be presented claims for services that the individual or entity "knows or should know" were not provided as claimed. services.

Now I THINK I know what you are saying in that the biller has to know there is an intent to defraud, however I disagree, I gave examples in my previous post. I've BEEn on both sides of this.  The original post in point was could the billing company be libel if it turns out the physicians documentation did not support the level 5 and the providers were just routinely using a level 5.  PROBABLY not and we told him to consult an attorney for a better answer, that's because it is NOT cut and dry.  We as billers may not be privy to the medical record, nor do we need to be unless we are coders, (that wasn't mentioned if they were or not) but let's assume the billing company did not have charts. At some point if the biller says hmmm they are always billing level 5, "I sure hope that's right, it's very strange they are doing all level 5's. "   Now I'm not there, I don't know how obvious it was, I don't know anything specific about the practice, the provider, and more importantly HOW long and how consistent these level 5 visits were being billed.  But let's suppose one of my pediatricians was consistently coding level 5 visits. AT some point, mostly because we all know about advisory's, and RAC audit's I am going to have my flag up. FROM that moment on that I suspect a problem, I do indeed become libel and responsible. Could I probably claim I didn't know.. YES, would I probably be ok legally, Most likely YES. But you cannot say that because of verbiage in abuse / fraud does include "should know".    In the case of my client, I KNEW he was away. NO matter what, had I just billed those charges from his office, indeed I would have been in trouble. Medicare flat out told me that IN a letter where they commended my actions.  Not only would I have been libel and responsible, It would have been worse if I did NOTHING. I was even legally obligated to report it.   

With the other example I was a 2nd level claims examiner/tech for a commercial carrier, not a govt carrier, when the investigation was sent to our legal department, indeed there were consequences for both the doctor and the office manager. The legal department had the power to send this for a criminal investigation, had there been criminal charges filed by the company I worked with there would have been police that entered the office and both the physician and office manager would be handcuffed. How would it play out? I have no idea, but I can tell you they did not re-open the practice, it made all the newspapers and the OM cut a deal to avoid prosecution. She did NOT sit back and say, ooh yeah, I'm committing fraud. She got nothing out of it. Her crime (YES crime) was turning a blind eye when she KNEW what was going on. Now let's say she said she didn't know, THAT wouldn't be good enough because you don't need the medical record to say.. Hmmmm one kid came out and I have two charge slips to bill. SHE SHOULD KNOW there's a problem. 

You keep hammering home that no biller will be prosecuted, there's no intent.. but bottom line you can't say. All we have is the law and following the law. Our jobs are NOT done responsibly or correct if we are turning a blind eye to things we are trained to pick up on. Like I said, I don't know enough about Gary's case to say for sure.. I don't know how obvious or consistent it was. I bill for pediatricians and I would def have a flag raised if they were always billing level 5's. I might be inclined to pick up a chart or do a self-audit and then I can decide how to go from there. If I did NOTHING and I suspected a problem.. that is a problem.  There are MANY things we as billers should just KNOW.  Gary's case mentions the OIG, but we don't know the level of the audit, an audit can turn criminal and civil, who wants to even be in the position of being on the other end of the audit? 

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If they cannot prove fraud, the biller remains untoasted.  The powers that be have never only accepted that billers were doing what they were told.  They have always looked for fraud, regardless of what the biller said.

Richard again, your focusing souly on the word FRAUD. You don't mention abuse. The level 5 visits if not found to be correctly billed with correct documentation, it's not labeled fraud automatically, it could simply be abuse. There does NOT have to be "intent" to prove abuse. 

Here is your more clear cut reg:

Health Care Fraud and Scheme (18 USC 1347). Prohibits knowing and willful actions or attempts to execute a scheme to defraud any health care benefit program or to obtain, by means of false or fraudulent pretense, representation, or promises, any of the money or property owned by, or under the custody or control of any health benefit program. Potential penalties include fines and imprisonment for up to 10 years. Imprisonment may be for up to 20 years if the offense causes serious bodily injury and up to life imprisonment if the offense causes death.

And another:

False Statements Relating to Health Care Matters (18 USC 1035). Anyone who knowingly and willfully falsifies or conceals a material fact or makes a materially false fictitious or fraudulent statement in connection with the delivery of or payment for health care benefits, items or services may face fines and up to five years imprisonment.

https://www.ama-assn.org/ama/pub/physician-resources/legal-topics/regulatory-compliance-topics/health-care-fraud-abuse/fraud-abuse-debate.page?

''Physician claims which were not fully documented and initial medical necessity denials that are frequently overturned on appeal (up to 70 percent are reversed), were labeled as "evidence" of fraud and abuse. The Board of Trustees has expressed strong concerns that fraud and abuse estimates should be confined to proven cases of fraudulent intent and acts which are inconsistent with accepted medical practices. ''

"Increasingly, federal law enforcement officials have used the False Claims Act to obtain settlements or judgments in alleged cases of health care fraud. The False Claims Act can easily trigger potential payments of millions of dollars because the law provides for treble damages and mandatory fines of $5,OOO to $1O,OOO per claim. In addition, prosecutors do not have to prove specific intent to defraud federal programs"

 
Title: Re: Fraud and Abuse - Coda
Post by: DMK on February 13, 2013, 10:40:16 AM
I have sat back and watched this discussion play out for the past few weeks, and since I'm not an attorney, I felt I had nothing to add....BUT....

Richard, the point everyone is trying to make is that just because you may or may not get in trouble for billing something you know or should have known to be incorrect is not a good reason for not doing things as MORALLY AND ETHICALLY correct as you can.  If you even SUSPECT that the doctor is setting himself up (or you for that matter) you MUST speak up.  One of society's current problems (just my opinion) is the "graying" of rules and regulations.  I will not put myself in the position of even being questioned about my integrity.  Sometimes a biller needs to play devil's advocate in the best interest of all parties.
Title: Re: Fraud and Abuse - Coda
Post by: PMRNC on February 13, 2013, 01:31:49 PM
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Sometimes a biller needs to play devil's advocate in the best interest of all parties.

Correct!!! and a good practice manager/billing company will do exactly that!