Author Topic: Fraud and Abuse - Coda  (Read 6630 times)

RichardP

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Re: Fraud and Abuse - Coda
« Reply #15 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?

gary999

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Re: Fraud and Abuse - Coda
« Reply #16 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.

RichardP

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Re: Fraud and Abuse - Coda
« Reply #17 on: February 09, 2013, 07:38:38 PM »
Keep us posted on how this plays out.

gary999

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Re: Fraud and Abuse - Coda
« Reply #18 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.

PMRNC

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Re: Fraud and Abuse - Coda
« Reply #19 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. 
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RichardP

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Re: Fraud and Abuse - Coda
« Reply #20 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.
« Last Edit: February 10, 2013, 12:25:31 PM by RichardP »

Billergirlnyc

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Re: Fraud and Abuse - Coda
« Reply #21 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.
Don't worry. Be happy.
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PMRNC

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Re: Fraud and Abuse - Coda
« Reply #22 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.
« Last Edit: February 11, 2013, 06:27:02 PM by PMRNC »
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Billergirlnyc

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Re: Fraud and Abuse - Coda
« Reply #23 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.
« Last Edit: February 12, 2013, 06:36:49 PM by Billergirlnyc »
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RichardP

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Re: Fraud and Abuse - Coda
« Reply #24 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.

PMRNC

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Re: Fraud and Abuse - Coda
« Reply #25 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

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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"

 
Linda Walker
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One Stop Resources, Education and Networking for Medical Billers
www.billerswebsite.com

DMK

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Re: Fraud and Abuse - Coda
« Reply #26 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.

PMRNC

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Re: Fraud and Abuse - Coda
« Reply #27 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!
Linda Walker
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www.billerswebsite.com