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Fraud and Abuse - Coda

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RichardP:
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.

PMRNC:
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.   

tallmanusa:
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.

PMRNC:

--- 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.
--- End quote ---

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. 

QueenAlicia:
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

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