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Fraud and Abuse - Coda

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RichardP:
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.

Billergirlnyc:

--- Quote from: gary999 on February 09, 2013, 10:36:26 PM ---
--- Quote from: RichardP on February 09, 2013, 10:32:49 PM ---OIG is implying we should have known better

Has OIG suggested what you should have done differently?

--- End quote ---

No.

--- End quote ---

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.

PMRNC:
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.

Billergirlnyc:
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.

RichardP:
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.

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