General Category > General Questions
Fraud and Abuse - Coda
PMRNC:
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..
--- Quote ---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
--- End quote ---
--- 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.
--- End quote ---
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?
--- Quote --- 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.
--- End quote ---
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"
DMK:
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:
--- Quote ---Sometimes a biller needs to play devil's advocate in the best interest of all parties.
--- End quote ---
Correct!!! and a good practice manager/billing company will do exactly that!
Navigation
[0] Message Index
[*] Previous page
Go to full version