# Legal Question



## klp010102

I just recently started coding for a small family practice clinic in a small farm town.   I have noticed that they try to help out their patients by doing such as performing a pap and documenting a preventative visit but only charging for a 99212.   When I ask why, I was told "patient doesnt have wellness coverage and their deductible is very high so only charge 99212."    

I cant help but think this isnt really legal.   I dont think they realize that it maybe illegal.  They just see it as helping out someone.    

Can someone tell me if this is legal?


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## mitchellde

It is downcoding and is not a good thing to do.  They consider that a false claim submitted and there is a federal staute for that.  You may not represent to the carrier a service that was not performed.  Tell you physician that he can however barter for the patient owed amount.  A farm community should have plenty of fresh veges to barter with and some eggs, it is possible he may never need to go grocery shopping again!  But seriously barter is a legal mechanism as long as fair market value it assigned to the goods or services (ie no $100 eggs)


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## klp010102

Thanks.   I think I will spend the weekend finding documentation to show to the providers that this is not a great idea no matter how much they want to help the patients.   

If they were to be audited it would be really bad.


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## pkidd

*Legal question -*

Hi KP,
No, we're not allowed to 'not bill' for services rendered/documented.
It's called under-coding and the rule is in the Federal False Claims Act.  It is considered fraud by the feds.  Under-coding is considered an incentive to patients to frequent the practice (yeah, I know!).  The False Claims Act also covers over-coding, unbundling, waiving co-pays ...
I'd bet that the law is more fully described in the Federal Register/OIG (office of the inspector general).  
You can remind your docs that we'll be seeing more and more recovery audits and the audits are being performed by private companies, who typically are base paid + incentive paid based on the amount of $$ they "recover"!
Hope this is helpful 
Pat

Michelle, the bartering idea is fabulous!


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## mitchellde

I am a firm believer in barter, I feel we should value the skills in those in our community more than the money.  It is a way of making unemployed people feel useful and eliminates handouts which I am firmly against.  I had a business in our community and I used the barter system all the time.  I have a new roof on my house, original artwork on my walls that is fabulous, a freezer full of meat, and my car runs great!


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## coachlang3

remember one coding rule,  if it is not documented it didn't happen......

but I too like the bartering idea


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## deeva456

Bartering is a great idea!!!!  Also, you may want to consider, if you dont have it in place already, financial hardship policy. We started this several years ago and has worked out great. Our patients filled out a form providing the basic financial information and if they met the requirements we would w/o the balance.  This is important to document because collecting copays, deductibles etc is the responsibility of the provider as stated in your insurance contracts. Not to collect copays & deductibles you are in violation of the contract. 


good luck!

Dolores


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## klp010102

Ok, I need someone to direct me where to find some documentation on this.  I went to the OIG website.  I can find tons of stuff about upcoding etc... but nothing stating you can undercode for private pay patients.


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## LLovett

http://www.cms.hhs.gov/AcuteInpatientPPS/downloads/FAQ_Uninsured.pdf

I know this is talking about inpatient but the principal of all patients have to be treated equally is spelled out very clearly and many of the questions and answers apply to both inpatient and outpatient.

Laura, CPC, CEMC


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## klp010102

Ok after reading that it doesnt seem to be a problem with them discounting private pay patients?


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## coachlang3

Actually, downcoding, while not as sever an issue as upcoding, is still wrong, legally and ethically, and the doctor can be fined for it.  You can, I believe*, always offer a patient a self-pay option if they say upfront that they have financial hardship or you can always set up the hardship program that deeva mentioned.  

If however, the patient decides to go with ins or self-pay, they can not look back for that visit.

But your practice and doctor should not downcode even once.  




* while I may believe, I am also wrong alot.


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## dbranker

This is definitely illegal. 9921X is for a problem oriented medical visit and requires a diagnosis (chief complaint) and it is clearly spelled out in the guidelines. If the patient is coming for the annual, to obtain payment, your employer is likely using an unreported chief complaint. This is a textbook definition of a false claim. They can charge reduced fees if they want to help but to compromise his/her license is crazy and not recommended.

There may be situations where the patient has a history that warrants a Pap (abnormal results/PAP). I would recommend using those dx code with the PAP.

Good luck, I encountered this situation before and left the practice because, unlike a physician, I will likely be unable to afford a high priced attorney to keep me out of jail. (Yes, they prosecute coders for fraud too).


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## ARCPC9491

Go to the back of the CMS1500 form and read the attestation that the provider is signing their name to EVERY time they file a claim.
"Any person who knowingly files a statement of claim containing any misrepresentation or any false, incomplete or misleading information may be guilty of a CRIMINAL (emphasis added by me) act punishable under law and may be subject to civil penalties. Under penalty of perjury, I declare that I have read the foregoing; that the facts alleged are true, to the best of my knowledge and belief; and that the treatment and services rendered were reasonable and necessary with repect to the bodily injury sustained."

That's a pretty darn strong statement they are signing their names to.

I also refer you to (as mentioned by several other posters) the False Claims Act. They address several problems, but pertinent to your situation: Services not rendered. 

Then, say your provider gets red flagged, PER claim, they can be penalized at a minimum of $5,500 up to a maximum of $11,000. Plus, the provider could be liable for up to three times the amount unlawfully claimed.

Not to mention the added Civil Monetary Penalities and potentially being excluded from Medicare.

Doesn't sound like something anyone wants to get into.

Everyone wants to help the patient, I understand that. That's what we are in this business for. However, just because the "patient doesn't have wellness coverage and their deductible is very high so only charge 99212" 

You are falsifying your claim to seek reimbursement from the government, that should really be from the patient. The patient needs to understand their plan and policy -- healthcare is an expense to them too for some services. 

Hope that helps.


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## cpccoder2008

klp010102 said:


> Ok after reading that it doesnt seem to be a problem with them discounting private pay patients?



Yes they can give a discount to private pay patients. We give a percentage to our private pay patients also.


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## snahcee

cpccoder2008 said:


> Yes they can give a discount to private pay patients. We give a percentage to our private pay patients also.


My understanding is that the discounting has to be detailed in your policy and procedures to provide evidence that the process is fair and applied universally under the criteria set for eligibility. This helps your practice to avoid *even the appearance* of playing favorites, while allowing you to provide excellent consideration for patients with increased need.


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