Avoid Coding Fraud:
Your Legal Responsibility and Liability
Published on Sun Jun 01, 2003
Beware: If you bill the government for a non-medically necessary service or for a service your staff didn't render, you along with others can be liable either civilly or criminally.
That's the warning posed by experts, such as Jason R. Levine, JD, a consultant and senior editor for Murer Publications at Murer Consultants Inc., a legal-based healthcare management consulting firm in Joliet, Ill. And you can't hide behind the biller. The coder can be liable for fraudulently billed services even if he or she didn't actually send off the bill, he says. What Gets You Into Trouble One of the many acts a fraudulent coder can violate is the False Claims Act.
A false claim occurs when a person presents, or causes to be presented, any claim for item or service, and knows, or should know, that the item or service was not provided as claimed or is false and fraudulent, or conspires to defraud, says Timothy P. Blanchard, JD, MHA, FHFMA, with McDermott, Will and Energy in Los Angeles.
The physician is ultimately responsible for the claim because his or her name is on it, but coders can be implicated if they possess knowledge of questionable activities without doing anything to change that activity. The terminology "knows" or "should know" includes actual knowledge, deliberate ignorance of information's truth, reckless disregard of it, and doesn't require a specific intent, Blanchard says. That means, he says, when you submit a false claim, investigators will consider:
a failure to study instructions as reckless disregard
studying the instructions as crafty manipulation
hiring a consultant for help as conspiring to defraud. These legal threats, although serious, shouldn't keep you from properly coding or reporting expensive or controversial services that deserve reimbursement. Neither CMS nor the HHS' Office of Inspector General (OIG) will seek to label innocent mistakes as fraud and abuse, Levine says. "What they are looking for is a pattern and practice of wrongful activity," he says, a systematic and deliberate practice over a period of time. You should simply make sure you understand what raises the feds' eyebrows, so you can cease any potentially fraudulent practices you or anyone else in your department are practicing, intentionally or otherwise. According to Levine, what CMS and OIG consider as redflag coding practices includes, but is not limited to: Unbundling. Do not unbundle codes for services CMS requires to be coded and billed as one service or item, Levine warns. You can adhere to CMS' bundling guidelines by following Medicare's National Correct Coding Initiative (NCCI) edits. Remember, the edits apply to services billed by the same provider for the same beneficiary on the same date of service. In the NCCI edits, pay attention [...]
