Wiki Am I being asked to commit fraud?

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zathras1974

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I have a question for those who have been doing this longer than I have.
First, let me set the scene.

I'm a recently credentialed CPC (Early March 2021) who is working at a third party biller who ships and bills for Remote Patient Management devices. BP Cuffs, Scales, Glucometers, and (soon) Pulse Oximeters.

This is a somewhat new company. Myself and two others were hired around the same time to set up the billing department.

Everything was fine until last Thursday. The other two billers were out of the office (one sick, one had an appointment). One of my managers comes to me and asks about a discrepancy between what a client asked us to bill, and what we actually billed. It looks like the system was marking things that we had rejected as unbillable as billed. I investigated and alerted them of the issue, and that it wasn't anything to worry about, just a quirk between what the client wanted us to bill, and what we legally COULD bill.

Example 1: Code 99457 is for time spent discussing results with patients. Must be 20 minutes or more within a 30-day period. If the provider doesn't meet the time requirement, we don't bill it. Client wants us to bill it, but we kick it out as unbillable.
Example 2: Code 99454 is for monthly "maintenance". Normally must have 16 readings in a month. Due to the pandemic, CMS has lowered requirement to 2 readings a month. Some patients are non-compliant and don't even meet this lowered bar. Client wants us to bill it, we kick it back.

So the system is showing we billed it, but our claims revenue is about 40% lower then what management expected, due to us kicking out unbillable requests.

Now to the sticky part. Management wants us to go back and bill these 99454's, even if there are no readings. Their justification is that "Since the system sends an alert to the patient that they missed a reading, that counts as a reading".

When I pushed back on this idea, saying that a lack of a reading couldn't BE a reading, the manager asked if we had to provide documentation along with the claim, or if the only way CMS would find out is if we were audited.

Obviously this makes me, and the other two billers, very uncomfortable. We haven't billed this questionable way, and we were supposed to have a meeting with management on Friday about the issue. That meeting never occurred.

I'm one week away from my 90 day's, and don't want to cause a stir, but I also (obviously) don't want to be fined or jailed for committing Medicare fraud.

So, IS it fraud, or am I getting myself worked up for nothing? Any advice would be appreciated. I can't find any documentation that states this is fraud, but it SURE feels like it.

Thanks in advance.
 
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Hi there, I don't blame you for feeling uncomfortable. It's not possible to say this is certainly fraud, that requires a conviction or guilty plea following an investigation and so on. It doesn't look like compliant coding/billing that would stand up on review but it may be that the manager doesn't understand the rules and just wants to please the clients. Explaining how much trouble this could cause the client - including the need to return a lot of money - might be all it takes.

So far as you and the other billers are concerned the only time I've heard of billers/coders face legal consequences for fraud is if they're directly involved in coming up with the scheme, directly benefit from it or help conceal it (eg falsify or destroy records). If this ever comes down to an investigation the folks who were "just following orders" can expect to be interviewed by the investigators and they will want to have their own attorney with them for those interviews. They may also have to testify in court if it goes to trial. Sorry I don't have a solid yes or no answer.
 
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I think that this is most definitely an issue. If the service didn't happen (for whatever reason), you cannot bill for it. If a time based code doesn't have chart documentation that shows the time, you can't bill it. Perhaps you should provide management with the Medicare Program Integrity Manual. The False Claims Act is another document you should share with them as it outlines monetary penalties related to fraudulent billing. Above, all, document everything that's happened with regards to this issue: what, when and who asked you bill these, and make sure you have a copy of this at your home. It may be that they're not aware of the implications of submitting a claim that is false. Let's assume positive intent, and that they're simply trying to catch up from a revenue perspective and aren't aware that what they are asking you to do is wrong. But it most definitely is wrong.

They hired you to do the correct and compliant coding and billing, so if after you explain compliance to your managers, they continue to ask you to bill in a way that is non-compliant, you certainly do have choices. I'll leave that up to you.
 
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Ask your management for a copy of your company's written billing policy.
If they are not abiding by the policies, rules,regulations and laws or you are knowledgeable about the intent to submit claims that are deficient in the documentation for billing, You are participating in committing a crime.
If you have concerns start looking for another company to work for. If you know something say something. Managers don't know everything this is a highly regulated industry that is always changing.
You are still obligated to report the potential wrong doing to protect yourself especially if you submitted claims you know were incorrect for reimbursement to any government entity.

PLEASE consider the fact, the Provider named on the claim is liable for the filing of that claim. Often they were not aware the billing company was putting them in harm's way.
They could possibly lose their license to practice medicine, pay fines in addition to repayment for erroneous claims or even be sentenced to JAIL.
The billing company often pleads out leaving the Dr. solely liable for the act. Contact the Provider and ask them directly if they are aware this is taking place.
Listen to the Podcast about Dr. Malik "The Last Man Standing"

CMS Policy for 99457 and 99458 in 2021
By far the most controversial interpretation around RPM in the Proposed 2021 MPFS involved language in the code descriptor for CPT Code 99457 describing “20 minutes or more of clinical staff/physician/other qualified healthcare professional time in a calendar month requiring interactive communication with the patient/caregiver during the month.” CMS proposed to interpret this language as requiring “at a minimum, a real-time synchronous, two-way audio interaction that is capable of being enhanced with video or other kinds of data transmission,” and further that “the interactive communication must total at least 20 minutes of interactive time with the patient” during the month.

Transmission by connected devices​

CMS finalized its interpretation requiring use of “connected” devices (e.g. Bluetooth, wi-fi, or cellular-enabled peripheral devices) to transmit patient data rather than allowing patients to manually enter their physiologic readings by a devices into a SaaS platform for remote transmission, citing concerns about data integrity and validity. In doing so, it ignored comments by stakeholders pointing out that such an interpretation would eliminate relevant physiologic metrics that are typically self-reported, such as pain and mood, from use in managing a patient’s care. CMS also failed to consider the lack of access to certain types of devices in “connected” form that became especially apparent during the COVID-19 PHE, when we experienced a global shortage of these devices.

16 days of data transmissions​

In its proposed fee schedule, CMS requested comments from stakeholders as to whether fewer than 16 days of data transmissions by a patient in a given month would be still be useful in monitoring and care management of certain conditions. Numerous stakeholders responded with clinical examples of such conditions that could readily be managed with fewer data transmissions, and even some instances in which requiring 16 separate transmission can be damaging to patients – for example, transmission of a patient’s weight in managing obesity. Despite these specific examples, CMS stated in the Final 2021 MPFS that “although we received general support for a reduction in the number of days of data collection required to bill for CPT codes 99453 and 99454, we did not receive specific clinical examples…we are not extending the interim policy to permit billing for CPT codes 99453 and 99454 for fewer than 16 days in a 30-day period.” Notably, the Final 2021 MPFS does not appear to prohibit billing CPT codes 99457 and 99458 when 20 minutes of care management services time has accrued during a calendar month, regardless of whether or not 16 days of transmissions have occurred during that time.
 
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