Here are some of the "crimes" that constitute fraud in the medical field. This is the federal government's list.
1. Having a billing practice that establishes a physician as a financial "outlier."
2. Incorrect coding.
3. Medically unnecessary services.
4. A pattern of upcoding.
5. Adverse patient outcomes.
6. Failure to provide covered or needed care in violation of contractual arrangements.
7. Delays in diagnosis and treatment.
8. Written or printed documentation in the chart that does not support the codes billed.
8. Written or printed documentation in the chart that does not support the codes billed.
What do any of these terms mean?
What is an "outlier"? Medicare defines the term, but does not share information about "average" coding practices until after a physician has already "committed fraud" by being an outlier. Physicians (like me) who purchase and use equipment such as ultrasound or stress test machines are likely to have more patients who agree to undergo testing because it's quick--therefore we are more likely to be outliers because we are able to persuade our patients to do what they need.
What is "incorrect coding"? In many cases coding guidelines differ from one insurance provider to another. For example, if I perform a physical exam on a Medicare patient, I must code V70.0-G0438; but if I do the same physical on a non-Medicare patient, I must code V70.0-99397. If the patient is younger than sixty-five the CPT code may be 99396, 99395, 99394, 99393, 99392 or 99391--unless it's the patient's first visit, or he hasn't been to the office in three years. Then the codes change to 99387, 99396, 99385, 99384, 99383, 99382 or 99381. If the patient is younger than twenty-one the diagnosis code has to change from V70.0 to V20.2. The exact same service is provided for a patient, but the codes for billing that service depend on the patient's age, insurance company, or status as a new or established patient.
To make matters worse, specific aspects of the physical exam must be coded separately. For example, if I perform a Pap and pelvic as part of the yearly physical, I must also submit to the insurance company, V72-31-Q0091 if there are no signs or symptoms, V76.2-Q0091 if the patient is low-risk, and either 622.1, V15.85, or 795.1-Q0091 if the patient has risks for cervical cancer. There are hundreds of other options--all for the exact same service! If the patient's insurance is Medicare, the procedure codes change to P3000 or P3001, and if the insurance is Medicaid 88164 must be used instead. The pelvic exam, as separate from the Pap, is coded as V72.31-G0101, depending on the patient's situation, or it could be V10.41-G0101, V10.43-G0101, or V10.48-G0101. A rectal exam must be coded as V76.11-82270, but only if the patient is over age 50 and doesn't have Medicare. If the patient has Medicare the codes may be V76.11-G0102 or V76.44-G0102, unless the patient has symptoms or it happens to be the second rectal within a 365-day period, in which case a specific code must be selected from a long list of other options--whichever exactly represents the patient's problem. For example, if a rectal is done because of new constipation, the codes may be 564.10-82270. Even with exact codes Medicare is not likely to pay for this charge--its computers say that a rectal can't be performed more than once a year, and only on patients over age fifty. Exceptions are impossible to justify--we're talking to computers, not people. Most insurance companies will not pay for a Pap or pelvic exam if performed on the same day as the rest of the physical exam--in order for a physician to get paid for a Pap exam the patient must return to have it done another day.
In addition, all these codes must be appended by "modifiers". The office visit must be submitted as V70.0-99396-25, the pelvic exam V72-31-G0101-59, and the rectal V76-41-G0102-59-51. If modifiers are submitted to some insurance companies, the services won't get paid, because those insurance company computers don't "recognize" modifiers. But if -25 and -59 aren't appended to charges for other insurance companies, the charges won't be paid. There are dozens of different modifiers for various uses, and no consensus among insurance carriers about when and how to use them--only denials of payment or allegations of fraud if they aren't used "correctly."
My office provides many services on-site. Each service is complicated by a Pandora's box of coding rules that vary across insurance companies. Errors in coding are inevitable, given a system which isn't centralized and involves so many variables. Coding and billing have become entrapments for physicians, none of whom can master the ever-changing rules contained in hundreds of thousands of pages of "updates." Therefore we are all vulnerable to charges of fraud--and can easily become targets of stupendous fines for breaking the rules.
What is a "medically unnecessary service"? Who should decide whether a patient needs an EKG or a chest x-ray? The insurance carrier? The doctor? If I decide to obtain a chest x-ray on a patient with low sodium (a condition that suggests a pulmonary abnormality) it probably won't be "covered," because insurance companies cannot think this way. Therefore, the chest x-ray would be considered fraudulent, whatever my medical reasons for obtaining it.
Since "adverse patient outcomes" and "failure to diagnose a patient on time" are examples of fraud we're all in trouble. All patients die, eventually--and death is an "adverse outcome." A medical malpractice article in the August issue of Family Practice Management states that 75% family physicians will face a malpractice lawsuit before age 65, and of those 77% will be for "failure to diagnose a patient on time." Ten years ago statistics showed that a family physician is likely to be sued every seven years. Given the government's definition of fraud, physicians who are sued for failure to make a diagnosis on time or for an adverse patient outcome could also face charges of fraud.
Failure to document what is said and done for a patient is the biggest physician land-mine. Is it really possible to represent what happens between a doctor and a patient on paper? The malpractice article says, "If your note doesn't indicate how you arrived at a differential diagnosis, you're asking for trouble," and tells us that writing, "risk-benefit assessment discussed" is no longer adequate protection in a malpractice case--nor is it enough for insurance companies. "Boilerplate notes"--or computer templates designed to meet documentation requirements for insurance companies--constitute red flags for auditors. Physicians tell same patients the same things all day long--but we can't use forms to document this. We have to write individual essays in their charts explaining in excruciating detail what we said, why we said it, and the process by which we made one diagnosis rather than twenty others.
My codes for a test--for example, 786.05-71020-59 means we did a chest x-ray because the patient had a bad cough--aren't enough in the way of explanation. I am required to give a description of the cough, duration, triggers, and associated symptoms, as well as the patient's history of a similar cough, contact with others who have been sick, travel outside the country, exposure to tuberculosis, and particulars like cough with sputum, or cough with blood, or paroxysmal coughing...all described in detail. If not, I might not get paid for the office visit. If the chest x-ray still doesn't seem legitimate to auditors, the I may be accused of fraud, fined, banned from seeing patients covered by that insurance company, or reported to the government.
"The federal government uses the threat of prosecution and arbitrary penalties to collect excessive settlements from doctors 'guilty' of clerical errors. Federal officials [have] developed a crude system to extrapolate fines on doctors and hospitals," says Grace-Marie Turner in her article, "HIPAA and the Criminalization of American Medicine. She goes on to say:
Civil actions have become lucrative for law enforcement
agencies....The government can seek $10,000 in fines for each
violation, plus three times the amount of the charges in question.
In this inquisitional legal climate, doctors fear their livelihoods
and financial security are at risk if their office assistants happen
to make errors on federal forms. Even if they can withstand
the financial losses, doctors are particularly terrified of
reputation-ruining fraud charges. They often feel it is safer to
simply pay heavy fines than to fight the federal government.
The federal government--and other insurance companies, who adopt the government's policies--invent their own definitions of terms like "outlier," "incorrect coding," "medically unnecessary," "adverse patient outcomes," "failure to provide care," and "correct documentation." Using these definitions, virtually any doctor may be found guilty of fraud. If the government wants a doctor's money, it points a finger and takes it. "Crimes" are easy to find, using the wide berth the government has given itself via dozens of statutes--once a doctor has been raided and robbed, as I have been.
How is a physician supposed to survive in this environment? Why would any physician want to?
What is an "outlier"? Medicare defines the term, but does not share information about "average" coding practices until after a physician has already "committed fraud" by being an outlier. Physicians (like me) who purchase and use equipment such as ultrasound or stress test machines are likely to have more patients who agree to undergo testing because it's quick--therefore we are more likely to be outliers because we are able to persuade our patients to do what they need.
What is "incorrect coding"? In many cases coding guidelines differ from one insurance provider to another. For example, if I perform a physical exam on a Medicare patient, I must code V70.0-G0438; but if I do the same physical on a non-Medicare patient, I must code V70.0-99397. If the patient is younger than sixty-five the CPT code may be 99396, 99395, 99394, 99393, 99392 or 99391--unless it's the patient's first visit, or he hasn't been to the office in three years. Then the codes change to 99387, 99396, 99385, 99384, 99383, 99382 or 99381. If the patient is younger than twenty-one the diagnosis code has to change from V70.0 to V20.2. The exact same service is provided for a patient, but the codes for billing that service depend on the patient's age, insurance company, or status as a new or established patient.
To make matters worse, specific aspects of the physical exam must be coded separately. For example, if I perform a Pap and pelvic as part of the yearly physical, I must also submit to the insurance company, V72-31-Q0091 if there are no signs or symptoms, V76.2-Q0091 if the patient is low-risk, and either 622.1, V15.85, or 795.1-Q0091 if the patient has risks for cervical cancer. There are hundreds of other options--all for the exact same service! If the patient's insurance is Medicare, the procedure codes change to P3000 or P3001, and if the insurance is Medicaid 88164 must be used instead. The pelvic exam, as separate from the Pap, is coded as V72.31-G0101, depending on the patient's situation, or it could be V10.41-G0101, V10.43-G0101, or V10.48-G0101. A rectal exam must be coded as V76.11-82270, but only if the patient is over age 50 and doesn't have Medicare. If the patient has Medicare the codes may be V76.11-G0102 or V76.44-G0102, unless the patient has symptoms or it happens to be the second rectal within a 365-day period, in which case a specific code must be selected from a long list of other options--whichever exactly represents the patient's problem. For example, if a rectal is done because of new constipation, the codes may be 564.10-82270. Even with exact codes Medicare is not likely to pay for this charge--its computers say that a rectal can't be performed more than once a year, and only on patients over age fifty. Exceptions are impossible to justify--we're talking to computers, not people. Most insurance companies will not pay for a Pap or pelvic exam if performed on the same day as the rest of the physical exam--in order for a physician to get paid for a Pap exam the patient must return to have it done another day.
In addition, all these codes must be appended by "modifiers". The office visit must be submitted as V70.0-99396-25, the pelvic exam V72-31-G0101-59, and the rectal V76-41-G0102-59-51. If modifiers are submitted to some insurance companies, the services won't get paid, because those insurance company computers don't "recognize" modifiers. But if -25 and -59 aren't appended to charges for other insurance companies, the charges won't be paid. There are dozens of different modifiers for various uses, and no consensus among insurance carriers about when and how to use them--only denials of payment or allegations of fraud if they aren't used "correctly."
My office provides many services on-site. Each service is complicated by a Pandora's box of coding rules that vary across insurance companies. Errors in coding are inevitable, given a system which isn't centralized and involves so many variables. Coding and billing have become entrapments for physicians, none of whom can master the ever-changing rules contained in hundreds of thousands of pages of "updates." Therefore we are all vulnerable to charges of fraud--and can easily become targets of stupendous fines for breaking the rules.
What is a "medically unnecessary service"? Who should decide whether a patient needs an EKG or a chest x-ray? The insurance carrier? The doctor? If I decide to obtain a chest x-ray on a patient with low sodium (a condition that suggests a pulmonary abnormality) it probably won't be "covered," because insurance companies cannot think this way. Therefore, the chest x-ray would be considered fraudulent, whatever my medical reasons for obtaining it.
Since "adverse patient outcomes" and "failure to diagnose a patient on time" are examples of fraud we're all in trouble. All patients die, eventually--and death is an "adverse outcome." A medical malpractice article in the August issue of Family Practice Management states that 75% family physicians will face a malpractice lawsuit before age 65, and of those 77% will be for "failure to diagnose a patient on time." Ten years ago statistics showed that a family physician is likely to be sued every seven years. Given the government's definition of fraud, physicians who are sued for failure to make a diagnosis on time or for an adverse patient outcome could also face charges of fraud.
Failure to document what is said and done for a patient is the biggest physician land-mine. Is it really possible to represent what happens between a doctor and a patient on paper? The malpractice article says, "If your note doesn't indicate how you arrived at a differential diagnosis, you're asking for trouble," and tells us that writing, "risk-benefit assessment discussed" is no longer adequate protection in a malpractice case--nor is it enough for insurance companies. "Boilerplate notes"--or computer templates designed to meet documentation requirements for insurance companies--constitute red flags for auditors. Physicians tell same patients the same things all day long--but we can't use forms to document this. We have to write individual essays in their charts explaining in excruciating detail what we said, why we said it, and the process by which we made one diagnosis rather than twenty others.
My codes for a test--for example, 786.05-71020-59 means we did a chest x-ray because the patient had a bad cough--aren't enough in the way of explanation. I am required to give a description of the cough, duration, triggers, and associated symptoms, as well as the patient's history of a similar cough, contact with others who have been sick, travel outside the country, exposure to tuberculosis, and particulars like cough with sputum, or cough with blood, or paroxysmal coughing...all described in detail. If not, I might not get paid for the office visit. If the chest x-ray still doesn't seem legitimate to auditors, the I may be accused of fraud, fined, banned from seeing patients covered by that insurance company, or reported to the government.
"The federal government uses the threat of prosecution and arbitrary penalties to collect excessive settlements from doctors 'guilty' of clerical errors. Federal officials [have] developed a crude system to extrapolate fines on doctors and hospitals," says Grace-Marie Turner in her article, "HIPAA and the Criminalization of American Medicine. She goes on to say:
Civil actions have become lucrative for law enforcement
agencies....The government can seek $10,000 in fines for each
violation, plus three times the amount of the charges in question.
In this inquisitional legal climate, doctors fear their livelihoods
and financial security are at risk if their office assistants happen
to make errors on federal forms. Even if they can withstand
the financial losses, doctors are particularly terrified of
reputation-ruining fraud charges. They often feel it is safer to
simply pay heavy fines than to fight the federal government.
The federal government--and other insurance companies, who adopt the government's policies--invent their own definitions of terms like "outlier," "incorrect coding," "medically unnecessary," "adverse patient outcomes," "failure to provide care," and "correct documentation." Using these definitions, virtually any doctor may be found guilty of fraud. If the government wants a doctor's money, it points a finger and takes it. "Crimes" are easy to find, using the wide berth the government has given itself via dozens of statutes--once a doctor has been raided and robbed, as I have been.
How is a physician supposed to survive in this environment? Why would any physician want to?
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