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When physicians work with patients, they have a number of responsibilities placed on their shoulders. Not only do they need to communicate with the patient and address the cause for the visit (i.e. tend to whatever brought the patient in), but they are also required to document every aspect of the interaction in a very exhaustive way. Part of this documentation’s purpose is for the patient’s ongoing care and well-being, but a major part of it is dedicated to financial necessity – coding and billing for the work performed. Proper billing and coding is no small task and reports indicate that as many as 80% of all medical claims submitted to payors contain mistakes. Furthermore, those mistakes are estimated to equate to a whopping $68 billion. The matter of who will be held liable for those mistakes is an important one, considering the significance in the medical world and the economics behind it.
When a provider’s services are coded or billed inaccurately and then submitted for payment, it is a “false claim.” Used to combat these kinds of discrepancies is the Federal False Claims Act (FCA). Initially enacted by Congress during the Civil War to challenge fraud by suppliers to the Union Army (resulting in its moniker, “Lincoln’s Law”), the FCA is the most widely used tool for combating fraud against our government. The FCA imposes liability on any person who, “knowingly presents, or causes to be presented to an officer or employee of the United States Government…a false or fraudulent claim for payment or approval.” Therefore, in the health care field, the applicable language creates the potential for liability on any individual involved in the claim preparation and/or submission process. This includes both the provider and her employer, as well as any number of individuals responsible for preparing, computing or submitting claims to the payor.
While proper billing and coding is everyone’s responsibility, it is generally understood that the ultimate responsibility for compliance falls on the provider. After all, every claim contains the provider’s unique provider number as well as her signature, thereby theoretically signifying that everything has been reviewed and authenticated. As a result, if a fine or penalty is levied, it is generally directed at the provider. Despite this general trend, it is important to keep in mind that the law applies to everyone and it is certainly possible for ancillary staff to be targeted, especially if mistakes are recurrent. An example is found in the case of U.S. vs. Cabrera-Diaz and Arbona (106 F.Supp.2d 234 (D.P.R. 2000)). In that case, the United States government filed an FCA action against an anesthesiologist, alleging his improper submission of over $400,000 in Medicare billings. The action also targeted his “billing secretary,” Ms. Arbona. The Court entered a civil judgment against them in the amount of $1.3 million, and found that they were “jointly and severally liable” for the fraud. While this specific example highlights a case that was most likely based on intentional fraud, it is important to keep in mind that even if mistakes are innocently made, a claim of fraud can still be made.
The best way for providers to protect themselves is to ensure that all staff and personnel they work with are well-versed in the guidelines created by Medicare and third parties, and that they undergo proper training and certification. Taking steps to properly train staff and ensure their awareness of the potential for liability reduces the likelihood of inaccurate claims, and allows the provider to maintain her focus on quality patient care.
For questions or help with your own coding, billing, and collection responsibilities, or for general physician contract review assistance, please call Leigh Ann O'Neill at 317-989-4833 or email her at loneill@lauthoneill.com.
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