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Improper Coding Could Lead To A Criminal Conviction And Exclusion

As the federal government is casting a wider net to detect and prosecute fraud in the medical industry, the question is not if your medical billing and coding will come under scrutiny,  but when. Medical billing and coding is translating what medical procedures were performed and why.  Coding amounts to a language of numbers and letters that are unique to the medical field.  It is just as important to have skilled health care law attorneys, as it is to have skilled medical billers and coders.  Health care law attorneys should be proficient in the descriptions and implications of specific CPT and ICD-9/ICD-10 codes.  Hiring legal counsel who does not understand the intricacies of coding, is like using an attorney who speaks French or German in an English speaking court.

Each claim is a communication between a medical provider and federal health program, such as Medicare, Medicaid, or Tricare.  Whether the claim is filed on paper or electronically, each claim for outpatient services includes the following certification:

“In submitting this claim for payment from federal funds, I certify that:

1) the information on this from is true, accurate and complete;

2) I have familiarized myself with all applicable laws, regulations, and program instructions, which are available from the Medicare contractor;

3) I have provided or will provide sufficient information required to allow the government to make an informed eligibility and payment decision;

4) this claim, whether submitted by me or on my behalf by my designated billing company, complies with all applicable Medicare and/or Medicaid laws, regulations, and program instructions for payment including but not limited to the Federal anti-kickback statute and Physician Self-Referral law (Stark Law);

5) the services on this form were medically necessary and personally furnished by me or were furnished incident to my professional service by my employee under my direct supervision, except as otherwise expressly permitted by Medicare or Tricare;

6) for each service rendered incident to my professional service, the identity (legal name and NPI, license #, or SSN) of the primary individual rendering each service is reported in the designated section.”

This certification is an assertion that all criteria are met and that to the best of the medical provider’s knowledge, the services are payable.  This statement does not leave much to question ….or does it?

Conditions of Payment

The terms “Conditions of Payment” and “Conditions of Participation” may seem similar but they can encompass very different violations and legal defenses.  “Conditions of Payment” refer to the actual procedures performed.  Were the actual procedures done? Were the actual procedures medically necessary? These are the questions surrounding “conditions of payment”.  Physicians, hospitals and other medical providers must ensure that the level of service or services provided meet the criteria for the specific codes used, on the claims submitted for payment.  Medical providers must also ensure that the diagnosis codes used, accurately describe the patient’s condition and symptoms.  The diagnosis code justifies the service or the level of service performed.  If the procedure or diagnosis codes used do not accurately reflect what procedures were performed, when they were performed, and why they were performed, then the claim submitted is false.  Every claim submitted includes a certification as to the truthfulness of the information submitted.  By submitting an inaccurate claim, the medical provider is not only submitting a false claim, but a false statement.  Both false claims and false statements can be the basis of a False Claim Action. A False Claim Action can bring severe civil and criminal penalties. These penalties are assessed on a per claim basis and can multiply at a rapid rate, if the inaccurate billing is systematic at the practice level.

Conditions of Participation

“Conditions of Participation” refers to the requirements of participation in a federal health program.  Before a medical provider can receive payment from a federal health program such as Medicare, Medicaid, or Tricare, they must apply for “participation.”  This process involves filling out applications and submitting documents, to show licensure or accreditation.  The conditions may also require certain levels of liability insurance or for medical providers to hold certain certifications.  Since this information is provided at the time of applying for participation and not continuously, it is possible that a medical provider may fall out of compliance after receiving participation status.  In addition, accreditation is a condition of participation.  For example, radiology providers who perform Advanced Diagnostic Imaging (ADI) (ex: MRI, CT or PET scans) for Medicare patients in freestanding facilities, must hold specific accreditation from the American College of Radiology (ACR), the Intersocietal Accreditation Commission (IAC), The Joint Commission (TJC) or RadSite.  Each one of these accrediting organizations has requirements or conditions for accreditation to be awarded.  Different false claim actions have been brought against providers who failed to comply with these conditions of accreditation, after the accreditation was awarded.    If the medical provider is out of compliance with the accreditation organization requirements, it would follow that the medical provider is out of compliance with the requirements of the conditions of participation with the federal health program.  If the medical provider is out of compliance for participation, payment should not be made to the provider.  In addition, the certification attested to on the claim form is a false statement, because the medical provider is stating that they are in compliance with “laws, regulations and program instructions.”  Although this is a far-reaching concept, it has arisen in whistleblower actions. Such an action requires a legal defense.

Physicians and other medical provider must ensure that their lawyer speaks their language.  Knowledge of correct coding, medical terminology, and credentialing is essential to providing quality representation to health care providers.  Make sure your criminal defense attorney speaks the right language. You can be assured that the federal government’s attorney is skilled at interpreting the alphanumeric coding language of the medical industry.  Chose a health care law attorney who understands the language. The attorneys at Chapman Law Group are well-versed in medical billing and code.  Chapman Law Group understands the credentialing process and the process for medical providers to become eligible to participate in federal health programs.  When choosing a criminal defense attorney make sure he/she is a competent health care law attorney.