APMA News - September 2013 - (Page 40)

Coverage Corner By J. Kevin West, Esq. Medical Billing: Current Legal and Ethical Issues—Part One Based on my experience as PICA’s national Medicare counsel, and more than 20 years working with health-care providers, including podiatric physicians, I believe that nearly every podiatric physician has experienced one or more of the medical billing scenarios described below. These scenarios present serious legal and ethical mineﬁelds, and how practitioners react when faced with these situations may have signiﬁcant consequences. Scenario 1: You discover that you have been overpaid by Medicare because your ofﬁce mistakenly billed for services that were not provided. If you determine that your ofﬁce has been overpaid by Medicare because you billed for services that were not rendered, you have both a legal and ethical obligation to refund the monies to Medicare promptly. For example, suppose you discover that your ofﬁce billed Medicare for three X-ray views on 10 patients when only two views were taken. You should refund to Medicare the amount of the difference between the reimbursement for the three-view code vis-à-vis the two-view code. If copays and deductibles are involved, you may have to make a refund to the patient and/or to a secondary payer, as well. Most, if not all, states have professional ethics rules requiring podiatric physicians to bill honestly and ethically for their services. As to Medicare, federal laws require providers to refund overpayments resulting from the intentional submission of a “false” claim. Until recently, however, there was some question as to whether a refund was required for unintentional or inadvertent billing errors. This uncertainty was cleared up to some extent in the recent enactment of the Fraud Enforcement and Recovery Act (FERA) of 2009. FERA does away with the requirement that the government prove “fraudulent intent” in holding practitioners liable for keeping overpayments. Now, a practitioner can be liable for keeping an overpayment, even where the overpayment was not caused by any fraudulent act by the practitioner. This liability would include not only the amount of the overpayment itself, but also penalties of up to $10,000 per claim. Dealing with an overpayment situation, like the one described in the example with X-rays, is relatively simple if the overbilling is a one-time or relatively isolated occurrence. A simple letter to Medicare enclosing the refund and providing a clear explanation usually is sufﬁcient, and it is rare in my experience that Medicare will “come after” practitioners who make such refunds, especially when the amount at issue is relatively minor. Matters become much more complicated, however, if you ﬁnd that billing for services that were not provided is a widespread or systemic problem that happened over a period of months or years. The Affordable Care Act passed in 2010 cre40 APMA News September 2013 ated a new obligation for health-care providers to self-report billing overpayments within 60 days of discovery. Accordingly, in a systemic overbilling situation, experienced health-care counsel must be consulted to guide you through the process. Critical decisions must be made as to how extensively you must investigate to identify and quantify overpayments, and how your ﬁndings will be reported to Medicare. The Ofﬁce of Inspector General Self-Disclosure Protocol may need to be followed in some situations, the determination of which is a legal decision. You may have to hire coding and statistical experts to assist in quantifying overpayments involving a large range of services over a signiﬁcant period of time. Scenario 2: You discover that you may have been overpaid by Medicare because an arguably incorrect code was billed for certain services. This scenario, while similar to Scenario 1, is different. In Scenario 1, it is clear that you billed for a service you did not provide. In this scenario, whether there is an overpayment comes down to a technical coding matter. For example, suppose you billed an ofﬁce visit with CPT 99213, but there is a question as to whether 99212 should have been billed instead. What do you do here? In my opinion (and many health-care attorneys I speak with and listen to agree), a refund is not required unless there is a clear coding and billing error, whether intentional or not. There is often a “gray area” as to whether an ofﬁce visit qualiﬁes for a 99213 or 99212, as I have discovered handling numerous Medicare audit investigations and appeals. If a reasonable argument can be made that the service justiﬁes payment of 99213, I would not recommend making a refund merely because an equally good argument can be made for code 99212. Even certiﬁed professional coders can, and often do, differ on the correct code in a given situation. ■ Part two of this article will be published in the next issue of APMA News. J. Kevin West, Esq., is a partner in the Boise, ID, law ﬁrm of Parsons Behle & Latimer. He specializes in health-care law and is PICA’s national counsel for Medicare and HIPAA matters. Contact PICA Director of Risk Management Barbara Bellione, RN, CPHRM, ARM, at 800-251-5727, ext. 2052, or e-mail bbellione@picagroup.com.

Table of Contents for the Digital Edition of APMA News - September 2013

APMA News - September 2013
President’s Message
Contents
What Happens in Vegas: The 2013 Annual Scientific Meeting
Annual Scientific Meeting Sponsors
Humanitarian Surgical Missions: A Different Kind of Residency Training
Collaboration is Key at Limb Salvage Clinic
Center for Professional Advocacy Reviews Recent California Medicaid Lawsuit
Oregon Podiatrists Achieve Physician Status
Letters to the Editor: Solving Our Residency Crisis; Remembering Our Heroes
Resolutions Submission Deadlines
Reimbursement
ICD-10: How to Code for Painful Hammer Toes
Federal Advocacy Forum
Cosponsors to the Helping Ensure Life- and Limb-Saving Access to Podiatric Physicians Act
APMAPAC Chair Report
Coverage Corner
Bylaws Propositions Due
IT Consultant
Website Wisdom
On the Road with APMA
Small Business 101
CPME Update
In Short
Worthy of Note
Affiliates Corner
New Members
Death Notices
APMAPAC Update
Development Update
Classified Advertising
Dates to Remember
Advertising Index
10 Questions
Your APMA

APMA News - September 2013