Health Care and Law

The unethical practice of medical up-coding

June 20, 2014
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No one enjoys opening medical bills — or paying them, for that matter. While the average American experiences slight bouts of sticker shock whenever a large procedure or unexpected test is added to their visit costs, the unethical practice of up-coding has left many patients paying for procedures that were either unnecessary or never even performed. What rights do you have as a patient? How can this behavior be caught and reprimanded?

Traditionally, up-coding occurs when a patient comes in for a limited and specific problem — knee or back pain, for example — and the doctor bills for a much more comprehensive exam. The most complex visits should be reserved for lengthy examinations, and hour or more, which include the evaluation of several bodily systems, such as the heart, gastrointestinal, skin and neurological and typically involve a life-threatening illness. Thus, any doctor who claims that every patient needs this comprehensive of an exam is on shaky ground. It is conceivable, particularly in specialized practices such as oncology, that there would be many high-level exams and consultations. But for the general practice physician, they should be the exception, 5 percent or fewer of patients, rather than the rule.

A patient can determine the level of exam that her physician bills for by examining the doctor’s invoice or checking the code used for the visit on the Medicare or insurance company explanation of benefits or EOB. Office visits are usually assigned an Evaluation and Management, or E/M, code of 99201-99205, with 99201 being low complexity and 99205 indicating the highest complexity. If your physician spent 10-15 minutes with you and billed a high-level code, it may be time to call the doctor’s office and inquire about the bill. If you do not get a satisfactory answer and can see a pattern in previous or later billings, consider calling an attorney who specializes in False Claims Act or Qui Tam cases. If you blow the whistle on Medicare or Medicaid fraud, you may be eligible for a financial reward from the money recovered by the government.

From the perspective of an employee working in a physician’s office or other medical practice, there are also some telltale red flags that may indicate fraudulent billing. The first sign is an office form that only provides one or two options for the patient encounter code. For example: “circle one: 99203-99204.” The government looks askance at physicians who claim they know in advance that every visit will concern a complex issue. In my experience as a whistleblower attorney, I have also encountered instances where office managers or billing supervisors demand that every procedure be coded as complex, even when supporting documentation is lacking. This can sometimes manifest itself in the “20-hour day” bills where the cumulative minutes required to support the billing codes appear grossly inflated.

Many physicians work occasional long shifts, but week after week of 100-120 hours stretches credulity. This goes hand in hand with billing on dates when the physician is not in the office or on vacation. While most of us would welcome the ability to bi-locate, it is not legally possible to be two places at the same time. Employees enjoy protection from retaliation provided by the False Claims Act, which requires re-instatement plus double lost pay and benefits, as well as attorney’s fees, for employees retaliated against for attempting to stop fraud. As with patients, a call to an experienced whistleblower’s attorney will help guide your decisions. 

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