Guest Post: An obligation to report noncompliance

by Rose T. Dunn, MBA, RHIA, CPA, FACHE, FHFMA, CHPS

One of the many coder/CDI obligations is to report noncompliant activities. Your employer’s compliance plan may direct you to report these noncompliant observations to the compliance officer or a compliance hotline.

When you report your observations, you may do so anonymously or by identifying yourself. It is your decision which approach you take, but regardless, you still have the obligation to report.

Commonly reported coding-relating issues are:

• Documenting services long after the service was provided and possibly never provided
• Routinely reporting high-level evaluation and management or MS-DRG codes (upcoding) when the documentation does not support the high level
• Failure to code to the highest level of specificity when the documentation is present
• Queries that encourage or lead a physician to add documentation which would increase the level of reimbursement for a particular case
• Adding charges to a claim for services provided
• Providing services that are not medically necessary

When a coder/CDI specialist observes actions inconsistent with quality healthcare, the more detail provided to the compliance officer will help in the investigation. Depending on investigation findings, major, minor, or no changes may result. Sometimes, actions observed may appear inappropriate, but upon investigation, the actions were consistent with clinical practice.

For example, a coder/CDI specialist may consider the actions of another staff member to be too zealous in optimizing the codes to achieve higher reimbursement. The term optimization is defined as a procedure used to make a system or design as effective or functional as possible.

When coders “optimize” the coding process, they attempt to make coding for reimbursement as accurate as possible. This process may involve querying the physician for clarification of conditions or augmenting conditions documented. If done in a nonleading way, the organization will obtain the highest entitled reimbursement.

When the investigation illustrates the need to make changes, you will probably see activities such as reeducation, updating of policies, and possibly the removal of staff members.

Qui tam

Unfortunately, there are times when an individual reports legitimate compliance concerns and does not see actions being taken to correct the concern. In these situations, a person may wish to “blow the whistle” and contact an agency outside of the organization to file a lawsuit. This type of lawsuit is known as a qui tam lawsuit.

Qui tam lawsuits are a type of civil lawsuit whistleblowers bring under the False Claims Act, a law that rewards whistleblowers if their qui tam cases recover funds for the government. Qui tam is an abbreviation of the Latin phrase meaning “who as well for the king as for himself sues in this matter.”

Qui tam cases are different from other types of lawsuits, such as those involving personal injuries, because the person bringing the lawsuit is not the one who has been harmed.

A recent example of qui tam is the South Florida case where physician Mario Baez, a partner in a physician practice, turned whistleblower on his partner when he determined that his partner was submitting fraudulent claims. Nearly all the patients seen at IM Medical and Lake Worth Medical were diagnosed with a serious but rare spinal disorder called ankylosing spondylitis, when only 1 in 1,000 people truly have this disorder, according to Baez. The disorder increased the risk score for the physicians who were participating in a Medicare Advantage health plan reimbursement arrangement with Humana. The higher the risk score, the greater the reimbursement. The interesting twist on this qui tam is that Baez was not just whistleblowing on his partner but also on Humana. Humana should have been able to detect this fraudulent activity.

Taking a qui tam action requires much consideration, because often the whistleblower is identified during the legal proceedings. Having legal counsel guidance will be beneficial. If the case is lost, the situation can be embarrassing.

However, if the case is won, there may be financial rewards for the whistleblower depending on how much the whistleblower’s details of the situation contributed to the success of the suit. Regardless, following your convictions to surface inappropriate care should result in better care for patients thereafter, and that is the right thing to do.

Editor’s note: Dunn is a past president of the American Health Information Management Association and recipient of its 1997 Distinguished Member and 2008 Legacy awards. In 2011, she served as the interim CEO of AHIMA and received a Distinguished Service Award from its board of directors. Dunn is the chief operating officer of First Class Solutions, Inc., a health information management consulting firm based in St. Louis. Opinions expressed are that of the author and do not necessarily represent HCPro, ACDIS, or any of its subsidiaries. This article is excerpted from JustCoding’s Practical Guide to Coding Management.