Document, Document, Document:
“If it isn’t written it wasn’t done”
and other Medicare Myths
Presented by
David M. Glaser, Esq.
Fredrikson & Byron, P.A.
(612) 347-7143
dglaser@fredlaw.com
Gregory J. Warner
Compliance Officer
Mayo Foundation
(507) 284-9029
gwarner@mayo.edu
Our Agenda: Dispelling These
Myths:
• “If it isn’t written, it wasn’t done.”
• “The carrier has total authority to determine
medical necessity.”
• “Reassignment violations are fraud.”
• “NPs and PAs can’t bill high level visits.”
• “Incident to services must be billed by the
supervising physician.”
• “All physician notes must be signed.”
We will also discuss common
misperceptions related to:
•
•
•
•
Consultations.
Preventive medicine.
Teaching physician rules.
Determining the date to refund
overpayments.
Separating Fact From Fiction
• McCarthyism is alive and well, and living in
the health care industry.
• Carriers, consultants, clients and counselors
are often guilty of mistakenly believing some
policy or conventional wisdom is based in law.
• Sometimes, they’ll use interesting techniques
to change behavior.
Question Authority
• Is it a requirement or a guideline?
• Medicare -- ask if it is in the statute, regulations,
Medicare Carriers Manual, or carrier policy.
• Get a copy of the rule in writing.
• Ask your lawyer/consultant to explain all
arguments supporting and refuting their position.
• Determine if the rule was properly promulgated.
• Just because they sound smart doesn’t mean
they’re right.
Scenario 1
• A physician saw 1700 patients, you have
charts for 1200. The physician has some
“seat of the pants” notes for some of the
remaining patients scribbled on the backs of
scratch paper.
• You compare your charts against the
documentation guidelines and discover the
following:
Audit Results
Dr. A
Dr. B
Dr. C
Dr. D
Dr. E
Under-coded
Correctly-coded
Over-coded
13%
50
15
0
33
76%
30
50
19
33
11%
20
35
81
33
“If it isn’t written, it wasn’t
done.”
• Good advice, but not the law.
• Medicare payment is determined by the
content of the service, not the content of the
medical record.
• The documentation guidelines are just that:
guidelines (although the carrier won’t
believe that).
“If it isn’t written, it wasn’t
done.”
• Carriers typically point to Social Security
Act Section 1833(e), which they often cite
incorrectly as 1833(d)(1)(e) as support for
their position.
Role of Documentation: The
Law
• “No payment shall be made to any provider
of services or other person under this part
unless there has been furnished such
information as may be necessary in order to
determine the amounts due such provider or
other person under this part for the period
with respect to which the amounts are being
paid or for any prior period.”
Social Security Act §1833(e)
Role of Documentation: The
Cases
• Carriers also often cite Anesthesiologists
Affiliated v. Sullivan, 941 F.2d 678 (8th Cir.
1991).
• In that case, the court rejected the defendant’s
argument that even if the clinic made billing
errors they were “merely a matter of unartful
description of the services it provided.”
Role of Documentation: The
Cases
• This situation is distinguishable from E&M
cases because the anesthesiologists’ defense
was even if they did not provide services as
claimed, they provided other reimbursable
services.
• In short, that is a case where the bill does not
accurately describe the work done.
• In most E&M cases, the bill describes the work
done, there is simply a lack of documentation.
Role of Documentation: The
Cases
• A much better analysis is United States v.
Krizek, 859 F. Supp. 5 (D.D.C 1994), 909
F.Supp. 32 (D.D.C. 1995, rev’d in part and
aff’d in part 111 F.3d 934(D.C. Cir. 1997)
The documentation in this case was
“seriously deficient.”
The court presumed certain work was done,
despite a lack of documentation.
• But See U.S. ex rel Semtner v. Medical
Consultants, Inc., 170 F.R.D. 490 (1997).
Role of Documentation:
Interpretation
• Common Sense
– Fire
– Scenario 2
• Regardless of any case law, the regulatory
framework is quite clear.
• The Code of Federal Regulations contains no
general documentation requirements. 42 C.F.R.
4245 requires physicians to furnish “sufficent
information.” (There are specfic requirements for
teaching services.)
Role of Documentation:
Guidance from HCFA
• The CPT Assistant explains: “it is important
to note that these are Guidelines, not a law
or rule. Physicians need not modify their
record keeping practices at all.”
CPT Assistant Vol. 5, Issue 1, Winter 1995
• HCFA has publicly stated that physicians
are not required to use the Documentation
Guidelines.
Role of Documentation:
Guidance from HCFA
“Documentation Guidelines for Evaluation and
Management Services Questions and Answers
These questions and answers have been jointly
developed by the Health Care Financing
Administration (HCFA) and the American Medical
Association (AMA) March 1995.
1. Are these guidelines required?
No. Physicians are not required to use these
guidelines in documenting their services.
Role of Documentation
However, it is important to note that all physicians are
potentially subject to post payment review. In the event
of a review, Medicare carriers will be using these
guidelines in helping them to determine/verify that the
reported services were actually rendered. Physicians may
find the format of the new guidelines convenient to follow
and consistent with their current medical record keeping.
Their usage will help facilitate communication with the
carrier about the services provided, if that becomes
necessary. Varying formats of documentation (e.g. SOAP
notes) will be accepted by the Medicare carrier, as long as
the basic information is discernible.”
Role of Documentation
“6. How will the guidelines be utilized if I am
reviewed by the carrier?
If an evaluation and management review is
indicated, Carriers will request medical records for
specific patients and encounters. The
documentation guidelines will be used as a
template for that review. If the documentation is
not sufficient to support the level of service
provided, the Carrier will contact the physician for
additional information.”
Role of Documentation:
Guidance from HCFA
• Documentation is relevant only if there is doubt
that the services were truly rendered:
“7. What are my chances of being reviewed?
Review of evaluation and management services
will only occur if evidence of significant aberrant
reporting patterns is detected (i.e., based on
national, carrier or specialty profiles). Our
reviews are conducted on a ‘focused’ basis--there
is no random review.”
Role of Documentation:
Guidance from HCFA
• The MCM confirms that documentation is relevant
only when there is doubt services were really
provided. MCM § 7103.1(I) says an overpayment
exists if the “Physician Does Not Submit
Documentation to Substantiate That He Performed
Services Billed to Program Where There is
Question as to Whether They Were Actually
Performed . . .” (bold added).
• The MCM does not articulate any documentation
obligation, with the exception of the TPR.
Role of Documentation:
Interpretation
• MCM Section 15501.B requires carriers to
“instruct physicians to select the code for
the service based upon the content of the
service.”
• Instructions from many carriers specify that
physicians, not their office staff, are to
select the code. For example, a Travelers
Medicare Bulletin read:
Role of Documentation:
Travelers Medicare Bulletin
• “Physician involvement in code selection--E&M
Codes were designed to encourage physicians to
become more closely involved in coding. Since
office staff are not normally able to assess the
differences in the amount or intensity of work
associated with each encounter and since the
physician is responsible (financially and legally)
for submitted claims, it is essential that the
physician actually code for the services
provided.” (Underlining in original.)
Role of Documentation:
OIG Interpretation
• The OIG agrees: “accurate coding is
achieved when physicians select codes
which consistently fit the services
physicians actually provided.”
OIG Report Number OEI-04-92-01060,
Physician Use of New Visit Codes, May
1995.
Role of Documentation:
Interpretation
HCFA has taken a similar position: “Although
good documentation can establish the medical
necessity and good quality of care for a procedure,
it is not necessarily true that poor documentation
proves that the medical necessity for a procedure
was not present or that poor quality of care was
rendered.”
OIG Report Number OEI-07-91-00680, Physician
Office Surgery, June 1993, Medicare and Medicaid
Guide (CCH) ¶ 41, 497, page 36063.
Choosing a Code
• Time is irrelevant unless 50% of the time is
counseling or coordination of care and that
is documented coordination of care.
• History, exam, decision making.
• Documentation for risk management and
billing are related, not identical.
Role of Documentation:
The Bottom Line
• Good advice, but not the law.
• Poor documentation increases the difficulty of
prevailing in an audit.
• As of now, the carriers are instructed to use
both the 1995 and the 1997 Guidelines,
choosing the result most favorable to the
physician.
• “If it isn’t a rule, it isn’t an overpayment.”
Audit Review Results - What Do
They Mean?
Documentation
Documentation Documentation
Does Not
Exceeded Code Supports Code Support Code
Under coded Correctly coded
Over coded
Dr. A
Dr. B
Dr. C
Dr. D
Dr. E
13%
50
15
0
33
76%
30
50
19
33
11%
20
35
81
33
Common Dilemma: Should We
Quantify Exposure
• The government may use it against you.
• It is an effective method of convincing
skeptics.
Common Dilemma: Should We
Quantify Exposure
• If you do it, include a disclaimer like “our
chart reviews are not audits designed to
determine whether we have been overpaid
or underpaid. First, they are not a
statistically valid sample. Moreover, they
only review the documentation, without
attempting to determine the amount of work
you actually performed. Therefore, these
figures are far from scientific.
Common Dilemma: Should We
Quantify Exposure
However, since a Medicare review would
base the initial overpayment determination
solely on the documentation, these figures
give you some idea of how your charts
would fare in the first phase of a Medicare
review.”
Common Dilemma: Retrospective
vs. Concurrent Reviews
• Consultants/Lawyers argue duty to refund
mandates concurrent reviews.
• This logic seems flawed.
• Anecdotal evidence suggests concurrent
reviews are more effective.
Scenario 2
• The president of your group is very productive.
One day, a patient calls and complains she was
billed for a complete physical, but she never
removed any clothes. A review of that
physician’s appointment book reveals that the
physician worked from 9-3, took lunch, and saw
67 patients, 6 of which were billed as
comprehensive physicals. The documentation
supports all but 5 of the visits. (There is a
comprehensive physical documented for the
woman who called.)
Scenario 3
• One of your physicians likes to perform
thorough exams of patients. The carrier
medical director feels that the exams could
have been more cursory, and denies the
exams as being not medically necessary.
“The Carrier Has Total Authority to
Determine Medical Necessity.”
• While carriers like to believe this, many
courts have adopted the “treating physician
rule.”
• The theory is that the patient’s physician is
objective. Therefore, the physician’s
opinion receives deference.
• Medicare’s legislative history supports this
argument.
“The Carrier Has Total Authority to
Determine Medical Necessity.”
“It is a well-settled rule in Social Security Disability
cases that the expert medical opinion of a patient’s
treating physician is to be accorded deference by the
secretary and is binding unless contradicted by
substantial evidence… This rule may well apply with
even greater force in the context of Medicare
reimbursement. The legislative history of the Medicare
Statute makes clear the essential role of the attending
physician in the statutory scheme; ‘the physician is to be
the key figure in determining utilization of health
services.’” Gartmann v. Security of the U.S.
Department of HHS, 633 F.Supp. 671, 680-681(E.D.
N.Y. 1986).
“The Carrier Has Total Authority
to Determine Medical Necessity.”
• A carrier is expected to place “significant
reliance on the informed opinion of the
treating physician” and to give “extra
weight” to the treating physician’s opinion.
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th
Cir. 1991).
“The Carrier Has Total Authority to
Determine Medical Necessity.”
• MCM § 7300.5.B forbids carriers from recouping
an overpayment on the basis of a lack of medical
necessity if a situation is ambiguous enough that
the carrier requests its own physician consultant to
review whether the services are covered.
• This should place the burden of proof on a carrier
during an appeal.
• It provides a firm ground for challenging the
carrier’s arguments that office visits can be denied
as not medically necessary.
Scenario 4
• You have a new doctor join the staff. The
billing staff, recognizing that it takes 6
months to get a provider number, simply
use a recently departed physician’s number
while waiting for the new number to arrive.
“It Is Fraud to Violate the
Reassignment.”
• Half myth, half truth.
• Reassignment in a nutshell: Only the person
performing a service can bill for it.
• The reassignment rules create exceptions
allowing other organizations to bill for a
physician’s service. Technically, these
exceptions apply only to physicians and
suppliers of services.
Reassignment Violations Don’t
Create an Overpayment
• At least one false claim complaint (U.S. ex.
rel Semtner v. Medical Consultants, Inc.)
has included counts based on reassignment
violations. However, that complaint ignores a
key fact.
• MCM 3060.D says a violation of the
reassignment rules does not create an
overpayment.
MCM 3060.D
• “An otherwise correct Medicare payment
made to an ineligible recipient under a
reassignment or other authorization by the
physician or other supplier does not
constitute a program overpayment. It does
allow revocation of assignment.
MCM 3060.D (cont.)
Sanctions may be invoked under §3060.13
against a physician or other supplier to
prevent him from executing or continuing
in effect such an authorization in the future,
but neither the physician or other supplier
nor the ineligible recipient is required to
repay the Medicare payment.”
Reassignment Violations Don’t
Create an Overpayment
• The question is whether a claim can be false even
when it does not result in an overpayment. Courts
have differed on that question.
• U.S. ex rel. Schumer v. Hughes Aircraft
Company, 63 F.3d 1512, 1525 (9th Cir. 1995) and
U.S. v. Kensington Hospital, 760 F. Supp. 1120,
1127 (E.D. Pa. 1991) allow the government to
penalize claims even without proof of damages.
Reassignment Violations Don’t
Create an Overpayment
• By contrast, Stinson v. Provident Life &
Accident Ins. Co., 721 F. Supp. 1247, 1258-59
(S.D. Fla. 1989) and Young-Montenay, Inc. v.
U.S., 15 F.3d 1040 (Fed. Cir. 1994) hold that
absent damages, false claims penalties are
inappropriate.
• Even most courts that don’t require specific
proof of damages require some impact on the
Federal Treasury.
Scenario 5
• An oncologist documents a consult as “Ms.
Patient was referred to me by Dr. Smith to
manage her colon cancer.” At the initial
visit, the oncologist begins a course of
chemotherapy. The oncologist mails a copy
of his chart notes back to Dr. Smith with a
brief cover letter thanking Dr. Smith for the
referral.
“It’s not a consult if you assume
care of the problem.”
• Key test: is there a transfer of care. A
transfer is the shift in responsibility for the
patient’s complete care to the receiving
physician at the time of the referral, where
the receiving physician documents approval
of care in advance.
• Consultants may initiate diagnostic and
therapeutic services after the initial or a
subsequent visit.
“If the chart says referral, it can’t
be a consult.”
• The use of the word “referral” should be
discouraged, because it is misleading, but
its presence does not change the reality of
the visit.
• Determine whether a physician is seeking
an opinion or advice regarding a specific
problem.
Is it a Consult or Visit?
• “A request for a consultation . . . and the
need for consultation must be documented
in the patient’s medical record.” MCM
15506.D.
• A written report must be provided to the
referring physician. This can be a letter or
communication via the chart. (What about
a carbon copy?)
Is it a Consult or Visit?
• Any subsequent visit (i.e., not something to
complete the initial consultation) is an
established patient or SH visit.
• Can have a consultation within a group if the
consultant is in a separate specialty.
• Don’t forget -- Need all three key
components: history, exam and medical
decision-making.
Is it a Consult or Visit?
• Consultation for pre-operative clearance:
Medicare pays the appropriate consultation
code for a pre-operative consultation for a
new or established patient performed by any
physician at the request of a surgeon, as long
as all of the requirements for billing the
consultation codes are met.
• These rules only apply to Medicare. For all
other payors, rely on the CPT definition.
Scenario 6
• You have a OB/GYN NP who sees patients
referred in from Internal Medicine
physicians. She has been billing the visits
as consultations.
“NPs and PAs Can Not Bill
for a Consultation.”
• HCFA spokespeople, and most carriers say
that nurse practitioners and physician
assistants can not bill for a consultation.
• This disregards the language in MCM
15501.G that suggests that PAs, NPs, CNSs
and midwives can perform any service in
CPT codes 99201-99499 when performed
incident to a physician’s services.
MCM § 15501.G
“Services Furnished Incident To Physician’s
Service By Nonphysician Practitioners-Advise physicians when evaluation and
management services are furnished incident to
a physician’s service by a nonphysician
practitioner who meets the criteria in §§ 2154,
2156, 2158 or 2160, the physician may bill the
CPT code that describes the evaluation that
service furnished.
MCM § 15501.G (cont.)
When evaluation and management services
are furnished incident to a physician’s
service by a nonphysician employee of the
physician, not as part of a physician service,
and the employee does not meet the criteria
in §§ 2154, 2156, 2158 or 2160, the
physician bills code 99211 for the service.”
“NPs and PAs Can’t Bill
a Level 4 or a Level 5.”
• HCFA spokespeople and carriers have often
said that NPs and PAs can not perform
complex medical decision making, and
therefore can not bill any high level visit.
• No authority is cited for that proposition.
• Even if they can not perform high level
decision making, NPs and PAs can do
comprehensive H & Ps, allowing high level
established patient visits.
“NPs and PAs must bill exclusively
independently or ‘incident to.’”
• As long as you meet the requirements for
billing “incident to” you can bill “incident to”
and get paid 15% more, even if you have an
independent number.
• Know the “incident to” requirements,
including:
– W-2 or leased employee relationship.
– Initial and ongoing contact with a clinic MD.
– MD supervision in the office suite.
– The service can not be in a hospital/SNF
A good lesson
• Sometimes professional and other
associations have an agenda, and may
inadvertently mischaracterize a legal
situation. Beware.
“‘Incident to’ Services must be billed
under the Supervising Physician”
• There is no national guidance stating whose
UPIN should be on the claim. I prefer billing
under the attending physician’s number, but
either approach seems defensible.
MCM 2050.3
• “In highly organized clients, particularly those that
are departmentalized, direct, personal physician
supervision may be the responsibility of several
physicians as opposed to an individual attending
physician. In this situation, medical management
of all services provided in a clinic is assured. A
physician ordering a particular service need not be
the physician who is supervising the service.
Therefore, services performed by therapists and
other aides are covered even though they are
performed in another department of the clinic.”
Scenario 7
• You have been providing routine screening
exams to patients, and billing them to
Medicare with a proper “V” diagnostic code
to get a denial. You discover Medicare has
been paying the claims. You also discover
that you have not received an ABN from the
patient.
Senario 8
• My grandmother, who has high blood
pressure, diabetes, and a host of other
conditions she loves to mention, calls and
schedules an “annual physical.”
Preventive Medicine
• This is one of the most confusing coding issues.
• Split billing is the answer.
• The covered visit is provided in lieu of part of the
preventive medicine’s service of equal value to the
visit. The physician may charge the beneficiary
the difference between the physician’s current
established charge for the preventive medicine
service and the established charge for the covered
visit. MCM § 15501.E
Screening
• There could be covered and non-covered
procedures performed during an encounter.
Consider each test individually. Procedures
which are for screening for asymptomatic
conditions are non-covered; those ordered to
diagnose or monitor a system, medical
condition or treatment are “evaluated for
medical necessity and, if covered, are paid.”
Modifier 32.
“You Can’t Bill Without a
Waiver.”
• Legally, a physician is not required to give a
beneficiary advanced written notice that the
preventive visit is uncovered. However, the
physician is responsible for notifying the
patient in advance of his/her liability for
charges for services that are not medically
necessary to treat the illness or injury.
“You Can’t Bill Without a
Waiver.”
• Technically, it is better to refer to them as an
advanced beneficiary notice.
• ABNs are only required when an otherwise
covered service is considered not medically
necessary.
• If the law excludes a service, no waiver is
required.
• That said, waivers are an excellent patient
relations tool.
“All charts must be signed.”
• Carriers/consultants often claim that
signatures are required.
• There is no rule requiring signatures for
clinic services.
• Conditions of participation for
hospitals/other facilities may require
signatures in the chart; COPs are different
from reimbursement rules.
Scenario 9
• A teaching physician is involved in three
different procedures at the same time. The
key portions of the three procedures do not
overlap.
The Conflict: Regs vs. Manual
• MCM 15016 says:
“In order to bill for two overlapping surgeries,
the teaching surgeon must be present during the
key portions of both operations. In the case of
three concurrent surgical procedures, the role of
the teaching surgeon (but not anesthesiologist) in
each of the cases is classified as a supervisory
service to a hospital rather than a physician
service to an individual beneficiary and is not
payable under the Medicare fee schedule.”
The Conflict: Regs vs. Manual
• The rules have no comparable limitation.
42 CFR § 415.172 says: “In the case of
surgical, high risk, or other complex
procedures, the teaching physician must be
present during all critical portions of the
procedure and immediately available to
furnish services during the entire service or
procedure.”
“Teaching Physician Rules Only
Apply in Academic Centers.”
• Determine if independent billing is possible:
– Is the individual in an approved residential
program?
– Does the time count toward their graduation
requirements?
– Is the service in a hospital or a clinic?
• Be particularly careful with fellows.
“Teaching Physician Rules Only
Apply in Academic Centers.”
• Understand the teaching physician rules. For
E & M services the attending physician must
either:
– Be present while the resident performs the service;
or
– Personally perform the key components of the
service.
• The documentation must reflect the teaching
physician’s role.
“All Billing Errors Are Fraud, So They
Should be Reported to The OIG Using
the Self-Disclosure Protocols.”
• Take the government at its word; distinguish
between “fraudulent” (intentionally or reckless
false) and innocent “erroneous” claims. The Draft
Compliance Program Guidance repeats Janet
Reno’s quote that “we are not seeking to punish
someone for honest billing mistakes.”
• If someone wasn’t trying to take advantage of the
system, I wouldn’t label the conduct as
fraudulent.
Scenario 10
• Your cardiologists has rounded on a patient
following cardiac surgery. The cardiac
surgeon has been following the patient
throughout the stay. The cardiologist has
billed subsequent hospital visits.
“Only one physician can provide
hospital care.”
• Carriers are told “if the services of a physician
other than the surgeon are required during a
post operative period for an underlying
condition or medical complication, the other
physician reports the appropriate evaluation
and management code. No modifiers are
necessary on the claim. An example is a
cardiologist who manages underlying
cardiovascular conditions of a patient.”
MCM § 4822.
Calculating Voluntary Refunds
• One of the most common questions when
refunding money is “how far back should I
go.”
• First, determine when the relevant rule was
promulgated. Don’t refund before you were
reasonably on notice.
How Far Back Do You Go?
• The False Claims Act
– Six years.
– Three years from the date when “facts material
to the right of action are known or reasonably
should have been known” by the United States,
but no more than ten years after the violation.
• Waiver of overpayments when “without
fault” and recovery violates equity and good
conscience.
The Law: 42 U.S.C. §1395gg(c)
• There shall be no adjustment as provided in subsection
(b) (nor shall there be recovery) in any case where the
incorrect payment has been made (including payments
under section 1814(e)) with respect to an individual
who is without fault or where the adjustment (or
recovery) would be made by decreasing payments to
which another person who is without fault is entitled
as provided in subsection (b)(4), if such adjustment
(or recovery) would defeat the purposes of Title II or
Title XVIII or would be against equity and good
conscience. Adjustment or recovery of an incorrect
payment (or only such part of an incorrect payment as
the Secretary determines to be inconsistent with the
The Law: 42 U.S.C. §1395gg(c)
(Cont.)
purposes of this Title) against an individual who is
without fault shall be deemed to be against equity and
good conscience if (A) the incorrect payment was made
for expenses incurred for items or services for which
payment may not be made under this Title by reason of
the provisions of paragraph (1) or (9) of section 1862(a)
and (B) if the Secretary’s determination that such
payment was incorrect was made subsequent to the third
year following the year in which notice of such payment
was sent to such individual; except that the Secretary
may reduce such three-year period to not less than one
year if he finds such reduction is consistent with the
objectives of this Title. (citations omitted)
Carriers/Intermediaries Always
Believe You are at Fault
• “The law prescribes special rules when an
overpayment is discovered (i.e., it is determined that a
payment was incorrect) subsequent to the third
calendar year after the year in which it was made.
Under these rules, deem an overpaid physician
without fault without further development in the
absence of evidence to the contrary, i.e., if there is no
indication that the physician was at fault. Where the
beneficiary was liable, HCFA waives recovery from
the beneficiary if he was without fault.
Carriers/Intermediaries Always Believe
You are at Fault (Cont.)
(This provision provides limited relief to physicians
since, in most cases, the facts which bring to light the
overpayment are sufficient basis for determining
whether the physician was at fault.) Do not deem a
physician without fault under this provision with
respect to overpayments for noncovered services
which are part of a pattern of billing for similar
services. In such cases, initiate necessary
development to establish whether the physician
was without fault.”
Medicare Carriers Manual Section 7106.
Limitation on Reopening Claims
• Both the Medicare Intermediary Manual
and the Carriers Manual indicate that claims
may only be reopened after 48 months when
there is evidence of “fraud or similar fault.”
• “Fraud or similar fault” requires some
intentional wrongdoing.
Fraud or Similar Fault
• Deception by a person who knows that the deception
may result in authorized benefits to someone;
• An act which approximates fraud, i.e., the furnishing
of information which the individual knows is incorrect
or incomplete, or the deliberate concealment of
information, with or without a judicial finding of
fraud;
• A pattern of program abuse by physicians or suppliers
resulting from practices that are inconsistent with
accepted sound fiscal, business, or medical practice,
such as:
Fraud or Similar Fault (Cont.)
– The furnishing of services that are in excess of the
individual’s needs, or of a quality that does not meet
professionally recognized standards of health care; or
– The submittal of incorrect, incomplete or misleading
information that results in payment for services:
• That were not furnished;
• More expensive than those furnished; or
• That were not furnished under the conditions indicated on the
bill.
Fraud or Similar Fault (Cont.)
– The submittal of, or causing the submittal of, bills or
requests for payment containing charges for Medicare
patients that are substantially in excess of the amounts
the physician or supplier customarily charges;
– An act or pattern of program abuse involving collusion
between the supplier and the recipient that results in
higher costs or charges to the Medicare program; or
– Any act that constitutes fraud under Federal or State
law.
Fraud or Similar Fault (Cont.)
• A Determination that “Fraud or Similar Fault”
is present depends on the facts. For example, a
claim may be reopened more than 4 years after
payment was approved, if the evidence
establishes a pattern of billing by a physician
for weekly routine visits to patients in a
nursing home for whom, under established
standards of good medical practice, not more
than one visit a month is medically reasonable
and necessary.