Is it Time for Coding Liability Insurance?

Vol. 12 •Issue 24 • Page 18
Is it Time for Coding Liability Insurance?

Compliance plan? Check. Monthly coding audits? Check. Liability insurance coverage? Check again. It seems that at least once a week there’s a story in the news about a hospital or physician practice being investigated for Medicare fraud. Did you ever stop and think that this week it could be your employer? Worse yet, have you considered the possibility of being named in a fraud suit? Would you be covered if you were?

It Can Happen to You

“We’re seeing it,” said Sandra Soerries, CPC, CPC-H, director of health care compliance services for Grant Thornton in Kansas City. What she’s referring to is non-physician personnel who are being brought up on fraud charges.

Whether this is a sign of things to come as the government enforces the False Claims Act in its effort to crack down on fraud and abuse remains to be seen. But what it comes down to is accountability.

“Under fraud and abuse, the guidelines say that whoever willingly and knowingly submits a false claim could be at fault,” said Soerries. The government paints with a broad brush on the topic of accountability, including those who “should have known better,” she stressed. In the case of fraud, “While the provider’s name is on the claim form, it’s also a matter of whoever else was involved in processing it.”

Soerries has seen this first hand. “I am familiar with a court case in which a biller and an owner of a billing service, as well as other non-physician personnel, were brought up and indicted on fraud charges and pled guilty.”

Doesn’t My Employer Cover Me?

In the case of coders who work for an employer, “The employer should have liability insurance to cover incidences [of fraud],” suggested Claire Dixon-Lee, PhD, RHIA, president of MC Strategies Inc. Furthermore, according to her, the compliance plan for the business should address errors. “The employer should have a fully executed compliance plan that outlines the manner in which situations like this will be dealt with–both responsibilities of the coder and the employer,” Dr. Dixon-Lee clarified.

But don’t make assumptions. Sometimes, Soerries suggested, it’s a good idea to check. “Coders should evaluate whether or not they are covered by their employer, and what they are looking for is errors and omissions insurance,” she specified. “Some of the malpractice or liability coverage that a provider has will cover that, but others exclude it, so it’s up to the coding professional to investigate and see what kind of coverage they have.”

If they are not covered, Soerries advised, “Coders may want to look to the professional organizations they belong to for coverage options.” For example, the American Academy of Professional Coders (AAPC) offers group policies that individuals can buy.

Coders in Risky Business

Let’s face it, most coders in health information management (HIM) departments are not liability policyholders. But certain groups are at a higher risk than others.

Top on the risk list is independent HIM professionals, according to Dr. Dixon-Lee. Without question, “In-dependent coders/consultants should have their own liability insurance,” she affirmed.

Another high-risk group is students. This is why Walters State Commu-nity College in Tennessee requires its medical coding students to carry liability insurance, according to Gail Winkler, RHIA, director of health information technology (HIT) programs at the school. Her students are often sent to facilities for first-hand coding experience.

“We wouldn’t send our students to these sites without liability insurance,” said Winkler. “We want to cover all bases.” As part of the course, students are required to pay $40 to cover the insurance. Student coverage is offered through the Marsh Affinity Group Services in Chicago.

In fact, Winkler goes even further, recommending the students maintain the insurance throughout their professional career. Premiums on appropriate coverage can run around $90 annually, and as she sees it, “If I was out there coding now, I would want to have my own liability insurance.”

Winkler pointed to the large number of Qui Tam suits in the news, observing, “The government wants coders to be whistleblowers in cases where providers are instructing them to do fraudulent things.” The question remains, however: If they don’t blow the whistle and they know fraud is occurring, where does that leave them?

As a Qui Tam lawyer, Thomas R. Grande, partner with Davis Levin Livingston Grande in Honolulu, provided some insight. “Depending on the circumstances, there may be instances where you have an obligation to ensure that fraudulent activity is not taking place. If you have uncovered fraud and you are concerned about your legal obligations, you should immediately seek legal advice,” he said. Most important, “If you are part of wrongdoing, you have potential liability.” Grande’s message for anyone who works with Medicare claims is simple: “Protect yourself.”

The smaller the professional environment, the more this advice applies. “Someone in a smaller facility or office has greater responsibility in terms of how the procedures are coded,” said Grande. What’s more, there tends to be a greater obligation to oblige. For example, he offered, “If a physician comes in and says, ‘I want you to backdate a treatment date to show that the physician’s assistant was in with me during the procedure,’ it may be difficult for an employee to refuse to do that.”

Some Advice on Advice

Aside from backdated claims, unbundled codes and misused modifiers, another area of concern for coders and other HIM professionals is the advice they give out.

According to Dr. Dixon-Lee, “Coders should always be fully familiar with and follow the AHA Coding Clinic’s Coding Guidelines and should never render opinions that are not based on Centers for Medicare and Medicaid Services (CMS) rules and official coding guidelines.” What’s more, you want to be able to prove that the advice you gave was above board.

“If you’re asked to give advice about a particular facility or a particular procedure, make sure it’s in writing, so there’s no misunderstanding as to the advice you’re giving,” said Grande. “You don’t want to be in a position where the verbal statement to which you make may be misconstrued or misstated.”

“You’re totally accountable for what you tell people as far as advising them is concerned,” agreed Soerries. “We document everything we give out here. We document the questions asked as well as the information that we give back to our clients—even our non-clients.”

Ideally, Grande offered, “I think everyone wants to do the right thing, particularly if they’re coding professionals and they’re faced with an ethical choice.” But forefront in the minds of coders should be this question: “How can I protect myself?” It’s an important question, Grande said, and unfortunately, it’s one that more health care professionals are being forced to ask themselves.

Linda Gross is an assistant editor at ADVANCE.