Ethics as a Key Component of Professionalismaapcperfect.s3.amazonaws.com/a3c7c3fe-6fa1-4d67... · Ethics and Professionalism Ethics as a Key Component of Professionalism Michael D

Ethics and Professionalism

Ethics as a Key Component of

Professionalism

Michael D. Miscoe, JD, CPC, CASCC, CUC, CCPC, CPCO, CPMA

President-Elect, AAPC National Advisory Board

Member, AAPC Legal Advisory Board

Chair, AAPC Ethics Committee

AAPC Certified ICD-10 Trainer


Objectives

• Understanding what it means to be a “Professional”

• Understanding Obligations Common to all Professions

• The Intersection between Ethics and Professionalism

• The Revised AAPC Code of Ethics


Introduction

• The Challenges/Obligations that are Common to all Professionals

– Maintaining Competency

• Maintaining Technical Competence

• Ensuring Accuracy of Work Product.

– Upholding Appropriate Ethical Standards

• Communications - w/ Employers, Clients and Peers

• Work Related and Non-Work Related Conduct


Ethics and Professionalism• What is a “professional”?

adj. 1. a. Of, relating to, engaged in, or suitable for a profession.b. Conforming to the standards of a profession: professional behavior.

2. Engaging in a given activity as a source of livelihood or as a career.3. Performed by persons receiving pay.4. Having or showing great skill; expert: a professional repair job.

n. 1. A person following a profession, especially a learned profession.2. One who earns a living in a given or implied occupation.3. A skilled practitioner; an expert.

Due to the personal and confidential nature of many professional services, and thus the necessity to place a great deal of trust in them, most professionals are subject to strict codes of conduct enshrining rigorous ethical and moral obligations.


What is a Professional?

Therefore, a “professional” is someone that:

1. Has advanced knowledge, training, certification and/or licensure in a

particular field of study;

2. Is subject to ethical standards pertaining to professional work as well

as personal conduct standards for professional and non-professional

activities; and

3. Engages in the use of that knowledge for payment for the benefit of

others.


As Applied to AAPC and the

Business of Healthcare

Auditing, Billing, Coding, Compliance, Practice Management

Professionals are Individuals that:

1. providers and/or healthcare entities turn to for their expertise.

2. attain competency through training, certification and ongoing

continuing education.

3. conform work and non work conduct to ethical standards (e.g. the

AAPC Code of Ethics).

4. are subject to sanction for failing to meet or maintain professional

standards.


As Applied to AAPC and the

Business of Healthcare

• Attaining Competency

1. On the job training.

2. Formal training

• Community college courses

• AAPC Live or on-line Curriculum.

3. Self-Teaching.

Regardless of the manner of training, competence is demonstrated through the

taking and passing of an appropriate certification examination.

• Maintaining Competency


AAPC Code of Ethics• Commitment to ethical professional conduct is not only expected of every AAPC

member but compliance with the AAPC Code of Ethics is a condition of

membership.

• The Code of Ethics enables AAPC to establish for current and future members the

nature of the ethical responsibilities held in common by its members.

• The Code of Ethics also provides confidence to those who employ AAPC members

that an AAPC member can be trusted to conduct themselves in a professional and

ethical manner.

• The Code of Ethics establishes core principles of appropriate ethical behavior that

is expected of AAPC members.

• All AAPC members are required to adhere to the Code of Ethics

• The Code of Ethics serves as the basis for evaluating ethical complaints initiated

against AAPC members.


AAPC Code of Ethics

It shall be the responsibility of every AAPC member, as a condition of membership,

to conduct themselves in all professional activities in a manner consistent with ALL of

the following ethical principles of professional conduct:

• Integrity

• Respect

• Commitment

• Competence

• Fairness

• Responsibility

Adherence to these ethical standards assists in assuring public confidence in the

integrity and professionalism of AAPC members. Failure to conform professional

conduct to these ethical standards, as determined by AAPC's Ethics Committee, may

result in the loss of membership with AAPC.


Integrity

• Defined: firm adherence to a code of values - incorruptibility

– Doing the right thing even when no one is watching

– Always choosing the harder right rather than the easier wrong.

• To have true integrity, you must adhere to the same code of values in both professional and personal endeavors.

• Failure to meet commitments/obligations or to accept responsibility for one's actions.

• Sub-terms:

– Honesty

– Trustworthiness

– Forthrightness

– Accountability


Integrity - Example

• While at a conference, a work emergency arises and

you have to take a call. You quietly excuse yourself

from the lecture. The session is 90 minutes long and

you miss approximately an hour of the session. You do

make it back in time to get the CEU code. After the

conference, you load your CEU codes into the tracker

and claim the entire 1.5 CEUs.


Respect

• Defined:

– a feeling of admiring someone or something that is good, valuable,

important, etc.

– a feeling or understanding that someone or something is important, serious,

etc., and should be treated in an appropriate way

– A feeling you should have about yourself, your profession and others.

– Beyond the feeling – how you show respect.

• Sub-terms:

– Self-Respect

– Honor

– Dignity


Respect - Examples

• Non-constructive or unfair criticism / criticizing in a mean spirited manner.

• Unprofessional criticism of AAPC, colleagues, co-workers, providers or

the coding profession.

• Bullying; in person or through electronic media

• Unprofessional conduct in communications to colleagues, or in on-line

postings

• Unprofessional appearance in a professional setting or use of

unprofessional language (verbal or written) in professional

communication.

• Discriminatory statements or actions.


Commitment

• Defined:

– a promise to do or give something

– a promise to be loyal to someone or something

– the attitude of someone who works very hard to do or support something

• Commitment to adhere to professional and ethical standards.

• Putting the best interests of the profession and those that seek your expertise over your personal interests

• Sub-terms:

– Dedication

– Loyalty

– Devotion


Commitment - Examples

• Failing to maintain CEU's, which are necessary to

develop professional knowledge.

• Failure to report un-ethical conduct by other members.

• Failing to intervene or report compliance issues to

employer or compliance department.

• Consistent errors in work product.


Competence

• Defined:

– the ability to do something well

– the quality or state of being competent

• Having the requisite level of expertise to complete an assigned task.

• Note: Certification demonstrates the minimal level of competence.

• Sub-terms:

– Qualification

– Quality of Work Product


Competence - Examples

• Accepting work that you are not qualified to perform, are not

willing to get qualified (through education) to perform, or

where you are not willing to get assistance from a qualified

individual.

• Failure to maintain knowledge of applicable code or medical

policy changes.

• Failing to research policies, regulations, etc. resulting in

reckless errors in work product resulting in unentitled

payments or denials of payments.


Fairness

• Defined:

– agreeing with what is thought to be right or acceptable

– treating people in a way that does not favor some over others

– avoiding being too harsh or critical

• Not permitting personal opinions or bias influence professional

opinions or work product.

• Sub-terms:

– Impartiality

– Objectivity


Fairness - Examples

• Allowing personal feelings, emotions or bias to influence the

results of professional work (e.g. providing an opinion for a fee

that the member knows or should know is incorrect or

unjustifiable).

• Posting false or misleading information that is derogatory to

another member, to the profession of coding, or to the AAPC

that is intended to or is reasonably likely to cause unjustified

reputational harm.

• Discriminatory statements or actions.


Responsibility

• Defined:

– a duty or task that you are required or expected to do

– something that you should do because it is morally right, legally required, etc.

• Being liable

• Worthiness as the recipient of another's trust or confidence.

• Sub-terms:

– Accountability/Reliability

– Obligation

– Duty


Responsibility - Examples

• Shifting blame for errors, omissions or inadequacies to others.

• Not completing assigned tasks.

• Failing to identify and/or report coding/billing errors or other

compliance issues to employer or compliance team where it is

your responsibility to do so.

• Failing to meet the obligations of membership and/or the

Code of Ethics.


Intersection Between Ethics and Professionalism

• A review of the core principles of the Code of Ethics reveals traits that

all “Professionals” are expected to have.

• Ethical traits are necessary among “Professionals” given that those that

seek and pay for work by a Professional demand, expect and rely on

the accuracy of the professional’s work product.

• Because of the above, there are often significant negative

consequences to those that seek professional work where the

“professional” has no integrity, is not respectful, is not committed, is

incompetent, is unfair, or is not responsible.


Intersection Between Ethics and Professionalism

• The importance of the “P” in AAPC cannot be overlooked or understated.

• Being “Professional” in all that we do, as evidenced by our adherence to

the core ethical principles outlined in the AAPC Code of Ethics, is what

sets us apart - even from those with similar knowledge or skills.

• Adherence to Professional standards engenders public trust and

confidence in the quality of our work. Abuse of that trust harms not only

the individual professional, but the image of the entire Profession.

• For this reason, all Professional organizations vigorously enforce

compliance with professional and ethical conduct standards.



• Professionals can be characterized as…

– Those who exceed minimum standards of knowledge.

– Those who constantly strive to develop and enhance their

expertise.

– Those willing to abide by strict ethical and moral standards

in the use of their expertise.

Are we as “professional” as we should be?

Are we as “professional” as we can be?


Fraud As Applied to the Coder

• The False Claims Act Standard - 31 U.S.C §3729– Legally false claim

– Presented to the United States

– Knowledge of falsity

– Damage to the government (most cases do not require a showing of damage)

• Common Law Standard– a representation of an existing fact;

– its materiality;

– its falsity;

– knowledge of its falsity;

– intent that the misrepresentation be relied on by the carrier;

– carrier’s reasonable ignorance of the falsity of the representation;

– that the carrier did rely on the truth of the representation;

– that the carrier suffered economic damage as a result.


Coders Liable?§ 3729. False claims

(a)Liability for certain acts.—

(1) In general.--Subject to paragraph (2), any person who--

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;

(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;

(C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);

* * *

(G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government,

is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Public Law 104-410 [FN1]), plus 3 times the amount of damages which the Government sustains because of the act of that person.


Legal Falsity

• For a claim to be legally false it must not only contain a

misrepresentation, but the misrepresentation must be

material to the decision to pay or the determination of

the amount of payment due.


Beyond the Code

• Material Representations Beyond the Service Code

– Patient

– Date of Service

– Place of Service

– Provider of Service

– Circumstances (modifiers)

– Condition (diagnosis) that the service is provided for.

– Genesis of the condition causing the need for a service (auto, comp, other)

– Medical Necessity


Defeating Falsity

• Proving the Representations Are Correct/Reasonable– Controlling vs. Persuasive Standards

• If you are right with Medicare, are you really right with the rest of the (payer) world?

– Controlling Standards• Arise under a contractual relationship that establishes a duty to abide by certain coding/billing rules.

• Arise under a statute such as may be the case for an auto or workers compensation insurance case (or Medicare…)

• Conflicts

– Persuasive Coding Standards• May be used only in the absence of a controlling standard to establish that your representations

about the service or supply provided were reasonable.

• Non-compliance with a persuasive standard should never form the basis of an allegation of error let alone allegations of fraud.


Defeating Falsity

• What if you are wrong but the code or utilization rules

are ambiguous?

– Code Utilization Rules Exist

– Code Utilization Rules Do Not Exist


Defeating Falsity

• Ambiguity - As applied by the courts…• U.S. ex rel Kersulis v. Rehab Care Group, 2007 WL 294122 (E.D. Ark.)

• A rule, regulation, or billing code must be capable of multiple reasonable

interpretations

• The billing rule must not unambiguously speak for itself

• Any interpretation of an ambiguous billing rule must be reasonable even if it is

incorrect ultimately

• When a billing rule is legitimately ambiguous, and the provider considers the billing

practice at issue to be the “generally accepted practice”, that position is legally

defensible as long as the defendant does not suspect something is wrong and

does not deliberately avoid learning more.


Defeating Falsity

• Ambiguity - As applied by the courts…• U.S. ex rel Kersulis v. Rehab Care Group, 2007 WL 294122 (E.D. Ark.)

• If the payor fails to issue formal guidance to clarify an ambiguous billing

rule, the rule remains ambiguous and non-compliance is at worst a mistake

and does not establish FCA liability

• On the other hand, a payer’s issuance of formal guidance can cure an

ambiguity and create FCA liability for non-compliance if evidence of

sufficient publication (but not necessarily receipt) exist

• The payor’s failure to “negative” any reasonable interpretation that

would make the defendant’s statement factually correct continues to result in

ambiguity

• Taking reasonable steps to attempt to ensure compliance with an ambiguous

rule, such as internal audits, help to establish the ambiguity defense.


Legally False but not Fraud?

• Knowingly – Defined in FCA as follows:

(1)the terms "knowing" and "knowingly”

(A) mean that a person, with respect to information

(i) has actual knowledge of the information;

(ii) acts in deliberate ignorance of the truth or falsity of the

information; or

(iii) acts in reckless disregard of the truth or falsity of the

information;

(B) require no proof of specific intent to defraud;


Intent as a Degree of Wrongness

• Knowingly and the Degree of Knowledge:

• Mistake

• Negligence

• Recklessness

• Express/Implied False Certification Theories

• Implied False Certification – submitting a claim implies compliance with all governing rules that are a precondition to payment. Mikes v. Straus

• Mistakes/negligence are not fraud. Recklessness is required. Wang v. FMC Corp

• Duty to be familiar with payment rules. U.S. v. Mackby


Mistakes Not Fraud

• Mistakes are not fraud

• Complexity of reimbursement standard often justifies

judicial empathy in FCA cases

• Court will not "hold a defendant to the government's strict

interpretation [of a statutory requirement], so long as

defendant's interpretation was reasonable. Luckey v.

Baxter Healthcare Corp

• What about a pattern of mistakes?


Structural Causes of Coding Errors

• In some cases, poor structural controls can lead to errors

and potentially demonstrate intent

• Charge master has incorrect codes

• Charge master does not permit selection of the correct code

• Billing systems automatically apply exclusionary modifiers (or codes

are pre-loaded with modifiers)

• Billing systems that automatically assign diagnoses based on the

service performed to ensure coverage.

• Computerized coding of the EMR?


DOJ Yates Memo• DOJ Pushing to Identify and Prosecute the Individuals Responsible

for Corporate Misconduct

• DOJ Leveraging “Cooperation Credit”

– Entity must provide documents that will help the government identify

“decision makers” who are responsible for misconduct

• Coders are usually not the corporate decision-makers the government

is looking for – but could be:

–Evidence of conspiracy/collusion in the misconduct

–Financial participation


Case Examples

• Talaga conviction:

– Biller for Care Plan Oversight services on behalf of “Medicall Physicians

Group and Home Care America” in Illinois.

– Indicted as “active” conspirator with physician and medical director

– Convicted after jury trial of:

• One Count of Conspiracy to Commit Healthcare Fraud

• Six Counts of Healthcare Fraud

• Three Counts of Making False Statements Related to a Healthcare Matter (for

“manufacturing” information needed to submit claims for services that did not

occur).

– Sentenced to 45 months imprisonment and repayment of $1M in restitution.


Case Examples

• Reno conviction:

– Third party biller for Physician owned DME supplier.

– Was an “active” conspirator with physician owner

– Miscoded ankle-foot orthotics provided to nursing home residents as part of a “Fall

Prevention Program”. Reported custom AFO’s where the AFO provided did not have

the custom features described by the HCPCS code reported.

– Biller knew that submitting claims under one DMEPOS provider number would draw

attention so she billed claims under a variety of entities to disguise the volume of

claims being submitted.

– Plead guilty to one misdemeanor count of submitting false claims to Medicare –

sentenced to 5 years probation and ordered to pay $10,571 in restitution.

– The physician involved was sentenced to 51 months in prison and ordered to pay

$2,276,221 in restitution.


Case Examples• Shim conviction:

– Shim was the Office Manager for a PT owned clinic providing PT, OT and DC services.

– Was an “active” conspirator in the scheme devised by the PT owner of the clinic (Jeffrey Suh).

– Billed for licensed services that were not provided

– Billed for services under licensed provider when licensed provider was out of the country.

– Sentenced to 8 months imprisonment and ordered to pay $115,136 in restitution.

– The PT who organized the scheme was sentenced to 42 months in prison and had to forfeit two properties valued at over $1M each.

– An OT and DC who were also employed by the clinic and part of the scheme were sentenced to 16 and 13 months imprisonment respectively. A PT Assistant involved in the scheme was sentenced to 12 months imprisonment.


Coder Liability

• Yates Memo and its implications

– Memo that outlines DOJ efforts to identify and prosecute

individuals responsible for corporate misconduct

– DOJ leverages “cooperation credit” in order to obtain

information regarding the identity of those responsible for

misconduct.

– Focus is on the decision-makers.

– Practical Advice for Coders


Coders Charged/Sentenced for False Claims

• Maine - Dawn Grover, an employee working in the billing department

at a Bangor-area women’s health clinic, pled guilty to submitting false

claims to public and private health insurance programs, announced

U.S. Attorney for the District of Maine Thomas E. Delahnty II on March

14. After an internal audit, the health clinic discovered a pattern of

billing for more extensive examinations than those actually performed,

billing for procedures not performed, and altering medical records. The

audit also found a 90% error rate that resulted in overpayments to the

clinics of more than $300,000. Grover faces a maximum sentence of

10 years’ imprisonment, a fine of $250,000, and an order to pay full

restitution to the affected health insurance programs.



• U.S. Attorney for the Southern District of Indiana Joseph H. Hogsettannounced March 24 that Andrea R. Williams was sentenced to two years' probation for committing healthcare fraud when she used her position as the billing manager of a patient transportation services company to defraud the Medicaid program out of approximately $102,012. Federal and state investigators found that, for a two-and-a-half year period, Williams submitted claims for payment to Medicaid falsely indicating that the company was providing all of its services to wheelchair bound patients, thereby causing the Medicaid program to pay at a higher rate. In addition, Williams falsely represented that most patients required an additional attendant to help transport them. The sentencing judge also ordered Williams to pay full restitution to the Medicaid program.



• According to the U.S. Attorney’s Office in Syracuse, Bonnie Meislin, office manager of Upstate Pain Medicine, was found guilty Wednesday of healthcare fraud and conspiring to defraud Medicare with her former employer, Mahesh Kuthuru, MD.

• “Prosecutors said Meislin worked for Dr. Mahesh Kuthuru’s Upstate Pain Medicine offices in Fulton and Utica. In 2009, he moved to Las Vegas and opened another practice. Authorities say in 2010, Meislin and Kuthuru started submitting false bills that indicted Kuthuru had treated patients at his upstate offices when in fact he was in Nevada or outside the country.”

• Meislin faces up to 10 years in prison and a $250,000 fine.


Coder Liability

• The falsity of the claim occurred as direct result of actions by the coder.

–Solely…

–In collusion with others…Additional conspiracy liability?

• Financial Incentives

• Any attempt to cover up the error

–Alteration of records (obstruction)


Conclusion• Coders can no longer rely on:

– This is the way I have always done it.

– This is what my friend told me to do.

– Universal approaches to coding.

• Coding errors can have serious consequences from a revenue perspective. “Knowing” errors can have more significant implications and can lead to civil or criminal liability. The concept of being a “professional” coder implies knowing how to find the appropriate standards to correctly represent the services provided.

• Our ethical obligations require that we competently advise the physicians/entities that look to us for our expertise. While not an easy task, it is the level of diligence demanded of all professionals.


Questions?

CEU Code:

Documents

Ethics as a Key Component of Professionalismaapcperfect.s3.amazonaws.com/a3c7c3fe-6fa1-4d67... · Ethics and Professionalism Ethics as a Key Component of Professionalism Michael D