Profiles in Whistleblower: Upcoding in Medicine
This post will be the first in a periodically published series entitled “Profiles in Whistleblower Law,” each entry into which will highlight a different, commonly encountered unlawful scheme in the world of whistleblower law. In this entry, we briefly explore a common fraudulent scheme carried out by medical providers called “upcoding,” in which those providers manipulate medical billing codes to falsely seek reimbursement for more or different products services than were actually provided.
What Is Upcoding?
After medical providers provide products or services, they bill for them, most often to their patients’ health insurance providers. To make a very long story short, there are extensive and detailed systems of so called “codes” that correspond to each product, service, or level of service that medical providers use to bill for these products and services, and each code has an associated monetary value. Here’s an illustrative example, pertaining to x-rays performed on the foot:
73600: Radiologic examination, ankle; two views, [$31.06]
73610: complete, minimum of three views [$35.25]
73620: Radiologic examination, foot; two views [$27.52]
73630: complete, minimum of three views [$27.51]
73660: Radiologic examination; toe or toes, minimum of two views [$28.15]
Say, for instance, that a Medicare patient gets an x-ray on their ankle with two views. Their medical provider, a podiatrist perhaps, will submit a bill to Medicare, containing the code 73600, along with codes corresponding to other goods or services provided. Medicare, through its agents, then reviews the billing, determines if it is covered, and if so, what portion it will pay.
The medical billing codes that Medicare uses are grouped together based on the type of products or services provided, as seen in the example above, with several codes often corresponding to the same type of procedure. In such instances, the sequential codes account for variations in how complex, costly, or time-consuming the specific procedure actually is, e.g., whether an ankle x-ray involved two images or three.
It’s easy to imagine all the ways that an unscrupulous provider might try to cheat this system. The most obvious example would be to simply submit claims for patients that were never actually seen, which can happen, but that can cause the patient to ask questions, and it might appear too obvious. To avoid those and other contingencies, medical providers who upcode instead bill for a more expensive variation of a service or product similar to the one actually provided. In the above example, that might entail billing the code 73610, the code for three x-ray views of an ankle, when only two were actually performed, such that 73600 was the appropriate code. In these scenarios, the difference in price is often not great, but if it’s a procedure that is performed frequently, the extra money can add up over time!
A Real-Life Example from Georgia
In U.S. ex rel. Dildine v. Pandya, et al., No. 1:13-CV-3336-LMM (N.D. Ga), This case involved an ophthalmology practice in Conyers, Georgia that was alleged to have upcoded in two different ways. First, it routinely billed Medicare using the CPT code for complex cataract surgery (66982, reimbursed at the time at $838.27), when the code for routine cataract extraction (66984, reimbursed at the time at $604.92) was appropriate. According to Medicare regulations, the complex code is only for use in exceptional circumstances, such as when a patient’s pupils need to be manually dilated. Despite the fact that complex cataract surgery comprised less than 2% of the Medicare claims for cataract surgery submitted by most providers, the practice billed the complex code for over half of its cataract surgeries in four calendar years.
The second scheme concerned the upcoding of Evaluation and Management, or E&M codes, an area where upcoding occurs very frequently. E&M services are billed at different “levels” depending on (1) the type of visit, and (2) the intensity of the visit. Despite spending no more than five or ten minutes with the patients that she saw, which should have resulted in the billing of the Level I CPT code, 99211, defendants billed a Level 5 code, 99215, nearly every time, resulting in much higher, false claims for reimbursement.
In the end, the doctor paid over $1,850,000 to resolve these and other allegations. See https://www.justice.gov/usao-ndga/pr/conyers-doctor-pays-1850000-resolve-allegations-she-performed-and-billed-medically.
