Know Your Liability for Aiding and Abetting
As a coder, you are liable for more than you may think.
By David M. Vaughn, JD, CPC
In the federal criminal arena, you can be liable both for performing an illegal act and for aiding and abetting a criminal act performed by superiors. You also may be liable for helping superiors to avoid getting caught. Let’s explore the federal criminal laws regarding “aiding and abetting,” “accessory after the fact,” and “conspiracy,” where you do not directly perpetrate the fraud, but perform some act that facilitates the fraud.
As our first example, assume your employing physician comes to you and says, “Collections are down since you’ve been hired.” Then you explain to him that his evaluation and management (E/M) documentation is insufficient to warrant what he has been marking on the charge ticket, and you have been re-coding the visits based on the E/M documentation he submitted. The physician advises that he, not you, will decide what code will be billed, and that you will code by the charge ticket, rather than on the documentation. To save your job, you agree.
Your Liability Under the Law
The federal criminal statute relating to aiding and abetting, 18 USC 2, states, “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.” In other words, the helper is just as guilty as the mastermind of the scheme.
The U. S. Department of Justice (DOJ) publishes a Criminal Resource Manual for prosecutors. The manual states, the “defendant participates in the criminal activity if he has acted in some affirmative manner designed to aid the venture. … Although the aider and abettor need not know the means by which the crime is carried out, he must share in the requisite intent. In order to show shared intent, the government must present evidence that the accomplice had knowledge he was furthering the crime.”
This means that although you have to know your conduct will facilitate an illegal act, you do not have to come up with the idea, nor are you required to have profited from the illegal act. The manual states, “It is unnecessary to show that the aider and abettor received compensation or have any stake in the transaction to be convicted.” Meaning you do not have to participate in every phase of the illegal conduct. The manual instructs that the prosecutor “need not show the defendant participated in every phase of the venture.” You are not required to have committed the act for a long time, or on more than one occasion. Finally, the fact that your job is threatened is not a defense to the illegal conduct. Although legal coercion is a defense (e.g., a gun to your head), the threat of losing your job is not considered to be a type of legal coercion that allows you to escape criminal culpability.
Not every act is considered aiding and abetting. For example, the manual states, “more than mere presence at the scene is required.” If you work at a physician’s office where improper coding occurs, it doesn’t automatically make you criminally responsible. And, “more is needed than simply knowledge that the crime was to be committed.” For example, if you saw your neighbor shoot his wife, it doesn’t mean that you aided and abetted in her murder. “Participation” in the criminal act—not just knowledge of it—is required to show culpability. The DOJ manual defines participation as “the defendant engaged is some affirmative conduct designed to aid the venture.”
As in the aforementioned example, “participation” would exist if your job was to handwrite the code on the charge sheet for data entry to bill (and this is the case in many offices). If you knew the physicians’ codes were upcoded, and you nevertheless wrote those codes on the charge ticket for data entry to enter into the billing system, you would be participating in the overcoding, and be an aider and abettor in violation 18 USC 2.
You Can Be Culpable “After the Fact”
What if you do not know about the illegal billing at the time it occurred, but learn about it after the fact and help the physician to conceal it? Under this scenario, you cannot be prosecuted as an aider and abettor, but could be prosecuted as “an accessory after the fact.” According to federal statute 18 USC 3, “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts, or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
An accessory after the fact requires more than just knowledge—it requires an affirmative act. For example, in the hypothetical scenario of the physician who overcodes his E/M encounters, assume a zone program integrity contractor (ZPIC) is coming on site to conduct an audit of the overcoded E/M encounters. Your physician asks you to hide the original patient charts in the attic while he dictates new patient charts, so his documentation will meet the code level billed. By agreeing to hide the original records, you have assisted in preventing the ZPIC from catching the overcoding in the original patient charts. This would make you an accessory after the fact (and you would have committed obstruction of justice, which is an additional criminal offense).
Conspiracy Can Ensnare You, Even If You Don’t Act
In addition to liability as an aider and abettor and an accessory after the fact, you can be prosecuted under the broadest criminal statute the government uses to prosecute medical office personnel: the conspiracy statute, 18 USC 371. The conspiracy statute states that if two or more persons agree to defraud the United States, and if one of the persons commits an act to further the conspiracy, each is liable for the object of the conspiracy, even if only one person commits the act.
Returning to our example, assume you refuse to rewrite the upcoded E/M codes on the charge ticket because you don’t want to commit any affirmative act associated with the upcoding, but you agree that your physician’s upcoded claims can be entered into the billing software by data entry. Your agreement, combined with your physician’s act, allows the government to contend that you were a co-conspirator to your physician’s conduct, even though only the physician wrote down the incorrect codes.
The “take home message” is that if you participate in, agree to, or hide improper coding, knowing that it is improper coding, you have potential criminal exposure, even if you received no compensation, did not actually perform the improper coding, and feared for the loss of employment.
Although legal coercion (e.g., a gun to your head) is a defense, the threat of losing your job is not considered to be a type of legal coercion that allows you to escape criminal culpability.
David M. Vaughn, JD, CPC, is the founding member of Vaughn & Associates, LLC. He graduated from Mississippi College with Special Distinction (Magna Cum Laude) in 1974, graduated from LSU Law School in 1977, and has been a certified coder since 1999. David is the author of several coding and compliance books, and is the editor of a coding newsletter. He is a national speaker for health care associations and facilities. His practice consists of representing providers in federal and state prosecutions, qui tam cases, and Medicare and third-party payer audits. He also conducts audits and provides education to providers.
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