Surgical Assist & Medicare False Claims

maryir

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If a surgical assist (appropriate documentation is in chart) is charged to Medicare and it is for a procedure Medicare does not reimburse for surgical assist services, would it be considered fraudulent billing?

I am being told by my management that if I bill for the assist (basically to get the denial and to document RVU's for Dr's services) I am committing a fraudulent service. Is that correct???
 

thomas7331

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I'm not a lawyer, but I think it is incorrect to say that this is fraudulent if your coding supports what is in the documentation. It's hard to know why they're telling you this without knowing more, but it's going too far to accuse you of fraud if you're not making intentional misrepresentations.

Having said that, I think your management is within their rights to make the decision as to whether or not these services should be billed. If the provider is using an assistant in cases where it is not medically necessary and it is done solely for convenience, they may feel it is not appropriate to bill for that. Or they may not wish to take the chance that something will get paid that shouldn't have been and expose them to liability or trigger an audit. And more likely than not, they probably do not want a provider to get RVUs for something that they know is not going to bring in revenue. Most practices I've worked with will set up their internal processes to determine how things like this should be handled, so I think it's appropriate to follow their instructions if they're asking you not to bill this.
 

maryir

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Thank you very much for your reply and I agree with your speculations as to why's of managements focus.

The one issue I have is: I want to be able to present to them the actual Medicare documentation substantiating the "correctness" of my actions. I have acknowledged (and will) process services as they've directed but I would like to have validation my approach is an appropriate and legal process.

Within CMS I could only find the False Claims Act definition (below). Where would I be able to obtain something more specific?

This is what I presented:
The charging of a surgical assist, when it is properly documented, and which CMS states is not eligible for reimbursement, is not considered false claims. It is not acting “in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim”. Submission of a claim for services appropriately rendered, documented, and coded does not constitute false or fraudulent. When submitting the surgical assist to Medicare for an assist that is not covered by Medicare, you’ll get a rejection. Nothing more.

Directly from CMS -

Federal False Claims Act (FCA)
The FCA protects the Federal Government from being overcharged or sold substandard goods or services. The FCA imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal Government. The terms “knowing” and “knowingly” mean a person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim. No proof of specific intent to defraud is required to violate the civil FCA.
 

thomas7331

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There is no specific guidance from CMS that I know of to instruct that you should not bill for something just because you know Medicare will deny it. It happens all the time actually - providers often recommend and perform services that Medicare does not consider necessary or covered. Now, if you tried to hold the patient responsible for this charge, or otherwise obtained or attempted to get payment for something that you should not have, that's a different matter but it doesn't sound like that's the case here.

I agree with you - you are not submitting a false or fraudulent claim as long as your coding accurately reflects what was documented by the provider. In fact, it could even be argued that intentionally omitting codes for something that was actually documented as performed is more a questionable practice than what you are doing. The Medicare determination that a procedure is not payable for an assistant is based on the fact that an assistant is used in "fewer than five percent of the cases for that procedure nationally" which acknowledges that in some instances an assistant is in involved in some cases. So if the provider has a legitimate reason for using an assistant, I would think it perfectly reasonable to bill this so that Medicare has an accurate reporting of what is happening even if they are not allowing payment.
 

suemt

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My comment on this, unless I'm reading it wrong, is that you are not purporting to want to do this for purposes of compliant coding and billing, but rather to give a provider internal RVU credit - presumably towards annual compensation/revenue goals. If that is the case, as previously stated, the organization that makes the RVU rules would prevail.
 
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