The words you use as part of your internal educational processes and in your communications with RACs, MACs and other entities can have widespread impact. This article will explore how word selection can help or hurt you.
Most organizations have a mechanism they use to examine claims and analyze coding and documentation. Though it is easy to refer to these reviews as “audits,” this is almost always inaccurate terminology. The reviews do not have statistically valid samples, and they are not designed to be scientific. In fact, chart selection often is skewed toward charts that are likely to be problematic. This is more than an issue of semantics: when an “audit” detects an overpayment, you may have a legal obligation to project the amount of money owed using statistical calculation. If you refer to a “review” as an “audit,” a payer erroneously may conclude that the review is more scientific than it actually was. It is better to refer to internal examination as a “review” and to use “audit” to refer to actions taken by outside organizations.
When an internal review determines that a chart failed to adhere to documentation guidelines, the chart often is referred to as “overcoded.” If the documentation indicates that a higher code may have been appropriate, most use the term “undercoded.” But these terms are generally not an accurate description of what you know; they only describe what you suspect. Most reviews only compare documentation to the codes billed. It is quite possible that services were performed yet undocumented. As described in an article appearing on RACmonitor last month, in most cases missing documentation does not mean that a claim is coded incorrectly (if the services were performed as billed, that is). It is also possible that the documentation includes services that were never performed. This latter risk has increased greatly in the era of electronic records. As prior notes are “carried forward” and/or templates are used, it has become increasingly common to find detailed documentation of a service that never was rendered. (I am willing to bet almost anything that the chart I once saw documenting a prostate exam of a female patient was incorrect.) In short, a review of documentation tells you only what was documented. To know whether a claim was overcoded or undercoded, you generally must know what actually occurred.
Rather than calling charts “overcoded,” “undercoded” or “correctly coded,” all of which imply a conclusion for which not enough data has been developed, refer to the documentation as “failing to support the code billed,” “supporting the code billed” or “supporting a higher code than was billed.” These phrases are far more accurate.
Because poor documentation is a source of concern, it is easy to label it as “fraud.” In fact, a desire to get the attention of management, practitioners and others can create an incentive to use incendiary language. However, legal labels like “fraud” and “abuse” easily can come back to bite providers. There is rarely any benefit to using either term as part of an educational process.
During communication with the government and its contractors is another time when language is important. Imagine that an internal review concludes that there have been billings you regret submitting, or billings you would have preferred to code differently. There are many options for wording a letter, and some of these options are clearly better than others.
First, I recommend avoiding characterizing any situation as an “overpayment.” Use the term “refund.” Rather than starting a letter by stating that “we have been overpaid,” indicate that you are “choosing to refund” the money.
It can be challenging to determine what language to use to describe a coding issue. How do you acknowledge a documentation problem without calling the claim “overcoded”? I recommend stating that “we feel more comfortable” or “we believe the claim could better have been coded as.” The phrase “more appropriate” can be very useful. For example, if you are recoding an inpatient admission as an outpatient encounter, you can state that “this service was billed as an admission. Upon review, we believe that it may be more appropriate to code it as an outpatient service.” This wording should not be considered an “admission.” As a result, if the government ever attempts to accuse you of fraud or of submitting false claims, you still will have the ability to argue that the inpatient code was correct.
When you write a letter to a contractor, there can be a strong temptation to state that the “problem has been corrected.” But experience suggests that despite the best of intentions, many billing problems repeat themselves. So rather than making a promise that may be broken inadvertently, describe the actions that have been taken, such as “we held an educational session on (a certain matter) to notify staff of the situation. This approach allows you to demonstrate good faith without making promises.
Another phrase you may be tempted to use is “our lawyer told us.” There are times when this may be appropriate, but note that whenever you repeat advice you received from legal counsel, you run the risk that you may be waiving the attorney-client privilege. This means that the government would have the ability to review all topical communication between the organization and counsel. In other words, repeat legal advice only after carefully considering the risks of doing so and discussing it with your legal counsel.
Finally, here are two samples of short refund letters. Hopefully this article helps explain why the second is so much more appropriate:
An internal audit determined that one of our physicians was fraudulently overcoding her services. After consulting with our lawyer, we determined that we had been overpaid $60,000. We have corrected the problem. Enclosed please find a check.
Our internal compliance process identified some claims for which documentation was insufficient. We would be more comfortable if the services were billed at a lower level of service. Therefore, we are choosing to refund $60,000. We have provided the physician with education about the relevant documentation guidelines.
Hopefully this article helps explain why the second is so much better. The bottom line is that in the highly regulated healthcare world, careful attention to word choice can lower the risk that your internal actions are used against you.
About the Author
David Glaser is a shareholder in Fredrikson & Byron’s Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.
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