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Stay vigilant about schemes and submissions of false claims.
As the COVID-19 landscape becomes more familiar, patients, practitioners, and insurance companies should be vigilant about schemes and the submission of false claims for payment. Two areas in particular which come to mind are offering free COVID-19 antibody testing and coding. The scheme is, a patient contacts his/her doctor thinking they may have COVID-19. The patient wants a COVID-19 test. The doctor tests them for COVID-19, but adds on the COVID-19 antibody test and various allergy tests. Instead of charging $100-$150 test, the physician bills around $500 for this test bundle. What are the implications for the physician’s actions?
First, the offering of free goods or services in exchange for the referral of patients or increased utilization should always be checked for compliance with the Federal Anti-Kickback Statute, Stark Law, and related state laws, such as the California Insurance Fraud Prevention Act. Despite the Centers for Medicare and Medicaid Services (CMS) issuing several “1135 Waivers” during the COVID-19 pandemic, which impact the AKS and Stark Law, “[p]roviders must meet specific requirements to take advantage of the waivers.”
For example, the U.S. Department of Health and Human Services, Office of the Inspector General (HHS-OIG) issued responses to various questions, with the caveat that the facts and circumstances may change the response and the liability. One question (and the answer) is particularly relevant to this article.
Neither code CPT U0003 nor CPT U0004 is permissible for tests detecting COVID-19 antibodies. “It is noted that U003 should identify tests that would otherwise be identified by CPT code 87635 but for being performed with these high throughput technologies.”
To answer the initial question regarding the implications for the physician - bundling these various tests in order to maximize reimbursement and add on unnecessary tests (e.g., allergy tests) that are not related to COVID-19 could be considered upcoding by providers and result in civil and/or criminal penalties under the False Claims Act or a similar state statute, such as the California IFPA.
Rachel V. Rose, JD, MBA, advises clients on compliance and transactions in healthcare, cybersecurity, corporate and securities law, while representing plaintiffs in False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.
M. Anderson Berry is an experienced civil litigator, recently employed by the U.S. Attorney's Office in the Eastern District of California. As an Assistant United States Attorney in the Affirmative Civil Enforcement Unit, Mr. Berry handled a wide variety of False Claims Act cases and other civil claims, recovering millions of dollars for the U.S. Government.