Issues in Ethics: Misrepresentation of Services for Insurance Reimbursement, Funding, or Private Payment

• About This Document
• Issues in Ethics Statements: Definition
• Introduction
• Definition of Fraud and Abuse
• Commentary Regarding the Reimbursement Environment
  
• Conclusion

About This Document

Published 2018. This Issues in Ethics statement is a revision of Representation of Services for Insurance Reimbursement, Funding, or Private Payment (originally published in 2006 and revised in 2010). It has been updated to make any references to the Code of Ethics consistent with the Code of Ethics (2016). The Board of Ethics reviews Issues in Ethics statements periodically to ensure that they meet the needs of the professions and are consistent with ASHA policies.

Issues in Ethics Statements: Definition

From time to time, the Board of Ethics (hereinafter, the "Board") determines that members and certificate holders can benefit from additional analysis and instruction concerning a specific issue of ethical conduct. Issues in Ethics statements are intended to heighten sensitivity and increase awareness. They are illustrative of the Code of Ethics (2016) (hereinafter, the "Code") and are intended to promote thoughtful consideration of ethical issues. They may assist members and certificate holders in engaging in self-guided ethical decision making. These statements do not absolutely prohibit or require specified activity. The facts and circumstances surrounding a matter of concern will determine whether the activity is ethical.

Introduction

This Issues in Ethics statement is furnished by the Board to provide guidance to audiologists and speech-language pathologists (SLPs) concerning representations made to obtain insurance reimbursement or funding. The purpose of this statement is to focus attention on the ethical impropriety of engaging in any of the following activities for the purpose of obtaining reimbursement or funding, where doing so may result in an ethics challenge or charge. This document is inclusive of services provided as outlined in ASHA's scope of practice documents for audiology and speech-language pathology.

These specific Code Principles and Rules may especially apply to reimbursement: 

• Principle I, Rule J: Individuals shall accurately represent the intended purpose of a service, product, or research endeavor and shall abide by established guidelines for clinical practice and the responsible conduct of research.
• Principle I, Rule Q: Individuals shall maintain timely records and accurately record and bill for services provided and products dispensed and shall not misrepresent services provided, products dispensed, or research and scholarly activities conducted.
• Principle III, Rule C: Individuals shall not misrepresent research and scholarly activities, diagnostic information, services provided, results of services provided, products dispensed, or the effects of products dispensed.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.
• Principle IV, Rule E: Individuals shall not engage in dishonesty, negligence, fraud, deceit, or misrepresentation.

Definition of Fraud and Abuse

ASHA's Code aspires to place the profession well above legal standards. The Code’s Terminology section defines fraud as “any act, expression, omission, or concealment—the intent of which is either actual or constructive—calculated to deceive others to their disadvantage.” Fraud occurs when a provider intentionally attempts to defraud the government or an insurer by committing a crime such as billing for services that were never provided or by falsifying records or claims that may inflate the cost to the government or insurer.

The Office of the Inspector General in the U.S. Department of Health and Human Services (HHS) is responsible for fighting fraud and abuse of Medicare, Medicaid, and other HHS programs. Healthcare fraud prevention and enforcement also occurs through the False Claims Act (FCA) [PDF], 31 U.S.C. § 3729, the Stark Law, and the Anti-Kickback Statute (AKS). (These three laws were strengthened and expanded under the Affordable Care Act such that liability under FCA is allowable for violations of the Stark Law and the AKS.)

Abuse, on the other hand, reflects a professional tendency of deception that may lead to actual fraud. Abuse may best be illustrated by examples such as those provided by Centers for Medicare & Medicaid Services (CMS):

• Billing for unnecessary medical services
• Charging excessively for services or supplies
• Misusing codes on a claim, such as upcoding or unbundling codes

For example, a provider may make a mistake on coding and documenting a given activity and, once apprised by either an external or internal audit, proceeds to perform the same mistake again and again, resulting in financial gain. Obviously the professions must guard against fraud and abuse and encourage professionals to report conduct that is illegal or fraudulent.

Misrepresenting Information to Obtain Reimbursement or Funding

Accurate documentation of services provided is essential and is the responsibility of the professional who is providing the clinical services, regardless of the manner in which bills are submitted for reimbursement.

• For example, professionals who provide contract services through an agency must keep detailed records of the patients seen, including times, dates, and duration of appointments, as well as the specific services provided, including any supervision of students or support personnel.
• Furthermore, professionals providing appropriate treatment must avoid misrepresenting information about the nature of the treatment, even if they believe that they “have the patient's best interests in mind.” For example, in a previously adjudicated complaint before the Board, it was found that an SLP may not ethically represent a child with a “functional articulation disorder” (for which costs are generally not reimbursed) as having “apraxia of speech” (for which costs are generally reimbursed) in order to obtain insurance coverage for treatments. The fact that the child's family may not otherwise be able to pay for the treatment, and that the professional believes that the service should be covered, does not ethically excuse the misrepresentation.
• Professionals should use the most specific Current Procedure Terminology (CPT ®) code for treatment provided.
• A professional may not ethically select a code for a patient for the sole purpose of obtaining reimbursement. Assign only codes that accurately describe the procedure and that documentation supports. For example, in a previously adjudicated complaint before the Board, it was found that an SLP could not separate the services into multiple CPT codes to increase the amount billed. So, when assigning a CPT code for electrical stimulation (e-stim) with swallowing patients, an SLP should not select the CPT code for e-stim because it should be billed as one component of traditional swallowing therapy using the standard swallowing therapy CPT code.
• An audiologist may not ethically select a code indicating abnormal auditory perception when pure-tone and word recognition testing reveal normal hearing despite patient complaints of having difficulty hearing.
• Similarly, to obtain insurance coverage not otherwise available, a professional may not ethically report the name of the patient's physician as a referral source (generally required for reimbursement), when the physician did not refer the patient.

The previous scenarios may result in violation of these specific Code Principles and Rules:

• Principle I, Rule Q: Individuals shall maintain timely records and accurately record and bill for services provided and products dispensed and shall not misrepresent services provided, products dispensed, or research and scholarly activities conducted.
• Principle II, Rule D: Individuals shall enhance and refine their professional competence and expertise through engagement in lifelong learning applicable to their professional activities and skills.
• Principle III, Rule C: Individuals shall not misrepresent research and scholarly activities, diagnostic information, services provided, results of services provided, products dispensed, or the effects of products dispensed.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.
• Principle III, Rule E: Individuals' statements to the public shall provide accurate and complete information about the nature and management of communication disorders, about the professions, about professional services, about products for sale, and about research and scholarly activities.
• Principle III, Rule G: Individuals shall not knowingly make false financial or nonfinancial statements and shall complete all materials honestly and without omission.
• Principle IV, Rule E: Individuals shall not engage in dishonesty, negligence, fraud, deceit, or misrepresentation.

ASHA professionals should maintain current payment policies and updates from all payers. With a question regarding Medicare coverage, the Medicare Administrative Contractors (MACs) are the most reliable contacts because they may have local coverage determinations in audiology and speech-language pathology. Detailed coverage requirements, such as student supervision and documentation requirements, can also be found on the CMS website through manuals. For Medicaid coverage, ASHA professionals should contact the Medicaid agency in their state. Likewise, each specific private health plan should be contacted directly for questions regarding coverage guidelines. Most payers also have websites that can be located where contact information or medical coverage policies may exist. Members with reimbursement queries are encouraged to contact ASHA's Healthcare Economics and Advocacy Team at 800-498-2071 or via e-mail at reimbursement@asha.org.

Providing Service When There Is No Reasonable Expectation of Benefit for the Person Served

Audiologists and SLPs are compelled to consider the overall status of the persons served in making decisions about the nature of their evaluations and the provision of treatment. Professionals must not provide services when the prognosis is too poor to justify professional treatment. The provision of such services is an unethical exploitation of those served, regardless of whether services are undertaken for the purpose of obtaining reimbursement. Professionals may not rationalize that the absence of harm to the person served justifies payment or funding.

• For example, a professional who identifies specific persons in a nursing home as not likely to have significant communication benefit from speech or language therapy may not ethically provide therapy to those persons even if the services may be reimbursed by Medicare.
• In the realm of audiology, it is considered unethical for an audiologist to dispense hearing aids to a patient whose audiogram indicates that no reasonable benefits can be expected from amplification.
• Similarly, professionals may not exaggerate the extent of improvement in order to obtain or continue reimbursement. 
• Providing a patient with social support that does not require the expertise of an audiologist or SLP is not a justification for the billing of such activities as professional services.
• Professionals in schools, where funding is often based on caseload counts, may not, in order to maintain the level of funding, retain in treatment students who have exhibited no significant progress or for whom there is no reasonable expectation of progress.
• Supervisors in university clinics may not enroll patients in a fee-for-service clinic where there is no expectation of improvement or maintenance of skills strictly for the purpose of “training students.” It may be considered ethical to provide such care at no cost to the patient/client provided that the patient/client and a spouse, other family member, or a legally authorized/appointed representative are advised of the likely therapy outcome in advance of enrolling in treatment. An approach in which the patient/client is willing to serve as a peer counselor or coach for the purposes of educating students may be acceptable if all parties are informed of the nature of the clinical relationship and if fees are not charged.

The previous scenarios may result in violation of these specific Code Principles and Rules:

• Principle I, Rule K: Individuals who hold the Certificate of Clinical Competence shall evaluate the effectiveness of services provided, technology employed, and products dispensed, and they shall provide services or dispense products only when benefit can reasonably be expected.
• Principle I, Rule M: Individuals who hold the Certificate of Clinical Competence shall not provide clinical services solely by correspondence, but may provide services via telepractice consistent with professional standards and state and federal regulations.
• Principle III, Rule C: Individuals shall not misrepresent research and scholarly activities, diagnostic information, services provided, results of services provided, products dispensed, or the effects of products dispensed.

Scheduling Services More Frequently or for Longer Than Is Reasonably Necessary

The provision of speech-language, swallowing, or hearing services should be based on clinical need rather than the availability of funding from third-party payers.

• Although comprehensive evaluation of auditory and/or balance function may be important components of a diagnostic assessment, the selection of the procedures employed must be based on evidence regarding the contribution of each procedure rather than on whether services are covered by insurance.
• It is unethical to charge for or provide intensive speech-language and swallowing treatment merely because those additional services will be reimbursed when, in fact, fewer hours would achieve the same benefit for the patient.
• In the event that a patient may be achieving maximum benefit from treatment and yet the family wishes to pay for increased services out of pocket, it would be unethical to provide the additional services and accept the out-of-pocket reimbursement. Moreover, doing so likely could create unrealistic expectations for the therapy relationship. Further, it is inappropriate to accept remuneration in the form of a valuable gift for such services. (State licensure boards often have specific rules about accepting gifts under any circumstances, so the applicable state code of ethics or conduct should be consulted when a clinician is considering accepting a gift from a patient/client.)

The previous scenarios may result in a violation of these specific Code Principles and Rules:

• Principle I, Rule K: Individuals who hold the Certificate of Clinical Competence shall evaluate the effectiveness of services provided, technology employed, and products dispensed, and they shall provide services or dispense products only when benefit can reasonably be expected.
• Principle I, Rule N: Individuals who hold the Certificate of Clinical Competence shall not provide clinical services solely by correspondence, but may provide services via telepractice consistent with professional standards and state and federal regulations.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.

Requiring Staff to Provide More Hours of Care Than Necessary

For administrators, it is unethical to direct or require staff to provide more hours of care than is reasonable in a prospective payment environment such as acute rehabilitation, long-term care, or home care. One example of this would be requiring an evaluation and treatment plan for every patient who enters a skilled nursing facility on Medicare Part A.

The previous scenario may result in violation of these specific Code Principles and Rules:

• Principle I, Rule N: Individuals who hold the Certificate of Clinical Competence shall not provide clinical services solely by correspondence, but may provide services via telepractice consistent with professional standards and state and federal regulations.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.
• Principle IV, Rule E: Individuals shall not engage in dishonesty, negligence, fraud, deceit, or misrepresentation.

Supervision of Students or Other Service Providers in a Fee-for-Service Environment

The amount of direct supervision of students is influenced by several factors. Requirements for supervision of students are provided by the Council for Clinical Certification in Audiology and Speech-Language Pathology (CFCC) and are incorporated into standards for training program accreditation by the Council on Academic Accreditation in Audiology and Speech-Language Pathology (CAA). Students may never be considered to be an “extra” professional in a clinical setting, and supervisors must provide guidance and direct supervision at a level that is commensurate with the student's skills and in compliance with CFCC and CAA requirements.

Additionally, services provided by students may be addressed specifically in guidelines established by payers in the fee-for-service environment. For example, appropriately supervised students may provide services charged under Medicare Part A, but reimbursed services must be provided by the qualified professional who may be assisted by a student under Medicare Part B. Because payer guidelines, even those governed by a single entity such as CMS, may differ by setting or type of service, it is the ethical responsibility of the audiologist or SLP to abide by all applicable guidelines. Therefore, it is critically important when determining the level of supervision for a student that the supervising clinician take into consideration ASHA guidelines, state law requirements, and the conditions of coverage of the payer.

The previous scenarios may result in violation of these specific Code Principles and Rules:

• Principle I, Rule Q: Individuals shall maintain timely records and accurately record and bill for services provided and products dispensed and shall not misrepresent services provided, products dispensed, or research and scholarly activities conducted.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.

It is important to stress the need for keeping abreast of all payment policies, rules, and regulations. History has shown that such payment policies change and thus may put the provider at risk.

Providing Professional Courtesies or Complimentary Care for Referrals or Otherwise Discounting Care Not Based on Documented Need

In a very competitive marketplace, professionals may be induced to discount rates to persons served who are referred by a given physician who makes a large number of referrals.

• Physicians may not be induced to refer patients either through gifts or gratuities or by discounting services to families or friends.
• Sliding fee scales may be used when the person served meets specific guidelines that are similarly available for all qualifying individuals within a practice. Fee alterations may not be provided based on favored referral sources or personal relationships.

The previous scenarios may result in violation of these specific Code Principles and Rules:

• Principle I, Rule Q: Individuals shall maintain timely records and accurately record and bill for services provided and products dispensed and shall not misrepresent services provided, products dispensed, or research and scholarly activities conducted.
• Principle III, Rule D: Individuals shall not defraud through intent, ignorance, or negligence or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants and contracts for services provided, research conducted, or products dispensed.
• Principle IV, Rule E: Individuals shall not engage in dishonesty, negligence, fraud, deceit, or misrepresentation.

Commentary Regarding the Reimbursement Environment

The above examples, scenarios, and guidelines describe ethical dilemmas professionals may confront in a highly competitive environment in which (a) productivity and efficiency are considered primary professional criteria and (b) reimbursement regulations frequently change. Although the above sections cite the specific Principles and Rules in the Code that may be in question, the following observations are made in an attempt to assist professionals in “doing the right thing.”

• Ethical issues are the same regardless of payee, whether Medicare, Medicaid, managed care, fee-for-service, or self-pay.
• Audiology and speech-language services should not be limited to a clear restorative/functional outcome. Rationale and literature exist that support the practice of providing services not just for restorative care but also for prevention and maintenance. Services may not always be reimbursed in keeping with their actual value, but professionals are obliged to care for individuals when there is reasonable expectation that a given intervention may either (a) prevent deterioration in communication and/or swallowing or (b) maintain functional communication and/or swallowing.
• Regardless of whether restorative, preventative, or maintenance interventions are deemed necessary for a given patient/client, professionals are required to consider evidence-based practices and provide full and appropriate documentation.
• Even if a needed service is not currently covered in the reimbursement system, professionals are encouraged to provide these services and document the outcomes. These outcomes may be used to appeal denials of claims or to provide evidence of efficacy of treatments that may one day become reimbursed based on documentation from many providers. The reimbursement environment is a dynamic one. Audiologists and SLPs must be focused and professional in making ethical decisions in such a milieu.

Conclusion

The paramount rule for ensuring proper representations in connection with diagnosis and treatment is that professionals must follow their own best independent and evidence-based clinical judgment in formulating diagnoses, prognoses, and treatment plans. They must present information for reimbursement accurately, and that information must be consistent with the diagnoses and treatment plans. A practitioner must not alter a diagnosis or treatment plan solely to obtain, continue, or increase reimbursement or funding. This ethical prohibition is not affected by the motivation of the provider, regardless of whether the representation is made for the benefit of the person served, the provider, or the provider's employer. Professionals may not ethically justify such conduct as being in the best interest of the patient. Misrepresenting information, providing treatment with little expectation of communication or swallowing benefit, and providing treatment in excess of that which is professionally required are unethical actions. This is true for practitioners in all employment settings.

Information must be presented accurately and honestly to the person served, the person's family, third-party payers, and funding sources. It should be noted that if patients—or a spouse, other family member, or legally authorized/appointed representative—wish to receive necessary services that are also services whose costs are not reimbursed by insurance carriers, they should be advised that they themselves are responsible for the costs of the services. The complex reimbursement environment, reflected in frequent change of regulations or policies, create a particular challenge to the professional intending to do "what is right"; therefore, professionals are obligated to stay current with reimbursement policies.