Is it fraud or abuse?

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When discussing fraud and abuse, it often (very often) becomes a philosophical discussion of whether aberrant activities are fraudulent or abusive. The quick difference being that fraudulent is intentional and abuse is not.  The distinction quickly becomes an issue of legal and illegal as opposed to right and wrong.

What appears to be true in standard insurance (P&C and life) and banking is that any inappropriate or aberrant activity is assumed to be intentional and there is little shelter for the perpetrator from investigation.  However, that is where health care strays from the course because of the status and authority wielded by doctors (and various medical associations, such as the AMA). The waters quickly become very murky.  Now that is not to say there is not some justification and appropriateness to this situation, for indeed to tell a doctor that their behavior or practices are wrong is a very slippery slope.  For who defines the measure for "quality of care?" Is it the doctor who has direct contact with the patient, and therefore has the best perspective on the patient’s needs?  Of course that then assumes that all doctors are of the highest moral character and that they would never do anything opportunistic (clearly a fallacy). 

The health care community (in general, not a 100%) has come to accept that from a legal perspective, slight deviations are counted as accidental, whether they are or not.
A simple example: If a doctor seess a patient for 15 minutes and bills for 30 minutes (up-coding) that is usually considered abusive. However, in the banking or insurance industry, it would certainly not be.  Many people find the acceptance of this unacceptable or inappropriate, yet doctors maintain a position of respect (that is well earned) and should every medical procedure be open to question?  Cleary there is no simple answer to the question at hand, and the common resolution today is to warn the doctors and hope they stop, or wait for something extremely inappropriate to occur. (Clearly a great deal of money may be spent waiting.) But should doctors be limited in the services they provide based on their professional opinions, or should they be given carte blanche to do and bill as they please?  And what do we call it when they stray outside the lines: fraud or abuse?

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About Author

Ross Kaplan

Principal Solutions Architect

Ross Kaplan serves as the Principal Global Solutions Architect for Health Care in the SAS Security Intelligence global practice. He supports health care cost containment (Payment Integrity) initiatives across the Health & Life Sciences, State and Local Government, and Federal Government verticals. He has been active across North America, Europe, Middle East, Asia Pacific and South Africa. Providing industry expertise and vision at conferences and directly to customers, Ross has been at SAS for over eight years Ross is a 16 year veteran in the health insurance industry, focusing on analytics in health and condition management, member retention, and provider profiling prior to specializing in health care. He has assisted health plans, federal and State and local government agencies in defining their requirements and providing guidance in their solution advancement. Ross is also trained and experience in Healthcare privacy laws. Prior to SAS, Ross served as a solutions architect at Computer Associates and Siebel Systems, working with the Fortune 1000. He has supported other industries such as Insurance, Banking, and Pharmaceutical. However, his primary focus has always been in health care, receiving training in HIPAA and having direct input in Siebel’s health care product development. Ross has been featured speaker at many industry events focused on health care cost containment and payment integrity, most recently on the topic of social network analysis and link analysis, predictive analytics, and fraud/waste and abuse in the European market. Ross earned a bachelor's degree in Business Administration, with a concentration in Computer Information Systems (CIS) from San Francisco State University and his Master’s Degree in Statistics as well as an MBA with a concentration in Systems Analysis. Sales Training: • Consultative Selling • The Customer Delight Principal • Major Account Sales Strategy

1 Comment

  1. This is an interesting issue. I am a health care attorney and have sat on both sides of the fence: at times, representing medical practices accused of fraudulent insurance billing practices and, at other times, representing insurance companies. In recent years, we have seen certain sectors of the insurance industry (primarily P&C) increasingly use issues such as time or procedure upcoding as the basis for very serious allegations of fraud of racketeering against providers. The dichotomous views that each side has on such conduct (at least where up-coding has actually occurred) have long presented significant challenges to resolving such disputes. Getting everyone involved on the same page on this issue would be to everyone's benefit by reducing costly and disruptive litigation.

    In my opinion, the issue of whether inappropriate conduct should be labeled as fraud or abuse should ultimately come down to the intent of the actor. If a practice knowingly up-codes with the intent of generating a higher insurance reimbursement than it has earned, that is clearly fraud. When such conduct is accidental or not done with the intent of getting some benefit that has not been earned, I do not believe that is fraud. However, all things being equal, regardless of whether the provider intended to up-code or did it accidentally, the benefit was not earned and the practice should only be reimbursed for the services that it actually provided.

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