April 14, 2023 | By David Glaser
It’s almost a staple at conferences attended by coders: you should have insurance! And be careful to make sure you aren’t going to jail! But while these scary speeches may be common, that doesn’t make them accurate. The reality is that it is very, very rare for a coder to face liability for their work. I know of only a few situations, and these stories should calm, rather than alarm you. A coder in California faced criminal consequences when participating in a scheme to water down chemotherapy drugs. And a coding consultant who charged on a contingency basis faced trouble for a scheme to systemically overcode charts. There, the key fact was that the coding consultant was directly profiting from the coding errors.
Those situations are very different from a situation where a coder working for a salary in an organization raises a question and after being assured by compliance, or counsel that the entity wishes for you to use the particular code. If anyone claims that coders have faced liability after following an instruction to submit a claim in such a situation, ask them to send the court papers. I’m willing to bet they won’t, because they can’t. If it later proves that the code is incorrect, that is certainly a risk that the organization will face overpayment liability, or worse, but the odds the coder will be involved are vanishingly low.
In fact, in most states, when a coder or any other employee is acting in good faith, reasonably believes that their conduct is legal, and reasonably believes they were acting in the interest of their employer the company must indemnify the employee, paying for the employees legal defense and even paying any fines or penalties. The bottom line is that if you follow a company directive to submit a claim, in most states the company will be required to cover any consequences you could face. In those states you effective have insurance; the resources of your employer.
So practically speaking, if you’re worried about the legality of a situation, what should you do? If you feel comfortable talking to your supervisor I’d start there. Share your concerns. If you don’t feel comfortable doing so, or you don’t believe they are taking you seriously, take advantage of your organization’s compliance process. Make a report. Don’t do it anonymously; send it in and keep a copy. If you’ve done that, the likelihood that you will face any personal liability is far lower than the risk associated with driving home.
Coding is hard. Coding accurately is harder. But if you dutifully express you concerns and are assured that the concerns are unfounded, you don’t need to worry that you will face personal exposure.
To be clear, I’m not saying that you should then stay silent. It’s totally reasonable to take your concerns to the company’s leadership or general counsel if you don’t believe that the compliance personnel are competent. You’ll be doing your employer a service if you make certain that the analysis is sound. But it is important to understand that you needn’t lose sleep fearing that your life will be ruined because of the company’s mistake.
Your next steps:
- Contact NAMAS to discuss your organization’s coding and documentation practices.
- Read more blog posts to stay updated on the 2023 Revisions to the 2021 E&M Guidelines.
- Subscribe to the NAMAS YouTube channel for more auditing and compliance tips!
NAMAS is a division of DoctorsManagement, LLC, a premier full-service medical consulting firm since 1956. With a team of experienced auditors and educators boasting a minimum of a CPC and CPMA certification and 10+ years of auditing-specific experience, NAMAS offers a vast range of auditing education, resources, training, and services. As the original creator of the now AAPC-affiliated CPMA credential, NAMAS instructors continue to be the go-to authorities in auditing. From DOJ and RAC auditors to CMS and Medicare Advantage Auditors to physician and hospital-based auditing professionals, our team has educated them all. We are proud to have helped so many grow and excel in the auditing and compliance field.
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