Monday, December 09, 2013
Question: A dental plan is disputing some billings for my services, claiming I should have used a different code providing a lower fee. The dental plan is threatening to make a report to the National Practitioner Data Bank (the “Data Bank”) if I do not agree to refund all I was paid for these services. Can it do this when the dispute involves only my code selection? In my opinion more than one code arguably applies to these services and it is far from clear. No complaint has been made regarding the quality or appropriateness of the services I provided. The dental plan is also claiming that I committed fraud. If anything, choosing the incorrect code was an honest mistake or a misunderstanding of the nomenclature. Have I committed fraud by misunderstanding which code I am supposed to use?
Answer: The dental plan should not make a report to the Data Bank. First, adverse actions taken by a dental plan based only on the economics of your billing practices are not reportable because they do not involve your professional competence or conduct (i.e., the quality or appropriateness of your services). The purpose of the Data Bank is to act as a clearinghouse to collect and release reported information about the professional conduct of health care professionals. Reports regarding the billing practices/disputes are not relevant to this purpose.
Second, the Data Bank is not open to reporting by anyone desiring to file a report. Instead, reports should be made only by those required by the statute creating the Data Bank to report (which includes only those paying to resolve malpractice claims, a board of medical examiners, licensing boards, professional societies and a “health care entity”). The dental plan is not acting as a “health care entity” (the only possible type of entity required to report) because its report would not be the result of a regularly conducted peer review activity concerning the quality and/or appropriateness of your services.
Clearly, the dental plan should not make or attempt to make a Data Bank report as a result of this type of billing dispute. It would also not be proper for it to make threats to do so to gain some kind of leverage in negotiations to resolve its billing dispute with you.
The situation you describe is common and certainly does not sound like fraud. It is not always perfectly clear what code(s) should be used when submitting a bill. You may make a mistake and repeat it, not discovering that the dental plan disagrees with your coding until your records are audited and you receive a notice demanding a refund. Standing alone, misunderstanding and/or misinterpreting when a code should be used does not constitute fraud. In order for the dental plan to successfully establish fraud, it must prove that the wrong code was used and that you knew you were using the wrong code(s) deliberately to receive a higher fee than you were entitled to.
Fraud cases are extremely difficult to prove and typically involve egregious conduct like billing for procedures that were never performed. Only in those types of cases can it be proven that the dentist involved had the required knowledge that what he or she billed for was improper. The knowledge requirement is not met in the case that you describe, where the incorrect code is chosen when more than one arguably could be used.