The practices of upcoding and unbundling are unfortunately common methods of healthcare fraud. The following are some frequently asked questions about how to identify upcoding and unbundling, and how to become a healthcare fraud whistleblower if you spot them.
The billing codes that healthcare professionals use to bill Medicare or Medicaid for patients correspond to specific procedures and diagnoses. The government uses these codes to determine the amount of money to reimburse the healthcare clinic or professional. When a healthcare provider bills for a more serious or expensive procedure or medical diagnosis than what was actually performed or diagnosed it is referred to as upcoding. Doing so increases medical expenses for the government without any benefit to the patient.
Unbundling, sometimes called fragmentation, refers to the practice of illegally billing procedures that are bundled together separately. Because Medicaid and Medicare bundles procedures that are commonly performed at the same time, separating these bundled procedures and billing for them separately results in illegally increased profits for providers.
Medical billing fraud and abuse can take years to detect. The first line of defense against healthcare providers who illegally bill government health care programs are the people who work there and notice it taking place. If you have proof of healthcare billing fraud and your qui tam lawsuit is successful, you may be awarded a percentage of the defrauded funds that are recovered.
Here are some common examples of medical billing fraud:
Examples of upcoding
The Office of the Inspector General investigates fraud and abuse involving improper use of Medicare and Medicaid billing codes. Examples of upcoding in healthcare include improper usage of CPT codes, including Evaluation and Management (E&M) codes, as identified by the OIG. Some instances of upcoding may look like:
Examples of unbundling
Physicians may attempt to charge patients additional fees, or double charge Medicare, Medicaid, as well as private insurers for services rendered. All of these are examples of healthcare fraud. However, unbundling may be even more difficult to spot, as it involves submission of separate CPT codes and E&M codes behind the scenes.
CMS identifies some practices are being by definition “mutually exclusive,” meaning that they can never be paid out separately. Other codes may be submitted separately, but should be done together when services are provided at the same time, to the same patient, by the same provider. Unbundling is when these grouped claims are instead submitted as more expensive separate codes. Unbundling examples include:
Besides being illegal, upcoding and unbundling codes are unethical for several reasons. When healthcare payers like Medicaid and Medicare experience increasing costs due to healthcare professionals illegally upcoding and unbundling billing codes, this increase is reflected back on to citizens in the form of increased taxes, higher healthcare costs, or a lower standard of care.
Many patients do not understand billing codes, so it can be difficult to spot healthcare billing fraud like upcoding and unbundling from the outside. Employees of healthcare providers with proof of healthcare fraud who come forward as qui tam relators and assist the government in recovering defrauded funds are one of the most important ways to stop healthcare fraud.
Upcoding and unbundling are not victimless crimes. There are consequences for both the healthcare providers who engage in this kind of financial fraud, as well as for their patients who are subjected to it. Some potential consequences of upcoding and unbundling include:
If you have proof of medical billing fraud, you may be qualified to file a lawsuit against the healthcare provider. If your actions as a whistleblower lead to the government being able to recoup defrauded funds, you may be entitled to a percentage of the total amount that is recovered.
If you have new, previously unreported information that can help shed light on healthcare fraud, you may be able to become a whistleblower. If you become aware of upcoding and unbundling, your first step should be to report this information to a whistleblower attorney. Whistleblower protections do not apply to those who do not come forward to report their suspicions. If your employer retaliates against you because of suspicions that you will speak up, you may not be protected if you have not already shared what you know. A consultation with a whistleblower attorney is confidential and complimentary.
In Fiscal Year 2022, whistleblowers filed 652 qui tam lawsuits, and helped recover over $1.9 billion in claims. The Department of Justice Office of Public Affairs reports that healthcare fraud is a leading source of False Claims Act settlements and judgements:
Reporting medical billing fraud can be intimidating, but having the right healthcare fraud attorney on your side can take pressure off of you as you navigate the qui tam legal process. Additionally, an experienced qui tam law firm like Tycko & Zavareei LLP can help maximize your chance of the lawsuit being successful. When hiring a healthcare fraud lawyer, consider the following:
1. Proven success and positive testimonials
A qualified whistleblower law firm will have a proven track record of success representing whistleblowers in cases where the government successfully recovers defrauded funds. At Tycko & Zavareei LLP, our attorneys have worked on many cases that have resulted in multimillion-dollar settlements, including a pharmaceutical kickback case that settled for $350 million and a Medicare fraud case that settled for $7.5 million.
2. Extensive experience with qui tam medical fraud
Our qui tam healthcare fraud attorneys have experience handling a vast number of healthcare fraud cases involving government-funded programs, including Medicaid, Medicare, Veterans benefits programs, and TRICARE. Our qui tam lawyers have represented healthcare fraud whistleblowers across the country who have assisted the government in recovering billions of defrauded taxpayer dollars.
3. Ability to protect your interests
With Tycko & Zavareei LLP, you will be protected from retaliation to the fullest extent of the law. Whistleblower claims are kept sealed until the government intervenes or the whistleblower pursues the case on their own and the defendant is served. Cases are often sealed for a full year before a decision is made, preserving your anonymity. If the whistleblower complaint is served and the defendant seeks to retaliate against you for being a whistleblower, the qui tam lawyers of Tycko & Zavareei LLP can help you understand and pursue your options for legal recourse.
Upcoding is illegal because it is a method of submitting false claims to the government for reimbursement. Upcoding results in higher payouts being made without increased services being rendered. It drains down taxpayer funds, and makes the cost of healthcare expensive for everyone involved. Upcoding can also damage patient health by making patients believe they face more serious conditions than they actually do, or providing patients with substandard care.
Healthcare involves additional responsibility to keep patients safe. For this reason, healthcare professionals receive some of the strongest possible protections when they report waste, fraud, or abuse. The Healthcare Whistleblower Protection Act protects healthcare professionals who have a “reasonable belief that wrongdoing has occurred” and disclose it. The definition of wrongdoing, as well as protected disclosure, varies slightly based on your employment in the field of healthcare. However, the following are considered protected disclosures for HHS civilian employees:
Additionally, contractors, grantees, and U.S. Public Health Service Commissioned Corps Officers are protected by certain areas of the Healthcare Whistleblower Protection Act. The increased whistleblower protections of the Healthcare Whistleblower Act are to prohibit employees from being fired, transferred, demoted, or otherwise retaliated against if they act in good faith to report wrongdoing. Legal action including reinstatement is possible if you have been discriminated against as a healthcare whistleblower.
Yes. Upcoding can result in both fraud and abuse of the financial system. When patients receive inaccurate diagnoses or even harmful care that is billed as being of the proper quality, it is also abuse of vulnerable patients.
If you have information about medical billing fraud, speak to a healthcare attorney as soon as possible. Doing so can give you whistleblower protections, as well as qualify you for a reward. Once information has already been reported, however, it becomes ineligible for submission. Be the first to speak up, and protect yourself while protecting patients and taxpayer funds.
The law offices of Tycko & Zavareei LLP take cases on a contingency basis, meaning that you will not pay for our services up front. Instead, we negotiate a percentage of the final settlement amount. This makes our services more accessible to those who cannot afford a medical billing fraud attorney at the start of their whistleblower claim.
Upcoding and unbundling are considered to be a violation of the False Claims Act, as inaccurate information is being reported to the government in exchange for funds. The False Claims Act creates liability for any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval or knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim” to the federal government. Because Medicare and Medicaid are federally funded programs, false submissions of healthcare claims induce False Claims Act liability.
A qui tam relator is the plaintiff in a fraud case involving the government. Under qui tam law, a relator may bring a case on behalf of the government, and is eligible for a percentage of the total amount recovered if the claim is successful. A qui tam relator is also known as a whistleblower.
When reporting civil violations of the law, there is a statute of limitations to be considered. After this time period has passed, it becomes more difficult (although not always impossible) to bring a qui tam case. Under the False Claims Act, violations pass the statute of limitations six years after they occur, or three years after the government knew or should have known about the violation, but not longer than ten years after the act of fraud.
Additionally, you may not be able to qualify as a healthcare fraud whistleblower if someone else has already reported your information to the Department of Justice or Office of the Inspector General. However, even if an existing case has already been opened for the matter you are blowing the whistle on, you may still be eligible for a reward if you contribute new and useful information that aids in the eventual recovery.
By filing your claim through a whistleblower law firm, you will not be directly named in the case when it is filed and investigated by the government. Instead, the law firm will be on record as the plaintiff, with your disclosure remaining anonymous. Our attorneys can protect your identity for as long as it is possible.
Retaliation against a protected whistleblower is illegal. An employer who discriminates in any way against a whistleblower because of their honesty can be sued for double back pay, damages, legal fees, and more. If you believe you have been retaliated against because of speaking up about fraud, contact a whistleblower lawyer to see how we can help.
If you have proof of healthcare billing fraud, you may be entitled to a financial reward. Coming forward can help protect patients who have entrusted their care to your medical practice. It also can help recover misappropriated taxpayer funds, lower healthcare costs for all Americans, and weed out fraudulent practices in our healthcare system.
If you spot upcoding and unbundling, do the right thing and speak up. A consultation with our healthcare fraud attorneys is complimentary and confidential. Contact the medical billing fraud whistleblower lawyers of Tycko & Zavareei LLP today for a free legal consultation.