How Language Ambiguity Could Lead to False Claims Act Violations

Because so many investigations are trigged by situations where people think a violation of company policy is a violation of the law, I want to discuss how to approach a situation wherein an internal standard establishes a higher bar than a legal requirement.  

A possible example could be “shared visits.”

Under Medicare policy, it’s permissible for a physician to bill for a service when the physician provides the medical decision-making.  The shared visit regulation permits a physician to bill when they perform the substantive portion of the visit, and the medical decision-making can constitute the substantive portion.  

In the manuals, the Centers for Medicare & Medicaid Services (CMS) explicitly acknowledges that only one of the two medical professionals must see the patient.  That guidance is logical given that you don’t need a face-to-face visit to perform medical decision making. 

But what if an organization has decided they don’t want patients to get a bill from a physician unless they’ve seen the physician. (I want to be crystal clear that I am not RECOMMENDING this policy. 

I’m just acknowledging that some organizations may choose to adopt a policy that prohibits a practice Medicare would permit!)  

How should they memorialize it?

I would recommend a policy that says something like this: “while Medicare permits an organization to bill under a physician when that physician performs the medical decision-making during a shared visit, Glaser Healthcare has chosen to adopt a policy of billing services under a physician’s name only when the physician actually sees the patient.”

There are other ways you could word the expectation, but I think it’s wise to explicitly describe the law and detail how the organization’s expectations differ from legal requirements. 

The second best alternative, which would be a distant second, would be to say something like “Glaser Healthcare requires the physician to see the patient in order for the physician to submit a claim.”  That sentence indicates that it is an expectation of the system without any overt reference to the law.

This approach is inferior because many people might mistakenly assume that the organization is establishing the requirement because of a regulatory issue, but at least the sentence is clear that the requirement is being imposed by the system, and nothing explicitly indicates a governmental obligation. 

I strong prefer the first option for its clarity about the variation from Medicare policy, but at least the second option is technically accurate.

But there are two ways in which policies can be much worse than those examples.  First, sometimes organizations, fearful that employees will disregard an instruction unless it is supported by law, mistakenly claim that law requires the policy.  I have seen many policies with phrases like “Medicare requires” or “CMS instructs” that proceed to detail terms not addressed in any governmental document.  Here, the organization is false trumpeting the law to steer behavior.

A more common problem is that policies are often written in the passive voice.  A passive framing could be something like “physicians are required to see the patient in order to bill.”  Required by whom?  The sentence doesn’t say.

The absence of a subject will cause many people to assume that the requirement comes from the government.  There’s a reason our high school English teachers tried to stomp out the passive voice.   It fosters ambiguity.  The passive sentence can easily be misconstrued as suggesting there’s a legal requirement to see the patient.  Confusion like this can result in complaints to the government and false claims act cases arising from a false belief the policy indicates the existence of a regulatory obligation.   It is totally permissible for organizations to expect their employees to do more than the law requires.  But when they do so, it should be communicated candidly and directly, with full acknowledgement of the heightened standard.