Challenging Healthcare Fraud Charges Due to Coding Errors

Coding errors in healthcare billing can lead to civil or criminal penalties under the False Claims Act (FCA). Even honest mistakes can trigger liability and prosecution by the Department of Justice (DOJ). So it’s crucial for healthcare providers to understand their rights and potential defenses when facing allegations of fraud.

The FCA prohibits “false or fraudulent” claims against federal healthcare programs like Medicare or Medicaid[2]. This includes reimbursement requests with billing or coding errors, whether intentional or not. The penalties can be severe – fines, damage multipliers, exclusion from federal programs, even criminal charges.

Intentional vs Unintentional Errors

Prosecutors can pursue civil or criminal charges for coding errors:

• Civil FCA violations don’t require intent – even honest mistakes can lead to penalties.
• Criminal charges typically need evidence of intent. This may be inferred from repeated errors, intentional upcoding, or lack of compliance efforts.

So while unintentional errors can still cause civil liability, criminal prosecution usually requires some evidence of purposeful or willful misconduct.

Common Defenses Against Coding Error Allegations

If you receive notice of an audit or investigation based on coding issues, contact an attorney immediately. An experienced legal team can help evaluate potential defenses, including:

1. Lack of Intent for Criminal Charges

As discussed above, criminal FCA violations require evidence of intent. If errors were honest mistakes, it becomes much harder to prove intent. Your legal team can argue reasonable explanations for the errors and fight any criminal charges.

2. Statute of Limitations

Violations older than 6 years (for civil) or 5 years (for criminal) may be barred by the FCA’s statute of limitations[4]. Your attorney can review dates of alleged errors to see if any fall outside those windows.

3. Improper Extrapolation

Auditors often use sampling and extrapolation to calculate total liability. But there are strict methodology requirements. If auditors deviated from protocols or made unreasonable assumptions, your legal team can fight the extrapolated damages[5].

4. Coding Ambiguity

In some cases, billing rules or coding guidelines may have been unclear or contradictory when the errors occurred. Your attorneys can argue that any confusion should mitigate penalties, especially if you made good-faith efforts to comply.

5. Self-Reporting

If you discover billing issues and promptly self-report to authorities, it can show cooperation and good faith. In some cases self-reporting can reduce penalties or even avoid criminal prosecution.

6. Effective Compliance Program

Having a robust compliance program shows you took reasonable steps to prevent errors. It also helps demonstrate lack of intent for any mistakes. Your attorneys can showcase compliance efforts in your defense.