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Healthcare Upcoding Fraud Charges: How Lawyers Fight Them

Healthcare Upcoding Fraud Charges: How Lawyers Fight Them

Upcoding is one of the most common types of healthcare fraud. It’s when a provider bills for more expensive services than were actually delivered. Like billing for an extended hospital stay when the patient was only there overnight. Prosecutors take this seriously and upcoding charges can lead to huge fines and even jail time. But defense lawyers have plenty of strategies to fight back against upcoding allegations. This article will walk through the common ways lawyers defend clients against upcoding fraud charges.

What is Upcoding?

Let’s start with what upcoding actually is. Upcoding involves billing for a more complex or expensive service than the one performed. For example:

  • Billing a 30 minute doctor visit when you only saw the patient for 15 minutes
  • Using a billing code for a more extensive surgery than was actually done
  • Charging for brand name drugs when generics were dispensed
  • Billing specialized scans (MRIs, CT scans) as more complex than they were

The key is the provider bills for services that sound better on paper than what the patient actually got. This fraudulently earns higher reimbursements from Medicare, Medicaid and private insurers.

Question the Intent to Defraud

Prosecutors must prove the provider “knowingly and willfully” upcoded with intent to defraud. But defense lawyers argue many clients don’t realize they crossed a line. They claim the client:

  • Misunderstood complex billing rules
  • Made an innocent mistake in coding
  • Relied on billing agents saying the codes were proper
  • Had no intent to defraud

While ignorance doesn’t excuse fraud, it can cast doubt on knowingly upcoding. The lawyer tries to show it was an accident, not intentional deceit.

Claim the Rules Are Ambiguous

Billing rules are incredibly complex with grey areas. The defense argues their client billed in good faith based on reasonable interpretations of ambiguous rules. For example:

  • “The coding guidelines are unclear for a case like this.”
  • “Even experts disagree on the proper codes here.”
  • “The client picked a code they thought was valid.”

By arguing the rules have wiggle room for interpretation, it’s harder to prove intentional upcoding.

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Allege Innocent Coding Errors

The defense may claim the improper billing just reflects innocent coding mistakes, not fraud. They’ll argue things like:

  • “The billing agent made errors the provider wasn’t aware of.”
  • “The EMR auto-populated codes that were never checked.”
  • “Staff mixups led to codes getting switched.”

While mistakes don’t justify false claims, it muddies intent to defraud. Sloppy billing practices are easier to defend than intentional upcoding.

Try Negotiating a Settlement

Many upcoding cases settle out of court. The provider pays fines and penalties but avoids criminal charges. Defense lawyers work to get the best deal possible. Settlements often have confidentiality clauses too, avoiding bad publicity.

Blame Overworked Staff

The defense may argue overworked staff made innocent mistakes causing upcoding, like:

  • “Heavy caseloads led to billing errors.”
  • “Time pressures caused mistakes in coding.”
  • “Staffing shortages contributed to billing mixups.”

This aims for sympathy from judges and juries. External pressures provide context on how upcoding can happen absent fraud.

Highlight Lack of Patient Harm

The defense will scour medical records trying to prove patients got quality care despite any billing issues. No harm to patients helps undermine upcoding allegations.

Lawyers argue “While the billing codes may have been inaccurate, the treatment itself was proper.” Lack of patient impact is a strong mitigating factor.

Use Sentencing Guidelines for Leniency

If facing criminal conviction, the defense uses sentencing guidelines to argue for less punishment. Factors like:

  • No prior record
  • Cooperation with investigators
  • Low dollar amounts
  • Accepting responsibility

This pushes for the lightest possible sentence under the guidelines.

In Summary

Fighting healthcare upcoding charges is an uphill battle. But an experienced lawyer has many strategies to defeat allegations or reduce penalties. With the right defense, even legitimate providers can often achieve favorable outcomes when facing upcoding accusations.


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