Issues in Ethics: Representation of Services for Insurance Reimbursement, Funding, or Private Payment
About This Document
Published 2010. This Issues in Ethics statement is a revision of Representation of Services for Insurance Reimbursement, Funding, or Private Payment (2006). It has been updated to make any references to the Code of Ethics consistent with the Code of Ethics as revised in 2010. The Board of Ethics reviews Issues in Ethics statements periodically to ensure that they meet the needs of the professions and are consistent with ASHA policies.
Issues in Ethics Statements: Definition
From time to time, the Board of Ethics determines that members and certificate holders can benefit from additional analysis and instruction concerning a specific issue of ethical conduct. Issues in Ethics statements are intended to heighten sensitivity and increase awareness. They are illustrative of the Code of Ethics and intended to promote thoughtful consideration of ethical issues. They may assist members and certificate holders in engaging in self-guided ethical decision-making. These statements do not absolutely prohibit or require specified activity. The facts and circumstances surrounding a matter of concern will determine whether the activity is ethical.
This Issues in Ethics statement is furnished by the Board of Ethics to provide guidance to speech-language pathologists (SLPs) and audiologists concerning representations made to obtain insurance reimbursement or funding. The purpose of this statement is to focus attention on the ethical impropriety of engaging in any of the following activities for the purpose of obtaining reimbursement or funding. These six behaviors may result in an ethics challenge or charge. Each of the six following categories will be discussed in detail later in the text:
- Misrepresenting information to obtain reimbursement or funding, regardless of the motivation of the provider.
- Providing service when there is no reasonable expectation of significant communication or swallowing benefit for the person served.
- Scheduling services more frequently or for longer than is reasonably necessary.
- Requiring staff to provide more hours of care (e.g., the “3-hour rule”) than can be justified in a Prospective Payment environment such as acute rehabilitation, long-term care, or home care.
- Supervision of students or other service providers in a fee-for-service environment.
- Providing professional courtesies or complimentary care for referrals or otherwise discounting care not based on documented need.
Definition of Fraud and Abuse
ASHA's Code of Ethics aspires to place the profession well above legal standards. The Office of the Inspector General in the Department of Health and Human Services is responsible for the monitoring and prosecution of Medicare and Medicaid fraud and abuse perpetrated by providers. Fraud is when a provider is suspected of intentionally attempting to defraud the government by committing a crime such as billing for services that were never provided or falsifying claims to inflate the cost to the government. Abuse on the other hand may best be described by examples such as those provided by Nordian, one of the Medicare carriers:
- Excessive charges for services or supplies
- Claims for services that aren't medically necessary
- Breach of the Medicare participation or assignment agreements
- Improper billing practices
For example, a provider may make a mistake on coding and documenting a given activity and, once apprised by either an external or internal audit, proceeds to perform the same mistake again and again, resulting in financial gain. Obviously the professions must guard against fraud and abuse and encourage professionals to report conduct that is illegal or fraudulent.
1. Misrepresenting Information to Obtain Reimbursement or Funding
Accurate documentation of services provided is essential and is the responsibility of the professional who is providing the clinical services, regardless of the manner in which bills are submitted for reimbursement.
For example, professionals who provide contract services through an agency must keep detailed records of the patients seen, including times, dates, and duration of appointments, as well as the specific services provided, including any supervision of students or support personnel.
Furthermore, professionals providing appropriate treatment must avoid misrepresenting information about the nature of the treatment, even if they believe that they “have the patient's best interests in mind.” For example, an SLP may not ethically represent a child with a “functional articulation disorder” (for which costs are generally not reimbursed) as having “apraxia of speech” (for which costs are generally reimbursed) in order to obtain insurance coverage for treatments. The fact that the child's family may not otherwise be able to pay for the treatment, and that the professional believes that the service should be covered, does not ethically excuse the misrepresentation.
Similarly, using an individual therapy code for treatment groups (if no group treatment code exists) may be a violation of the Code of Ethics.
A professional may not ethically select a code for a patient for the sole purpose of obtaining reimbursement. For example, an SLP should not select the code for electrical stimulation for e-stim with swallowing patients when the standard swallowing therapy code should be used.
In audiology, the provision of limited vestibular rehabilitation services is reasonable for audiologists who are trained to deliver those services. However, using the appropriate Current Procedural Terminology code may be in conflict with payer policies and constitute a possible ethical violation.
Similarly, to obtain insurance coverage not otherwise available, a professional may not ethically report the name of the patient's physician as a referral source (generally required for reimbursement), when the physician did not refer the patient.
ASHA professionals should be current with payment policies and updates from all payers. With a question regarding Medicare or Medicaid coverage, the Medicare local contractors are the most reliable contacts because they may have local coverage determinations in speech-language pathology and audiology. They also have Web sites that can be located through the use of the Centers for Medicare and Medicaid Services (CMS) site. Members are also encouraged to contact ASHA's Healthcare Economics Team at 800-498-2071 or via e-mail at [email protected] with any reimbursement queries.
2. Providing Service When There Is No Reasonable Expectation of Significant Communication or Swallowing Benefit for the Person Served
Audiologists and SLPs are compelled to consider the overall status of the persons served in making decisions about the nature of their evaluations and the provision of treatment. Professionals must not provide services when the prognosis is too poor to justify professional treatment. The provision of such services is an unethical exploitation of those served, regardless of whether services are undertaken for the purpose of obtaining reimbursement. Professionals may not rationalize that the absence of harm to the person served justifies payment or funding.
For example, a professional who identifies specific persons in a nursing home as not likely to have significant communication benefit from speech or language therapy may not ethically provide therapy to those persons even if the services may be reimbursed by Medicare.
In the realm of audiology, when the use of assistive listening devices will meet the communication needs of the persons served, audiologists may not ethically dispense hearing aids simply because insurance will cover the cost.
Similarly, professionals may not exaggerate the extent of improvement in order to obtain or continue reimbursement. Providing a patient with social support that is not related to treatment and does not require the expertise of an SLP or audiologist is not a justification for the billing of such activities as professional services.
Professionals in schools, where funding is often based on caseload counts, may not, in order to maintain the level of funding, retain in treatment students who have exhibited no significant progress or for whom there is no reasonable expectation of progress.
Supervisors in university clinics may not enroll patients in a fee-for-service clinic where there is no expectation of improvement or maintenance of skills strictly for the purpose of “training students.” It may be considered ethical to provide such care at no cost to the patient/client provided the patient/client and significant other are advised of the likely therapy outcome in advance of enrolling in treatment. An approach in which the patient/client is willing to serve as a peer counselor or coach for the purposes of educating students may be acceptable if all parties are informed of the nature of the clinical relationship and if fees are not charged.
3. Scheduling Services More Frequently or for Longer Than Is Reasonably Necessary
The provision of speech, language, swallowing, or hearing services should be based on clinical need rather than the availability of funding from third-party payers.
While comprehensive evaluation of auditory and/or balance function may be important components of a diagnostic assessment, the selection of the procedures employed must be based on evidence regarding the contribution of each procedure rather than on whether services are covered by insurance.
It is unethical to charge for or provide intensive speech-language and swallowing treatment when fewer hours would achieve the same benefit for the patient, merely because those additional services will be reimbursed.
In the event that a patient may be achieving maximum benefit from treatment and yet the family wishes to pay for increased services out of pocket, it would be unethical to provide the additional services and accept the out-of-pocket reimbursement. Further, it is inappropriate to accept remuneration in the form of a valuable gift for such services.
4. Requiring Staff to Provide More Hours of Care (e.g., the “3-Hour Rule”) Than Can Be Justified in a Prospective Payment Environment Such as Acute Rehabilitation, Long-Term Care, or Home Care
For example, in-patient rehabilitation facilities (IRFs), which provide services under Medicare guidelines, require patients to receive 3 hours of therapy 5 days per week as a condition of being placed in the IRF. SLPs, often considered part of the 3-hour rule with neurologically impaired patients, may not provide more intervention services than are required in order to fill the 3-hour requirement. Increasing the frequency and intensity of SLP treatment to compensate for a low patient census/high SLP staffing ratio may be a violation of the Code of Ethics.
5. Supervision of Students or Other Service Providers in a Fee-for-Service Environment
The amount of direct supervision of students is influenced by several factors. Requirements for supervision of students are provided by the Council for Clinical Certification (CFCC) and incorporated into standards for training program accreditation by the Council on Academic Accreditation (CAA). Students may never be considered to be an “extra” professional in a clinical setting, and supervisors must provide guidance and direct supervision at a level that is commensurate with the student's skills and in compliance with CFCC and CAA requirements. Additionally, services provided by students may be addressed specifically in guidelines established by payers in the fee-for-service environment. For example, appropriately supervised students may provide services charged under Medicare Part A, but reimbursed services must be provided by the qualified professional who may be assisted by a student under Medicare Part B. Because payer guidelines, even those governed by a single entity such as CMS, may differ by setting or type of service, it is the ethical responsibility of the SLP or audiologist to abide by all applicable guidelines.
It is important to stress the need for keeping abreast of all payment policies, rules, and regulations. History has shown that such payment policies change and thus may put the provider at risk.
6. Providing Professional Courtesies or Complimentary Care for Referrals or Otherwise Discounting Care Not Based on Documented Need
In a very competitive marketplace, professionals may be induced to discount rates to persons served who are referred by a given physician who makes a large number of referrals.
Physicians may not be induced to refer patients either through gifts or gratuities or by discounting services to families or friends.
Sliding fee scales may be used when the person served meets specific guidelines that are similarly available for all qualifying individuals within a practice. Fee alterations may not be provided based on favored referral sources or personal relationships.
Commentary Regarding the Reimbursement Environment
The above examples, scenarios, and guidelines describe ethical dilemmas professionals may confront in a highly competitive environment in which productivity and efficiency are considered primary professional criteria. Before citing the specific principles in the ASHA Code of Ethics that may be in question, the following observations are made in an attempt to assist the professional in “doing the right thing” under the guidance of the ASHA Code of Ethics.
Ethical issues are the same regardless of payee, whether Medicare, Medicaid, managed care, fee-for-service, or self-pay.
Audiology and speech-language services should not be limited to a clear restorative/functional outcome. Rationale and literature exist that support the practice of providing services not just for restorative care but for prevention and maintenance. Services may not always be reimbursed in keeping with their actual value, but professionals are obliged to care for individuals when there is reasonable expectation that a given intervention may either prevent deterioration in communication and/or swallowing or maintain functional communication and/or swallowing.
Whether restorative, preventative, or maintenance interventions are deemed necessary for a given client/patient, professionals are required to consider evidence-based practices and provide documentation that includes quantifiable and measurable changes.
Finally, even if a needed service is not currently covered in the reimbursement system, professionals are encouraged to provide these services and document the outcomes. These outcomes may be used to appeal denials of claims or to provide evidence of efficacy of treatments that may one day become reimbursed based on documentation from many providers. The reimbursement environment is a dynamic one. Audiologists and SLPs must be focused and professional in making ethical decisions in such a milieu.
Guidance From the Code of Ethics
The Association's Code of Ethics provides guidance concerning these reimbursement issues. The Code of Ethics states that
individuals shall evaluate the effectiveness of services rendered and of products dispensed, and they shall provide services or dispense products only when benefit can reasonably be expected (Principle of Ethics I, Rule I);
individuals shall not charge for services not rendered, nor shall they misrepresent services rendered, products dispensed, or research and scholarly activities conducted (Principle of Ethics I, Rule O);
individuals shall not misrepresent research, diagnostic information, services rendered, results of services rendered, products dispensed, or the effects of products dispensed (Principle of Ethics III, Rule D);
individuals shall not defraud or engage in any scheme to defraud in connection with obtaining payment, reimbursement, or grants for services rendered, research conducted, or products dispensed (Principle of Ethics III, Rule E);
individuals shall not engage in dishonesty, fraud, deceit, or misrepresentation (Principle of Ethics IV, Rule C).
The paramount rule for ensuring proper representations in connection with diagnosis and treatment is that professionals must follow their own best clinical judgment in formulating diagnoses, prognoses, and treatment plans. They must present information for reimbursement accurately, and that information must be consistent with the diagnoses and treatment plans. A practitioner must not alter a diagnosis or treatment plan solely to obtain, continue, or increase reimbursement or funding. This ethical prohibition is not affected by the motivation of the provider, whether the representation is made for the benefit of the person served, the provider, or the provider's employer. Professionals may not ethically justify such conduct as being in the best interest of the patient. Misrepresenting information, providing treatment with little expectation of communication or swallowing benefit, and providing treatment in excess of that which is professionally required are unethical actions. This is true for practitioners in all employment settings.
Information must be presented accurately and honestly to the person served, the person's family, third-party payers, and funding sources. It should be noted that if patients, or their significant others, wish to receive necessary services that are also services whose costs are not reimbursed by insurance carriers, they should be advised that they themselves are responsible for the costs of the services.