Was there fraudulent coding just because I used a novel treatment approach?
Dr. Skin has been a successful dermatologist for over 20 years. Ten years ago, recognizing that his office expenses continued to rise despite decreasing revenues from his medical dermatology patients, Dr. Skin decided to offer some cosmetic treatments to his patients. After taking several courses, he opted to provide his patients with both dermal filler and neuromodulator injections.
His financial situation began to improve and Dr. Skin decided to bring laser treatments into his office. After considering various possibilities, he bought an intense pulsed light source laser (IPL) because such technology has been used to treat vascular and pigmented lesions as well as to remove unwanted hair and provide facial rejuvenation.
Unfortunately, the initial burst of increased revenues from these cosmetic treatments waned and Dr. Skin was left with the dilemma of trying to make his monthly cosmetic device lease payments without the requisite income required to support the payments. He decided to become creative after he noticed that some of his older IPL-treated patients appeared to have a decrease in facial actinic keratoses after their treatment.
Over the course of the next few years, Dr. Skin used his IPL to treat virtually every actinic keratosis patient and coded for a medical destructive treatment. Both Medicare and non-Medicare patients were treated in this manner, generating hundreds of thousands of dollars in extra revenues for Dr. Skin.
Ultimately both private carriers and his Medicare carrier (by way of the US Department of Justice) audited his medical records and accused Dr. Skin of fraudulently using medical based coding for cosmetic IPL procedures. Dr. Skin seeks legal help. His attorney advises him that if he is found guilty of committing fraud, he faces both civil penalties as well as possible jail time. Is this true?
Both the Department of Justice (DOJ) and Dr. Skin are able to find experts to support their views. The DOJ expert argues that IPL is sold by industry and used by providers for cosmetic purposes. Furthermore, the DOJ expert argues that there are numerous more effective ways to treat actinic keratosis, including cryotherapy, topical chemotherapeutic agents and photodynamic therapy (PDT). The DOJ expert argues that IPL treatment of actinic keratosis is not the standard of care. Dr. Skin brings an expert who argues that there is both U.S. and European data that shows IPL treatment can lead to improvement in actinic keratoses. He argues that, although IPL is not usually used for the treatment of actinic keratoses, it can be considered as an alternative treatment modality consistent with the standard of care.