It’s virtually axiomatic that if you’re performing a review of your coding, the review should be done under attorney-client privilege. I have said this before on Monitor Mondays and written about it here. But increasingly, I believe that I was wrong, and most coding reviews should not be done under privilege. Let me explain why.
Under the 60-day rule, you must report and return an overpayment within 60 days of its identification. Consider the implications of this in the context of a coding review. If you find a problem, you are going to have to disclose it to the government, whether that review is done under privilege or not. The main reason people think of using a privilege is so you don’t have to disclose the bad things you uncover. But since you have to return the overpayment and describe why it happened when there is an overpayment, the privilege isn’t going to have much of an impact.
There is very little upside to the privilege.
Next, imagine you perform a review and find that everything is good and there is nothing to disclose to the government – but then an employee raises concerns about the topic you’ve reviewed. In fact, let’s say that they have gone to the government and said that they raised the complaint to you, but you didn’t take them seriously.
When the government contacts you, you will want to share your internal review and say “we did take the complaint seriously, and we looked, and we think it is fine!” You will want to justify your decision not to refund the money. But if the review was done under privilege, you’re going to need to waive attorney-client privilege to share the report. That’s possible, but it comes with complications. The scope of a privilege waiver can be quite complicated. In theory, one can waive privilege with respect to topic A while maintaining privilege with respect to topic B – but in practice, things get materially more complex.
This can happen in a variety of ways. For example, perhaps you engaged the consultant to review your physicians’ compensation and coding. The review found that their coding was great, but suggested that a couple of physicians are at the upper end of the fair-market value range, and it suggests reforms. It is far from clear that you can release the coding portion of the report while declining to release the compensation portion.
I still think there are some benefits of using privilege during a coding review. For example, I often want to tweak the wording of the report, and privilege can prevent a poorly drafted report from being circulated. But increasingly, I think coding reviews may be best done without invoking privilege.
That doesn’t mean all compliance reviews should be unprivileged. For a compensation review, or an investigation into possible kickbacks, I’m still definitely a fan of using the privilege. In those situations, duty to report is very, very different. If the question is medical necessity, I think privilege still likely makes sense. But when it comes to coding reviews, I think Carly Simon might be on to something, and that it’s best when “we have no secrets; we tell each other everything.” Essentially, that is what the 60-day rule winds up requiring.
EDITOR’S NOTE:
The opinions expressed in this article are solely those of the author and do not necessarily represent the views or opinions of MedLearn Media. We provide a platform for diverse perspectives, but the content and opinions expressed herein are the author’s own. MedLearn Media does not endorse or guarantee the accuracy of the information presented. Readers are encouraged to critically evaluate the content and conduct their own research. Any actions taken based on this article are at the reader’s own discretion.
Here at MedLearn, we know cardiology coders are the unsung heroes of patient care. Every day, as a cardio coder you navigate complex cardiovascular procedures, including the constantly –changing CPT® and ICD-10-CM
The recent settlement between Kaiser Permanente and the federal government marks a pivotal moment in the ongoing debate over risk-adjustment practices in Medicare Advantage (MA)
Please log in to your account to comment on this article.
Expert presenters Kathy Pride, RHIT, CPC, CCS-P, CPMA, and Brandi Russell, RHIA, CCS, COC, CPMA, break down complex fracture care coding rules, walk through correct modifier application (-25, -57, 54, 55), and clarify sequencing for initial and subsequent encounters. Attendees will gain the practical knowledge needed to submit clean claims, ensure compliance, and stay one step ahead of payer audits in 2026.
Accurately determining the principal diagnosis is critical for compliant billing, appropriate reimbursement, and valid quality reporting — yet it remains one of the most subjective and error-prone areas in inpatient coding. In this expert-led session, Cheryl Ericson, RN, MS, CCDS, CDIP, demystifies the complexities of principal diagnosis assignment, bridging the gap between coding rules and clinical reality. Learn how to strengthen your organization’s coding accuracy, reduce denials, and ensure your documentation supports true medical necessity.
Denials continue to delay reimbursement, increase administrative burden, and threaten financial stability across healthcare organizations. This essential webcast tackles the root causes—rising payer scrutiny, fragmented workflows, inconsistent documentation, and underused analytics—and offers proven, data-driven strategies to prevent and overturn denials. Attendees will gain practical tools to strengthen documentation and coding accuracy, engage clinicians effectively, and leverage predictive analytics and AI to identify risks before they impact revenue. Through real-world case examples and actionable guidance, this session empowers coding, CDI, and revenue cycle professionals to shift from reactive appeals to proactive denial prevention and revenue protection.
Sepsis remains one of the most frequently denied and contested diagnoses, creating costly revenue loss and compliance risks. In this webcast, Angela Comfort, DBA, MBA, RHIA, CDIP, CCS, CCS-P, provides practical, real-world strategies to align documentation with coding guidelines, reconcile Sepsis-2 and Sepsis-3 definitions, and apply compliant queries. You’ll learn how to identify and address documentation gaps, strengthen provider engagement, and defend diagnoses against payer scrutiny—equipping you to protect reimbursement, improve SOI/ROM capture, and reduce audit vulnerability in this high-risk area.
Stay ahead of the 2026-2027 audit surge with “Top 10 Audit Targets for 2026-2027 for Hospitals & Physicians: Protect Your Revenue,” a high-impact webcast led by Michael Calahan, PA, MBA. This concise session gives hospitals and physicians clear insight into the most likely federal audit targets, such as E/M services, split/shared and critical care, observation and admissions, device credits, and Two-Midnight Rule changes, and shows how to tighten documentation, coding, and internal processes to reduce denials, recoupments, and penalties. Attendees walk away with practical best practices to protect revenue, strengthen compliance, and better prepare their teams for inevitable audits.
As AI reshapes healthcare compliance, the risk of biased outputs and opaque decision-making grows. This webcast, led by Frank Cohen, delivers a practical Four-Pillar Governance Framework—Transparency, Accountability, Fairness, and Explainability—to help you govern AI-driven claim auditing with confidence. Learn how to identify and mitigate bias, implement robust human oversight, and document defensible AI review processes that regulators and auditors will accept. Discover concrete remedies, from rotation protocols to uncertainty scoring, and actionable steps to evaluate vendors before contracts are signed. In a regulatory landscape that moves faster than ever, gain the tools to stay compliant, defend your processes, and reduce liability while maintaining operational effectiveness.
Get clear, practical answers to Medicare’s most confusing regulations. Join Dr. Ronald Hirsch as he breaks down real-world compliance challenges and shares guidance your team can apply right away.
Federal auditors are zeroing in on Inpatient Rehabilitation Facility (IRF) and hospital rehab unit services, with OIG and CERT audits leading to millions in penalties—often due to documentation and administrative errors, not quality of care. Join compliance expert Michael Calahan, PA, MBA, to learn the five clinical “pillars” of IRF-PPS admissions, key documentation requirements, and real-life case lessons to help protect your revenue.
Prepare for the 2025 CMS IPPS Final Rule with ICD10monitor’s IPPSPalooza! Click HERE to learn more
Get 15% OFF on all educational webcasts at ICD10monitor with code JULYFOURTH24 until July 4, 2024—start learning today!
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 1 with code CYBER25
CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24
