Weighing Privilege for Internal Coding Reviews

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.