Rounding time, waived copays, 90837 for 50 minutes: the fraud line

Am I committing fraud if I never meant to?

Possibly, and intent is not the test. The Office of Inspector General states plainly that under the civil False Claims Act no specific intent to defraud is required, and that "knowing" covers not only actual knowledge but also deliberate ignorance or reckless disregard of the truth or falsity of the information 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal.. A habit repeated for four years without ever reading the rule sits inside that definition.

The FCA and the solo practice meet there: with no billing department, nothing stands between the habit and the claim.

But the federal rules quoted on this page reach federal money. The False Claims Act analysis, the kickback exposure and the beneficiary-inducement penalty all attach to Medicare and Medicaid business. A commercial plan governs the same habits through the participation agreement you signed, so a practice that clears a federal rule can still breach a contract term.

OIG's booklet for new physicians states that filing false claims may result in fines of up to three times the programs' loss plus $11,000 per claim filed, and that each item or service billed to Medicare or Medicaid counts as a claim 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal.. That is the statutory number as the booklet prints it; the per-claim amount is inflation-adjusted and is higher today.

This page stays on session time, cost-share and codes that no longer exist. Telehealth enforcement, with its place-of-service and modifier questions, is a separate subject.

Rounding a 50-minute session up to 90837

Under the Medicare time bands, a 50-minute psychotherapy session does not support 90837. One Medicare contractor's billing and coding article instructs billers to choose the code closest to the actual time, giving 16 to 37 minutes for CPT codes 90832 and 90833, 38 to 52 minutes for 90834 and 90836, and 53 or more minutes for 90837 and 90838 2Ref 2First Coast Service Options, Inc. (A and B MAC, Jurisdiction N), for the Centers for Medicare & Medicaid Services (2025).Billing and Coding: Psychiatric Diagnostic Evaluation and Psychotherapy Services (A57520).The psychotherapy time arithmetic and its jurisdiction: 16-37 minutes for 90832/90833, 38-52 for 90834/90836, 53 or more for 90837/90838, the instruction to choose the code closest to the actual time, and the requirement that start and stop times or total times be documented for the time-based codes, described as one MAC's article for Jurisdiction N with a 2025 revision rather than a national rule.. Fifty minutes lands in the middle band.

The article is First Coast Service Options' own document for Jurisdiction N, which covers Florida, Puerto Rico and the U.S. Virgin Islands, with a revision effective January 1, 2025. It is a contractor's documentation expectation applied to Medicare claims rather than a nationwide statute. Your own MAC publishes its article, and commercial payers set their own policy in the contract. The timed individual codes, 90832, 90834, 90837, are common ground; the minute ranges are what you verify per payer.

The same article states that psychotherapy CPT codes 90832 through 90838 are time-based, and that start and stop times or total times must be documented for 90832, 90834 and 90837 2Ref 2First Coast Service Options, Inc. (A and B MAC, Jurisdiction N), for the Centers for Medicare & Medicaid Services (2025).Billing and Coding: Psychiatric Diagnostic Evaluation and Psychotherapy Services (A57520).The psychotherapy time arithmetic and its jurisdiction: 16-37 minutes for 90832/90833, 38-52 for 90834/90836, 53 or more for 90837/90838, the instruction to choose the code closest to the actual time, and the requirement that start and stop times or total times be documented for the time-based codes, described as one MAC's article for Jurisdiction N with a 2025 revision rather than a national rule.. The note carries the times. A time-based code with no time in the record is the pattern an auditor finds fastest.

OIG's booklet records where the pattern ends at its worst. A psychiatrist was fined $400,000 and permanently excluded from the federal health care programs for misrepresenting that he provided therapy sessions requiring 30 or 60 minutes of face-to-face time when he had provided only medication checks of 15 minutes or less 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal.. A rounded 50-minute hour is a long way from that, but the mechanism is the same: the claim states a length the record does not support.

The copay you stopped collecting

Forgiving a copay for one client who cannot pay is permitted. Making it standing policy is the problem. OIG's fraud alert on the routine waiver of Medicare Part B copayments and deductibles states that a provider who routinely waives them is misstating its actual charge, and that the practice results in false claims, kickback exposure and excessive utilization 3Ref 3U.S. Department of Health and Human Services, Office of Inspector General (1994).Routine Waiver of Part B Co-payments/Deductibles.The mechanism behind the copay-waiver line: that a provider who routinely waives Medicare Part B copayments or deductibles is misstating its actual charge, that routine waiver results in false claims, kickback exposure and excessive utilization, and the hardship exception's conditions of occasional use for a particular patient's financial need with a good faith collection effort otherwise..

The hardship exception survives, and it is narrow. The alert says it must not be used routinely, that it should be used occasionally to address the special financial needs of a particular patient, and that outside such cases a good faith effort to collect deductibles and copayments must be made 3Ref 3U.S. Department of Health and Human Services, Office of Inspector General (1994).Routine Waiver of Part B Co-payments/Deductibles.The mechanism behind the copay-waiver line: that a provider who routinely waives Medicare Part B copayments or deductibles is misstating its actual charge, that routine waiver results in false claims, kickback exposure and excessive utilization, and the hardship exception's conditions of occasional use for a particular patient's financial need with a good faith collection effort otherwise.. OIG's physician booklet gives the operational version: routinely waiving copays could implicate the Anti-Kickback Statute, you may not advertise that you forgive them, and a waiver is permitted on an individual determination that the patient cannot afford to pay or where reasonable collection efforts fail 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal.. The same booklet states that free or discounted care to uninsured people is legal 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal..

Routine waivers are the pattern those documents name. A hardship decision written down for one client on the day it was made, with the reason, is a different record.

A second penalty sits behind the same conduct and it reaches only federal beneficiaries. OIG's 2002 bulletin on gifts and inducements describes civil money penalties of up to $10,000 for each wrongful act where someone offers a Medicare or Medicaid beneficiary remuneration the person knows or should know is likely to influence the beneficiary's selection of a particular provider. Waived cost-sharing counts as remuneration 4Ref 4Office of Inspector General, U.S. Department of Health and Human Services (2002).Special Advisory Bulletin: Offering Gifts and Other Inducements to Beneficiaries.The scope and size of the beneficiary-inducement civil money penalty: that it reaches remuneration offered to Medicare or Medicaid beneficiaries likely to influence their selection of a provider, that waived cost-sharing counts as remuneration, and the up-to-$10,000-per-wrongful-act figure as printed in the 2002 bulletin.. That is the figure the 2002 bulletin prints, and it has been inflation-adjusted since.

For a commercially insured client the question is contractual. Whether your agreement obliges you to collect the plan's cost-share, and whether a published sliding scale changes the fee the plan is billed against, are answered in its fee and cost-share clauses. Read them before setting a policy, and take a clause you cannot parse to a health care attorney.

The add-on code your template still carries

Prolonged-services codes 99354 through 99357 were deleted effective CY 2023, and CMS set that out in the CY 2023 Physician Fee Schedule final rule 5Ref 5Centers for Medicare & Medicaid Services (2022).Medicare and Medicaid Programs; CY 2023 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment and Coverage Policies; Medicare Shared Savings Program Requirements; Implementing Requirements for Manufacturers of Certain Single-dose Container or Single-use Package Drugs To Provide Refunds With Respect to Discarded Amounts; and COVID-19 Interim Final Rules.The deletion of CPT prolonged-services codes 99354 through 99357 effective CY 2023, the rule's own description of what 99354/99355 had covered, and the establishment of G0316, G0317 and G0318 as add-ons to named E/M codes, which is what places prolonged services in the E/M family and outside standalone psychotherapy.. The rule describes what 99354 and 99355 had covered (prolonged evaluation and management, or E/M, or psychotherapy service beyond the typical time of the primary procedure) and establishes Medicare-specific replacements, G0316, G0317 and G0318, as add-ons to named E/M codes 5Ref 5Centers for Medicare & Medicaid Services (2022).Medicare and Medicaid Programs; CY 2023 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment and Coverage Policies; Medicare Shared Savings Program Requirements; Implementing Requirements for Manufacturers of Certain Single-dose Container or Single-use Package Drugs To Provide Refunds With Respect to Discarded Amounts; and COVID-19 Interim Final Rules.The deletion of CPT prolonged-services codes 99354 through 99357 effective CY 2023, the rule's own description of what 99354/99355 had covered, and the establishment of G0316, G0317 and G0318 as add-ons to named E/M codes, which is what places prolonged services in the E/M family and outside standalone psychotherapy..

The replacements attach to E/M codes, which puts prolonged services in the E/M family and out of reach of a standalone psychotherapy session that ran long 5Ref 5Centers for Medicare & Medicaid Services (2022).Medicare and Medicaid Programs; CY 2023 Payment Policies Under the Physician Fee Schedule and Other Changes to Part B Payment and Coverage Policies; Medicare Shared Savings Program Requirements; Implementing Requirements for Manufacturers of Certain Single-dose Container or Single-use Package Drugs To Provide Refunds With Respect to Discarded Amounts; and COVID-19 Interim Final Rules.The deletion of CPT prolonged-services codes 99354 through 99357 effective CY 2023, the rule's own description of what 99354/99355 had covered, and the establishment of G0316, G0317 and G0318 as add-ons to named E/M codes, which is what places prolonged services in the E/M family and outside standalone psychotherapy.. A long session is billed through the psychotherapy time band the minutes fall in, with the times in the record. Verify no later rule has changed this; the fee schedule is rewritten every year.

The habit to audit here lives in a saved template. An EHR favorites list, a superbill and a claim scrubber all keep carrying a code after the code set drops it, and a claim built from a stale template is still a claim filed under your NPI. Pull one quarter of your claims by code and look for anything the current code set no longer contains.

How to find out which habit is wrong before a payer does

Make the payer state its reason in writing, then read the rule it names. For non-grandfathered group health plans and issuers, 45 CFR 147.136 requires that the reason given for an adverse benefit determination include the denial code and its corresponding meaning together with the plan's standard, and that the diagnosis and treatment codes with their meanings be supplied on request. Asking does not count as an appeal 6Ref 6U.S. Department of Health and Human Services (2026).45 CFR 147.136 — Internal claims and appeals and external review processes.The reader's lookup for making a payer state its reason: that an adverse benefit determination must give the denial code and its corresponding meaning together with the plan's standard, and that the diagnosis and treatment codes with their meanings are supplied on request without that request counting as an appeal..

A request that costs nothing and starts no clock is the cheapest audit a practice without a biller has. Ask for the codes and meanings on any denial you do not understand.

Three lookups cover most of what a solo practice bills:

• your own MAC's billing and coding article for the four or five codes you use most, read once a year
• each commercial payer's participation agreement, specifically the fee schedule and the cost-share clause
• a quarterly pull of your claims by code and by units, sorted high to low

Keep the billing paper with the clinical record. The claim, the remittance advice, the payer's stated reason and the session times then sit in one place, and a records request answered out of one folder is a shorter conversation than one assembled from three systems under a deadline.

What to do on the day you find one

Report and return it, on a clock the regulation sets. A person who has received a Medicare or Medicaid overpayment must report and return it by the later of 60 days after the date the overpayment was identified, or the date any corresponding cost report is due 7Ref 7Centers for Medicare & Medicaid Services, Department of Health and Human Services (2016).42 CFR 401.305 — Requirements for reporting and returning of overpayments.The correction path after a clinician finds her own mis-billing: the report-and-return obligation within 60 days of identification or the cost report due date, the borrowing of 'identified' from the False Claims Act's knowing standard, and the suspension of the deadline while an OIG Self-Disclosure Protocol submission is pending.. The regulation borrows "identified" from the False Claims Act's "knowing" standard, which means the 60 days can start before anyone outside the practice knows anything 7Ref 7Centers for Medicare & Medicaid Services, Department of Health and Human Services (2016).42 CFR 401.305 — Requirements for reporting and returning of overpayments.The correction path after a clinician finds her own mis-billing: the report-and-return obligation within 60 days of identification or the cost report due date, the borrowing of 'identified' from the False Claims Act's knowing standard, and the suspension of the deadline while an OIG Self-Disclosure Protocol submission is pending..

The deadline is suspended while a submission under OIG's Self-Disclosure Protocol is pending 7Ref 7Centers for Medicare & Medicaid Services, Department of Health and Human Services (2016).42 CFR 401.305 — Requirements for reporting and returning of overpayments.The correction path after a clinician finds her own mis-billing: the report-and-return obligation within 60 days of identification or the cost report due date, the borrowing of 'identified' from the False Claims Act's knowing standard, and the suspension of the deadline while an OIG Self-Disclosure Protocol submission is pending.. That matters for sequencing: preparing a disclosure that takes longer than 60 days does not put you past the deadline while it sits with OIG.

Whether a given pattern is a straightforward refund or a self-disclosure is a judgment about exposure, and it belongs with a health care attorney before the first contact with a payer. The arithmetic underneath it is yours to do first. Pull the affected claims, count them, and total what was paid against what the correct code would have paid, because each item or service billed counts as a claim 1Ref 1U.S. Department of Health & Human Services, Office of Inspector General (2026).A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse.The civil False Claims Act's no-specific-intent and deliberate-ignorance/reckless-disregard standard, the booklet's own $11,000-per-claim plus treble-damages figure and the each-item-is-a-claim point, the psychiatrist fined $400,000 and permanently excluded for misrepresented therapy time, and the copayment rules: routine waiver implicating the AKS, no advertising, individual inability-to-pay determination or failed collection efforts, and free or discounted care to the uninsured being legal. and the count carries as much weight as the dollars.

A habit running four years produces a large count in an afternoon, which is the argument for pulling that report this week.