Portal Submission:
Relevant background: I was recently informed that my former employer is billing for caregiver training when they send a video training series (no staff present): I left this company because of ethical concerns, but I continue to hear of concerns from current staff.
Possible solutions: I have spoken with their lead BCBA (recent graduate) as well as encouraging her to ask questions or seek other employment (as I did).
Credentialing: Reporter is an LBA, supervisor is an LBA
Committee Input (e.g., considerations for pathways forward, potential barriers, potential solutions):
Disclaimer: The following guidance is based on relevant experience and resources and may differ by payor. This guidance is not intended as legal advice.
In regards to a BCBA billing email correspondence as caregiver training, it is first important to understand payer contracts. Regardless of the payer in this circumstance, both CPT® (97156) and HCPCS (S5110) code billing for caregiver training require face-to-face contact to meet the threshold as a billable service. According to the ABA Coding Coalition (2024), to meet “face-to-face” criteria, “... the provider is actively engaging the patient or caregiver in assessment or treatment.” Additionally, as further clarified by the ABA Coding Coalition (2019),
“There is no CPT code for reporting the indirect services separately, so they must be bundled with direct services for payment unless the contract with the payer includes a HCPCS or other code for reporting indirect services. As used here, bundled payment refers to payment for the work done prior to face-to-face time with the patient or caregiver (e.g., reviewing records), the work done with the patient or caregiver (e.g., delivering the treatment), and the work done after the face-to-face time with the patient or caregiver (e.g., writing a progress note). When payment is bundled, the face-to-face time is reported, but the work done prior to and after the face-to-face time is factored into the reimbursement rate.”
Emailing documents would be considered an indirect service that is supplemental to the medical service code of caregiver support and would not stand alone as a billable service. Under no circumstances is it permissible that a BCBA bill any direct service CPT or HCPCS code that they were not physically engaged with the client and/or caregiver.
The Centers for Medicare and Medicaid Services (CMS) defines fraud as “intentionally submitting false information to the Government or a Government contractor to get money or a benefit.” It is the responsibility of the supervising Licensed Behavior Analyst to ensure compliance with appropriate use of the CPT® and HCPCS codes as outlined by the payer contract, American Medical Association, CMS and National Correct Coding Initiative (NCCI). Regardless of the organization policies, the Licensed Behavior Analyst, through their provider agreement to participate in a health plan, must comply with all applicable state and federal laws. Practitioners who are unable or unwilling to align with applicable laws are subject AZBoPE and BACB disciplinary action.
While the original submission was related to billing practices, the Ethics Committee does have additional concerns regarding the LBA/organization’s current caregiver support model. While emailing support videos as supplemental exemplars would not be considered billable, these email correspondences should in no way serve as the only caregiver support provided by the BCBA. Follow-up information regarding standardized agency practices surrounding caregiver support would be warranted to determine if the organization/LBAs are indeed meeting their treatment requirement in this area.
The committee would like to acknowledge the reportee’s commitment to ethical practices and continued support of other Arizona behavior analysts. As a Licensed Behavior Analyst, the committee also reminds you that you are required to take action either by supporting your colleague in reporting these practices or doing so yourself.
Considerations for exploration:
In accordance with Ethics Codes 1.01, 1.02, 1.03, 2.06, 3.11, and 3.12, the committee recommends that the author attempt again to reach out to the overseeing BCBA(s) in question to discuss their concerns, if it is safe to do so and it is likely that a resolution can be reached. It may be unlikely based on your description of events that a change in behavior will occur. The committee would encourage the author to explore the following steps as options; this should not be considered legal employment advice:
1. If you have not already done so, write a formal letter to your colleague and/or to the executive administration, educating them on and outlining our ethical codes of conduct surrounding accuracy in service billing and reporting.
a. Documentation of your concerns can provide a clear statement for follow-up. It also demonstrates action on your part following the identification of an ethical concern, safeguarding your license and ability to practice.
2. If meaningful change is not made to satisfy the ethical code of conduct, the LBA should consider following the complaint guidelines for the Arizona State Licensure Board. The Committee would encourage the reportee to explore filing a complaint with the licensure board against the Licensed Behavior Analyst in the organization who is inappropriately billing if mediation using other, more informal methods does not yield an improved result.
a. Information on the complaint process can be found here: https://psychboard.az.gov/investigations
3. Report the concern and/or any additional findings directly to the payer or health plan’s Fraud, Waste and Abuse Hotline as soon as possible. If multiple health plans are involved, a single report to the AHCCCS Fraud Waste and Abuse portal, or the Arizona Attorney General’s office can be made. This can be done anonymously.
4. For additional support navigating billing rules, please visit abacodes.org.
5. For additional information on previous ethics submissions regarding billing, please visit: https://azaba.org/page-18090/13359153 and https://azaba.org/page-18090/13371102
Ethics Codes (specific standards that could apply to support/oppose):
● 1.01 Being Truthful
● 1.02 Conforming with Legal and Professional Requirements
● 1.03 Accountability
● 2.01 Providing Effective Treatment
● 2.06 Accuracy in Service Billing and Reporting
● 3.01 Responsibility to Clients
● 3.11 Documenting Professional Activity
● 3.12 Advocating for Appropriate Services
● ARS 32-2091.12(a), (e), (p), (z), (dd)
ABA Coding Coalition. 2024. Frequently Asked Questions - ABA Coding Coalition. ABA Coding Coalition. https://abacodes.org/frequently-asked-questions/
ABA Coding Coalition. 2019. “Supplemental Guidance on Interpreting and Applying the 2019 CPT Codes for Adaptive Behavior Services.” https://abacodes.org/wp-content/uploads/2019/06/CPT_SupplementalGuidance190109.pdf
