To round out this week’s emails addressing balance billing, many comments I have received reflect the old adage, if a tree falls in the forest and no one is there to witness the fall, does the crash make a sound?  The same question relates to many areas of healthcare, which is, if no one is there to witness lack of compliance, does that mean there is no lack of compliance?  

To answer in the context of balance billing, the risk of non-compliance for balance billing is potentially everywhere.  From a practical standpoint, balance billing issues may arise through the audit process from a third party payor.  As auditors are out in full force (requesting records, taking magnified looks at practices, etc.) it is important to digest that many auditors are not just looking at coding submitted, and reimbursement paid or requested.  Auditors are analyzing balance billing issues to determine provider UCRs to monitor appropriate third party payor reimbursement.  

While a typical audit by a third party payor would not result in a balance billing investigation, any audit may potentially open the door to a Department of Insurance, OIG, Office of Professional Misconduct or Office of Professional Discipline, or Department of Justice investigation (to name a few).  In addition, whistleblowers or disgruntled staff, patients or competitors may make a complaint about balance billing practices at any time to any of the above agencies or others.  While balance billing reviews are not as frequent at this time as recoupment demands for upcoding and non-medically necessary treatments (as observed by K&K's healthcare practice) that does not mean that you should not make sure to comply with applicable laws to ensure you are correctly billing third party payors and patients.   

For additional information on this topic, contact Jennifer Kirschenbaum at (516)-747-6700 ext. 302 or at

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