John Oliver and “Upcoding”
John Oliver referred to “upcoding” in the September 20, 2026 episode of Last Week Tonight, so I wanted to share some thoughts, given my own experience with upcoding back when I was a federal prosecutor.
Upcoding is not a normal or even aggressive billing practice but is generally referred to as a type of fraud, waste or abuse that involves billing more for services than is appropriate.
This comes up a lot in terms of doctors’ visits with patients. Doctors bill for such visits based on certain criteria, which as of 2021 focus on the level of medical decision making involved or the amount of time actually spent with the patient. A visit that involves complicated medical decision making or takes a long time can and should be billed at higher levels and should result in a greater payment than a routine visit that is short.
Upcoding occurs when a doctor bills for a visit at a higher level than is actually warranted (e.g., billing a visit at level 5 instead of 3 or 4). This sometimes happens because of fraud– I once prosecuted a business owner who directed that visits be billed at higher levels than the doctors themselves chose. And this can also happen due to errors or negligence – I once helped convince prosecutors to not charge a doctor who billed improperly but was not acting with criminal intent as the government initially believed.
Overall, Medicare providers should review the requirements for the “evaluation and management” services that they regularly do, especially given the major revisions that took effect in 2021. In reality, many doctors do not know the billing rules and delegate billing to others, but I’ve seen some aggressive prosecutors treat billing mistakes as crimes and argue that Medicare providers should review every remittance advice that they receive.
In particular, Medicare providers should not automatically bill every visit at the same level and should be aware that most visits with established patients are billed at levels 3 and 4. Nationally, Medicare providers billed about 36 percent of all visits with established Medicare patients at level 3 and about 53 percent at level 4, and only 7 percent of visits were billed at level 5. If you’re regularly billing level 5, make sure that your processes and records are solid.
The graph below shows the distribution of office visits with established patients as billed to Medicare in 2024.
And the graph below shows that the use of level 3 has gone down over time as the use of levels 4 and 5 has increased – some of this may be fraud, but some of this is probably due to mistakes or negligence.
Both graphs are based on publicly available Medicare data that I’ve analyzed.
Also, on a related note, Medicare providers should be careful when billing for the services of a nurse practitioner or physician’s assistant under Medicare’s “incident-to” guidelines. I’ve seen many Medicare providers make mistakes in incident-to billing, and I’ve also unfortunately seen some aggressive prosecutors treat such mistakes as crimes.
Finally, doctors should remember that if there are problems in your billing, identifying and addressing problems yourself can avoid worse problems later on, such as a criminal investigation and prosecution.
Hope this helps!
