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From Health Law Daily, April 2, 2015

Time studies show doctor billed for over 24 hours per day

By Harold M. Bishop, J.D.

An optometrist, accused of violating the federal False Claims Act (FCA) by submitting claims to Medicare that sought payment for routine services to nursing home residents that were not reasonable or necessary, or were for a type or level of service that was not actually provided, failed to meet the burden necessary for summary judgment. The court found that the government’s evidence regarding the optometrist’s knowledge or intent to defraud, that certain services billed to Medicare were not medically necessary, and its use of time studies and statistical sampling to extrapolate liability and damages were sufficient to take the case to the jury (U.S. v. Robinson, March 31, 2015, Tatenhove, G.).

Background. The United States brought an action against Dr. Philip Robinson and his employer, Associates in Eye Care, P.S.C. (AEC) under the FCA, 31 U.S.C. §§3729-33. Robinson is an optometrist who provided optometric services to nursing home residents on a full-time basis from January 1, 2007, through January 31, 2012. AEC entered into a settlement with the government.

Robinson’s practice was to travel to various nursing homes, where he treated mainly long-term patients suffering from multiple conditions including dementia. According to his records, Robinson routinely saw more than 60 patients per day, for whom he later billed Medicare, and on 15 particular days within the relevant period he claimed to have examined over 90 patients who were Medicare beneficiaries. One particular day described in the government’s complaint was May 28, 2008, when Robinson claimed to have examined 117 Medicare beneficiaries. A total number of 25,779 claims were billed during the relevant time period, for which Medicare paid AEC almost $1.5 million.

In early 2007 and early 2008, Medicare contractors audited Robinson and concluded that 35 of the 96 services they reviewed should have been downcoded or denied. AEC chose not to appeal the finding, but in 2009, AEC retained a third-party consultant, Soterion Medical Services, to review a random sampling of Robinson’s services to nursing home patients. Soterion advised AEC that the audit’s results were not sufficient to sustain an appeal to recoup denied payments.

In October 2009, another CMS contractor, AdvanceMED PSC, reviewed AEC’s claims to Medicare for Robinson’s services to nursing home patients by examining 24 services provided to two patients over the course of a year. AdvanceMED deemed 23 of those services were not medically necessary and eventually referred the matter to law enforcement.

The government’s complaint alleged that Robinson violated the FCA by submitting claims to Medicare that sought payment for routine services to nursing home residents that were not reasonable or necessary, or were for a type or level of service that was not actually provided. The government specifically claimed that on certain days during the relevant period, Robinson claimed to examine such a high number of patients that either he could not possibly have provided such services under the circumstances, or such services were so cursory as to render them worthless. The government also alleged that Robinson knew or should have known of the falsity of these claims.

Motion for summary judgment. Robinson’s motion for summary judgment claimed that that the government: (1) could not produce any objective evidence that the services billed to Medicare were not medically necessary; (2) could not prove his knowledge or intent for purposes of the FCA based on the volume of patients seen in a given day; and (3) improperly attempted to extrapolate damages from a sample of 30 claims, which he claimed was insufficient for establishing a violation of the FCA.

Medical necessity. To prove that his services were not medically necessary, Robinson argued that the government was required to provide objective proof of falsity, which it could not do because each service required a subjective determination by a medical professional on a patient-by patient basis. The court found that even if the question of whether Robinson’s services were necessary involved some measure of a subjective determination on his part, if the government could show that Robinson violated his continuing duty to comply with the regulations on which payment is conditioned, or that he engaged in “upcoding” his services, such falsity was sufficient for an FCA claim.

The court also found that the government presented testimony from several witnesses whose deposition testimony contradicted Robinson’s assertion that all of the services he provided were reasonable and necessary. Moreover, the court noted that the government also submitted the results from the review performed by Medicare contractor AdvanceMed, PSC, which concluded that only one of the 24 examinations included in their review was medically necessary.

Knowledge element. Robinson also contended that the government’s FCA claims concerning two of the particularly high-volume examination days failed because the government could not prove they were false and because the government could not successfully prove the knowledge element as to Robinson for those claims.

With regards to falsity, the court took note of a government witness, Dr. Dickinson, who testified that he considered only 15 percent of the exams performed on those days to be of some medical value. Dickinson also testified that Robinson’s “examinations were extremely cursory, lacked basic and essential elements, and were consistent with Robinson’s practice of examining patients on a monthly basis without true medical need.” The court also relied on time studies by AdvanceMed, which concluded that Robinson billed for over 24 hours of examination time per day on numerous occasions, which is physically impossible to provide.

With regard to the element of knowledge, the court found that the FCA does not require the government to prove specific intent to defraud. Instead, the government could establish knowledge by showing “reckless disregard” for the truth or falsity of the claims. The court concluded that the government provided several facts from which a jury could infer that Robinson acted with reckless disregard or in deliberate ignorance of the truth or falsity of the billing codes he used for many of his claims.

Use of samples. Finally, Robinson contended that the government’s use of statistical samples in order to extrapolate liability and damages was improper as a matter of law for purposes of the FCA, and that the government was required to present individualized proof of each FCA element as to every single claim for Medicare payment at issue in this case. The government countered that statistical sampling is well recognized as an appropriate means for establishing liability in a FCA case, and that to require a claim-by-claim review of each of the 25,000 claims at issue here would be virtually impossible and would prevent prosecution of large-scale or complex FCA cases. The court agreed with the government, concluding that statistical sampling methods and extrapolation have been accepted in the Sixth Circuit and in other jurisdictions as reliable and acceptable evidence in determining facts related to FCA claims as well as other adjudicative facts.

Conclusion. The court concluded that there were triable issues of material fact and that Robinson failed to meet his burden for purposes of summary judgment.

The case is Civil No. 132-cv-27-GFVT.

Attorneys: Paul C. McCaffrey, U.S. Attorney's Office, for United States of America. Joseph D. Thompson (Thompson & Thompson) for Dr. Philip Robinson.

Companies: United States of America; Associates in Eye Care, P.S.C.; Soterion Medical Services; AdvanceMED PSC

MainStory: TopStory FCANews CMSNews AuditNews BillingNews CoPNews FraudNews LTCHNews PaymentNews ProgramIntegrityNews PartBNews KentuckyNews

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