The United States Attorney’s Office for the District of Massachusetts recently settled a case against an otolaryngology practice and its management company involving improper billing for certain office visits and procedures.
Medicare and MassHealth —Massachusetts’s Medicaid program—permit billing for an office visit and certain medically necessary procedures such as nasal endoscopy or laryngoscopy performed on the same date of service, but only if, in conjunction with the procedure, the physician also performs and documents a significant and separately identifiable evaluation and management service. During the period between January 1, 2012 and February 1, 2020, the practice was alleged to have submitted claims for both office visits and procedures performed on the same date of service, but the providers did not document that significant and separately identifiable evaluation and management services were also provided. These billing improprieties resulted in a lawsuit filed by a whistleblower under the qui tam provisions of the False Claims Act, which allows private parties, known as relators, to bring suits on behalf of the government and to share in any recovery. The U.S. Attorney’s Office settled the case for $401,250.00, and 15% of that recovery will be paid to the relator.
Where billing improprieties are identified, providers need not act with a specific intent to defraud the government to potentially face serious adverse consequences, including but not limited to overpayment demands, discipline against their license, False Claims Act liability, and revocation of their federal healthcare program privileges. Audits and investigations most frequently arise from a payor’s own data mining practices, but this case is a reminder that whistleblowers (who may be anyone with knowledge of the allegedly improper practices, but they are often competitors or disgruntled current or former employees of a medical practice) are economically incentivized to report providers to the government. When the whistleblower is a current or former employee, the individual is often in a position to supply concrete evidence that the provider knowingly submitted false claims.
How Frier Levitt Can Help
Frier Levitt’s team of attorneys has significant experience assisting healthcare providers to navigate payor audits, and we have a track record of success in defending and appealing audit findings, which have included significant overpayment demands. For clients who have self-detected violative conduct, our attorneys can assess the merits of a formal self-disclosure and guide clients through that process. For clients who have become, or may become, the subject of criminal investigations, prosecutions, and civil or administrative investigations, our White Collar Defense and Government Investigations Practice Group has the experience to protect and defend our client’s rights, mitigate liability, and when appropriate, negotiate a non-criminal resolution. For more information, contact Frier Levitt to speak with an attorney.
