Physician Billing: Defending the “Impossible Day” Case

A Newark, New Jersey, pediatrician was recently sentenced to 3 years in state prison for submitting fraudulent claims to the Medicaid program. At trial, the federal government focused on the fact that the physician’s bills alleged she worked for more than 24 hours in a day. This is yet another example of the government’s increased efforts at targeting physicians who work an “impossible day.” 

Federal prosecutors rely upon an aggregation of the “typical times” in the AMA’s CPT Manual that are associated with different codes to prove fraud under the “impossible day” theory. The theory is that it is either impossible to render that amount of medical services in a given day or – if the services were rendered – that either the service was upcoded or the physician performed such a perfunctory medical service that the physician failed to meet the requirements of the code billed.

Impossible day cases arise when a busy physician who bills primarily Evaluation and Management (E&M) codes sees a large volume of patients in a day. The government adds up the various typical times of each individual visit and if the number appears to be unreasonable, an investigation is initiated.

The flaw with this theory is that generally the typical times associated with the codes are not required to bill the code, particularly in the case of E&M codes. In fact, the CPT Manual has multiple references within the E&M guidelines that repeatedly reflect that time is not a requirement.

Even when the government concedes that typical times are not a legal requirement, it may still argue that they represent a good benchmark, and a substantial deviation from that benchmark indicates fraud.

The “benchmark” argument is also flawed in that typical times represent a range of times that are utilized to assist the physician in selecting the appropriate level of code when more than 50% of the visit consists of coordination of care and counseling. In reality this often is not the case because most medical visits are not time based. Per the CPT Manual, typical times represent an average within a range of times. The problem is the range is not published, no one seems to know what it is and no one knows what the high end or low end of the range is. They are merely guidelines and cannot be applied across the board to an individual physician.

While the allegations and data the government approaches a physician with is typically daunting in an impossible day case, these cases are defensible. The government’s case in an impossible day scenario is primarily, if not totally, based on indirect evidence and adverse inferences. It is extremely important to attack the government’s compilation, comparison and analysis of data as unsound and unfair. Contact Frier Levitt to speak to an attorney.

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