In recent years, government agencies have increasingly scrutinized the billing practices of mental health providers alleging violation of the False Claims Act (“FCA”) and basing such allegations on the so-called “impossible day” scenario. As recently as July 2024, two mental healthcare providers settle for over $1 million to resolve FCA allegations related to claims that non-physician personal rendered, but which were billed under the physician names.[1]
The impossible day scenario refers to situations where the provider submits bills for total services that, taken in the aggregate, could not feasibly have been performed in a single day. For instance, if a physician submits CPT codes associated with a given amount of office time and, taken in the aggregate, the amount of time billed for is significantly greater than a reasonably standard workday or, in some instances, greater than twenty-four hours’ worth of work, this could trigger an investigation and scrutiny under the FCA.
The impossible day scenario also occurs when both the physician and the non-physician personnel bill under the physician’s name for more time than is possible to work in a single day or in instances when the non-physician personnel bills for services under the physician’s name while the physician is out of the country or out of state. While the impossible day scenario is not a novel theory nor is it unique to mental health providers, there does appear to be increased FCA scrutiny particularly as it relates to an impossible day for mental health providers. Accordingly, it is imperative that a practice focus on detailed record keeping and appropriate billing practices preemptively in order to avoid an impossible day scenario or at the very least to provide a strong defense once the allegations have been made.
The impossible day scenario highlights the complexities of billing practices for mental health providers, particularly under the scrutiny of government enforcement actions. By understanding the implications of these scenarios and adhering to best practices for documentation and compliance with the help of knowledgeable attorneys, mental health providers can better navigate potential legal challenges. Reach out to Frier Levitt today to discuss a potential billing related investigation you may be facing or in order to proactively address any potential compliance issues with billing practices.
[1] https://www.justice.gov/usao-sdtx/pr/mental-health-services-providers-pay-over-million-settle-false-claims-liability
