The U.S. District Court for the District of Delaware declined to apply the 2009 False Claims Act (FCA) Amendments against a physician’s submitted false claims prior to 2009 because no false claims were paid by the government and application of the amendments would have caused retroactive effects counter to congressional intent, as reported by CCH® Medicare. False claims were alleged by the government against the physician under both 31 U.S.C. §3729(a)(1) and §3729(a)(2) for physician services that were not rendered when the physician billed for services at a higher billing code than was medically warranted or submitted documentation to support altered claims. Click title to read more…
According to the article by CCH® Medicare, “the government had admitted that of the physician’s 2,420 claims over a one year period: (1) 925 claims were down-coded by the intermediary to a lower reimbursement and were not false at the time of payment and (2) 1,495 claims were denied with no payments made by the intermediary.” Therefore, no false claims were actually paid or approved by the fiscal intermediary.
It is noteable that the physician evidently submitted 2,420 claims that were, at best, incorrectly coded, or worst case, fraudulent. If an average physician can bill for 23 visits per day, 4 days a week, 40 weeks per year, that’s 3,680 visits per year total, for all payers. The 2,420 claims billed in the above case might then represent all the bills submitted to CMS for a year from one physician, representing about 65% of billed claims. What is truly notable is that of those 2,420 claims, none were deemed correctly coded by the fiscal intermediary.
The article reports that the §3729(a)(2) claims were dismissed. “Eliminating the requirement to prove actual payment or approval under the amendments would thus increase the physician’s liability for past conduct, in turn, a retroactive effect,” according to the article.
However, a violation of §3729(a)(1) evidently did not require actual payment or approval by the government in order for liability to exist. The article goes on to say, “The physician submitted services at a higher billing code for payment by the intermediary. The intermediary’s request for payment from the government would be based on nonexistent or worthless goods, or charges based on exorbitant prices, causing economic harm to the government. Therefore, the physician was still liable for false claims under §3729(a)(1) that were paid by the government during the same time frame.”
The case referenced is: U.S. v. Aguillon, D. Del., June 24, 2009.
Source: CCH® Medicare
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