Dear Friend,
Certifying to Medicare that you’re here when you’re really there is a ticket to nowhere, or maybe to jail.
That was the subject of Monday's blog post, Beware of Bogus Medicare and Medicaid Billings. You can follow the link to read the post online, or just keep reading.
Quantum mechanics suggests that particles can exist in two locations at the same time -- physicians, not so much, although, oddly, it is sometimes possible (for example, properly billing for a true locum tenens physician). However, sometimes isn’t most of the time, and that’s the catch.
Azhar “Pasha” Shakeel, M.D. is an Oklahoma physician and the owner of several practice entities, Muskogee Medical Care, PLLC, Urgent Care of Muskogee, PLLC, and Urgent Care of Checotah, PLLC.
Earlier this month, Dr. Shakeel agreed to pay the U.S. Government and the State of Oklahoma a combined $619,994 to settle a False Claims Act lawsuit stemming from allegations that he billed Medicare and other federal healthcare programs, as well as Soonercare, Oklahoma’s Medicaid program, for reimbursement under CPT codes for Evaluation and Management (“E/M Codes”) that require face-to-face interaction between physician and patient.
The propriety of the use of a particular E/M Code depends upon the time spent by the physician with the patient, the complexity of the medical history, the type of physical examination, and the medical decision-making involved. In essence, the more complex a visit, the greater the reimbursement. Additionally, and very importantly, other than in limited circumstances, services rendered by clinical staff members cannot be billed as E/M visits.
In a False Claims Act whistleblower lawsuit originally brought by a practice employee, the government alleged that during the relevant time period, March 2017 through at least October 2023, Dr. Shakeel spent approximately 177 days away from his clinics traveling to foreign countries and within the U.S.
However, during that same time period, the government alleged that it was Dr. Shakeel’s policy to bill both federal healthcare programs and Medicaid for E/M visits (thousands of them) that he did not face-to-face provide, as required for the use of those codes, and that he knowingly submitted, or caused to be submitted, those claims for reimbursement.
Whistleblower lawsuits, including the one against Dr. Shakeel and his related entities, are civil suits. In choosing to enter into a civil settlement, Dr. Shakeel, for himself and his entities, resolved those civil claims without any finding by the Court that he or his practices engaged in any impropriety.
At least as of the date of this writing, the settlement agreement has not been made public. However, most False Claims Act civil settlements do not include the resolution of potential criminal charges, and only time will tell whether the U.S. Government or the State of Oklahoma will bring criminal charges related to the same set of alleged facts.
Some Timely Tips For You
No matter what quantum physics might suppose, the government will never believe that you can be camping in Canada and billing for E/M services in Checotah, or even Cleveland, at the same time. So be completely aware of what’s required for the use of specific billing codes. Make sure your staff is educated.
Even though you are too smart and too honest to try to pull off anything of the sort, the other physicians in your group might not be, especially if your compensation plan pays them based on productivity. Claims made by your group as a result of your physicians’ claimed services can get your group into the same mess.
Note that lack of specific intent to defraud is not a defense against violations of the federal False Claims Act.
Recognize that False Claims Act cases are almost always initiated by whistleblowers, who are rewarded by bounties based on the amount the government collects, and that whistleblowers almost always come from within your business entity. Be careful not to create a whistleblower.
Have both electronic and manual processes, double-checks, and internal reviews in place to prevent erroneous claims and to discover any errors before the government (or a whistleblower) does. Use counsel to coordinate regular audits. If you do discover irregularities, the clock will be ticking on the return of overpayments to avoid another significant issue – so-called “reverse” false claims, which is a conundrum unto itself.
