The whistleblowers alleged that the hospital was improperly billing split/shared visits as if patients were seen by a physician when they were only seen by a midlevel provider.


Right on the heels of our $325,000 False Claims Act settlement for improper billing for drug infusions, our firm has a second intervened settlement coming from the Middle District of Georgia.

The defendant hospital settled relators’ claims of improper evaluation and management billing for $56,144. In sum, the whistleblowers alleged that the hospital billed for inpatient evaluations performed by midlevel providers as if they had been partially performed by physicians, otherwise known as split/shared billing.

The relators, former employees in the hospital revenue cycle department, will receive a 20% relator’s share.

Today, we’ll take a look at some of the details of this case and answer common questions potential relators have for our False Claims Act attorneys.

The False Claims Act: High Risk, High Reward

An intervened settlement is an intervened settlement, so we are ultimately pleased with the outcome. However, this particular settlement comes with some interesting lessons about the high risk, high reward nature of the False Claims Act and the uncertainties that come with filing a qui tam case.

Moreover, we had another case in the same district, with similar claims, against a different provider, brought by a coding auditor. The government declined to intervene. So what went wrong?

As we are one of the most active False Claims Act law firms in the country with decades of combined experience in this field, we are pretty good at evaluating the merits of a potential qui tam case. Of course, we cannot guarantee a successful outcome. No attorney can, in any area of the law, and you should run from any who do.

But we understand what makes a good case, how the government is likely to evaluate the claims, and the potential pitfalls we may face along the way. We will do our best to advise you of these factors when you are determining whether to file a case or not.

How much is my case worth?

The question many of our clients have though is not just can we win, but how much is the case worth? What is it likely to settle for? Obviously, this is an important consideration. Whistleblowers do not always want to put themselves out there for a small recovery, nor do most qui tam law firms want to expend significant resources to pursue a limited amount of money.

We can give a rough estimate based on the factors known to us, but there are so many variables that it is impossible to give even an educated guess. For example, if it is a smaller practice, we may have some information generally about how much it bills overall.

The Centers for Medicare & Medicaid Services (CMS) publishes data from years past where we can see how much providers bill to Medicare. Our clients may have a rough estimate of the number of procedures performed, times the amount the government reimburses for those procedures, to approximate a damages number. This still assumes that all of the procedures are false and that the government agrees with our theory of liability.

But FCA cases are not as cut and dry as car accidents. First, we frequently run into issues with a defendant’s ability to pay a settlement. In other words, they may have defrauded the government out of millions, but they can only repay a smaller amount.

Another issue is that some of our claims may be barred by public disclosures or earlier-filed qui tam cases. These issues are unique to the False Claims Act and difficult to foresee, especially when False Claims Act cases are filed under seal.

Defendants Respond Appropriately to Whistleblower Concerns

In these cases, however, our defendant was a sizable hospital with significant resources. There were no public disclosures or other qui tam relators. Our clients were seemingly in the perfect position to calculate how much fraud was at issue in the case. In the revenue cycle department and as a coding auditor, respectively, they saw the claims go out to Medicare and the resulting payments come into the facilities.

In both cases, when they brought their concerns to management, they felt they were not being heard. In reality, they were heard loud and clear. The hospitals conducted internal audits to evaluate the situation. Where they found problems, they endeavored to educate the providers and even paid back certain claims that they considered problematic.

In other words, they engaged in the proper response to a whistleblower: they evaluated and addressed the whistleblower’s concerns.

By this time, the whistleblowers were out the door, aware only of the fraud and the chilly response they had received, unaware of what was happening with their former employer. Ultimately, while investigating our claims, one of the facilities discovered that it had not paid back the entire amount it should have, resulting in the small settlement.

Concerned about healthcare fraud in the workplace? Contact us.

Our clients were not wrong to bring these claims. In fact, their concerns were so legitimate that the hospitals quickly acted on them to keep them from becoming something more significant. Even if their cases were ultimately profitable, our clients are satisfied that their concerns were heard, validated, and corrected.

We commend all three whistleblowers for bringing their cases to the government, and we thank Assistant United States Attorney Todd Swanson for his work pursuing these issues. The United States Attorney’s Office for the Middle District of Georgia continues to show an unparalleled commitment to rooting out and stopping fraud of all sizes.

If you are aware of improper upcoding of medical procedures or billing for services not rendered, please contact our firm for a free evaluation of your potential claims.