As anyone involved in healthcare during the Covid pandemic can attest, there was an enormous amount of confusion about what providers could and could not do, and how they should do it.
Thousands of Covid testing centers opened seemingly overnight throughout the country, by governments, physicians’ offices, pharmacies, and urgent care centers.
CRH Healthcare, doing business in Georgia as Peachtree Immediate Care, opened its own set of Covid testing locations, including in-office, curbside, and drive-thru testing. Our clients were a physician and a nurse practitioner who worked at these sites, providing testing to Georgia residents.
This False Claims Act settlement resolves allegations by our whistleblowers that CRH overbilled for its Covid testing services by seeking a higher level of reimbursement than to which it was entitled.
The $1.6 million settlement does not include an admission of liability and reflects a compromise as to what the Government thought should have been billed what CRH thought should have been billed.
Our whistleblower clients will receive a 20% relators’ share for reporting their concerns and bringing this False Claims Act case.
This is Bracker & Marcus’s tenth intervened False Claims Act settlement since the start of 2022, totaling more than $27 million in recoveries for the Government.
Billing and Reimbursement for Office Visits Depend on the Length and Complexity of the Visit
When a patient goes to a doctor’s office and meets with the physician, that visit is billed under an Evaluation and Management code, also known as E/M. There are five different “levels” of E/M coding so that more complicated matters that require more of the doctor’s time result in higher reimbursement. The higher the level, the higher the reimbursement. A Level 2 visit with a doctor to diagnose a common cold would not pay as much as a Level 5 visit with a cardiologist to discuss a heart condition.
In 2021, the guidelines for billing E/M codes were changed. Without getting into the boring details of how E/M used to be billed, now codes could be determined by the time spent on the visit or the complexity of medical decision-making, or MDM.
The time-based billing is pretty straightforward: if the visit, including time documenting that visit, falls within a certain range of minutes, it is billed at the corresponding level of E/M code.
The MDM-based billing is a little more complicated but still fairly objective. You look at the number and complexity of the problems, the amount and/or complexity of the data that is reviewed, and the risk of complications and/or mortality of the patient. Depending on how high you score in each category, that corresponds to an E/M code.
CRH Arguably Over-Billed its Covid Testing
Covid was a novel and devastating illness, but by 2021, when these new guidelines went into place, there was some general consensus. For example, Covid was known to bring about certain symptoms, and so when a patient had those symptoms, the likelihood they had Covid went up.
We also had a better understanding of how Covid was spread, and so if a patient was recently in contact with someone who had Covid, they were at greater risk of having Covid.
If the patient was both in contact with a Covid-positive individual and also had symptoms, it was exceedingly likely they had the disease as well.
With a better understanding of how Covid spread and the likelihood of having the disease came increased efficiency in testing, especially as rapid tests brought results in a matter of minutes. Treatment advice often became standardized as well.
High billing for low-risk, low-complexity, low-time cases
What primarily concerned our clients was that CRH was using the morbidity of Covid to bill high levels of E/M just because they had symptoms or had been exposed to someone with Covid, even when the patient tested negative for the virus and so were sent on their way in a matter of minutes.
The whistleblowers objected to billing high levels of service for such low-risk, low-complexity, low-time patients, and brought a False Claims Act lawsuit alleging that this overbilling resulted in Medicare and the federal government overpaying for Covid testing.
Moreover, they were told to correct any attempts they might have made to bill the codes they thought were more appropriate, even though it is usually the provider’s decision how to bill their services.
Success in E/M Upcoding Cases is Rare
Our law firm probably hears as many reports of E/M overbilling as any other claim. It is very easy and tempting to provide one level of service but bill at a higher reimbursing level of service.
While this is certainly fraud, this type of claim is very difficult and rarely successful. That is because not every office visit is the same.
For example, a primary care practice might see a patient with the flu, then a patient with high cholesterol, then a patient with bad headaches, and so on. Should those visits be billed at the highest levels? Probably not. But then a determination has to be made on a case-by-case basis as to what level those visits should have been billed.
Even if the doctor always bills every visit as a Level 4 visit, some of the visits were probably correctly billed. Others maybe should have been billed at the lowest level, or somewhere in between. And the provider is going to have their own billing expert disputing your findings.
What made this case unusual was that all of the services were exactly the same—Covid testing. Depending on a set of conditions (exposure, symptoms, test result), the same code was always applied.
This allowed the Government to make a sweeping allegation that, for example, every Covid test billed as a Level 4 should have been billed as a Level 3 or a Level 2, and so damages are the difference in reimbursement between those codes. There was no need to review individual files because the code told the whole story as to what any patient presented with and how they were diagnosed.
Teamwork Makes the Dream Work
This case also had an exceptional level of teamwork between lawyers and the Government. We brought this case with our colleagues at Brown, LLC, a New Jersey-based whistleblower law firm, due to some good reputations, good relationships, and good luck.
We had been approached by one of the relators, and we were discussing the case with him when Brown, LLC called us. It wanted us to be their local counsel (a law firm located in the district where the case is being filed) for a case they were preparing to file.
We quickly realized that their case was identical to our case. We proposed combining efforts—and whistleblowers—and in so doing made the case that much stronger. Had they called another law firm about being local counsel (as if), or had they decided to file their case without our whistleblower, we might have ended up working against one another instead.
This turned out to be especially fortuitous because the Government needed a lot of documents reviewed in a hurry. They turned to Relator’s counsel to assist, and having two firms instead of just one enabled us to review 11,500 documents in a month’s time.
We are Grateful to our Whistleblowers and the Department of Justice
Our False Claims Act attorneys are thankful that our clients trusted us with their cases. We also thank Brown, LLC for not only approaching us to be local counsel but for agreeing to combine resources and whistleblowers to everyone’s benefit.
We congratulate Assistant United States Attorney Andres Sandoval and his team at the Northern District of Georgia USAO for a successful resolution. A copy of the NDGA USAO’s press release can be found here.