Select Page

I am a lawyer representing whistleblowers, and I’m on a series of
blog entries about why businesses are undermining their ability to compete
by ignoring – even fighting — the False Claims Act.

Take, for example, doctors and physician practices. In order to bill Medicare
and Medicaid for their work, they have to choose a code level for each
procedure they perform. A level 2 procedure is not particularly complicated
and takes a relatively short amount of time, 10 minutes in the case of
a doctor’s office visit. A level 5 procedure, on the other hand,
is supposed to be a face-to-face encounter between the doctor and the
patient that lasts at least 40 minutes.

An honest doctor will recognize that he can only work safely for 8 hours
a day, maybe 10 or 12 if he pushes it. If the doctor works 8 hours a day
– and bills all of that, without any breaks at all – then
an honest doctor has limitations. The doctor can only bill 12 level five
office visits a day, or 48 level 2 office visits, a day. And that’s
it. Even if the doctor worked around the clock every day — not a
realistic option, but for sake of argument, let’s assume it –
he still can only bill 36 level 5 visits or 144 level 2 visits.

That is – that’s what an honest physician could do.

And then there was
Dr. Angel S. Martin, of Newton, Iowa, who apparently had more hours in his day than the rest of us do.

Martin was a general surgeon, and the Government discovered that on 53
different days, Martin had billed Medicare for medical services that would
have required him to work more than 24 hours in the day.

What Dr. Martin was doing was upcoding. He was treating patients who did
not have complicated medical problems that required significant time from
him, but he was billing as if he were treating much more serious medical
problems and spending much longer with the patient than he really was.
In 2010, Dr. Martin was convicted of health care fraud and went to jail,
albeit for only 6 months. He also had to give up his medical license.

But Dr. Martin was the exception to the rule. Most doctors who cheat get
away with it. Very few are brought to justice.

And in the meantime, the cheating and fraud damages the entire medical/Medicare
reimbursement system. When Medicare starts to pay too much for a given
procedure or code, it starts trying to find ways to cut costs. Medicare
may lower the reimbursement amount, or refuse to cover certain procedures, etc.

The fraud also can keep individual doctors or physician practices from
getting jobs or business opportunities in the market place. When a physician’s
practice wants to join a larger system, or when a doctor wants to join
a new group practice, the honest physician suddenly looks unproductive
and is less marketable. Which is more valuable: the anesthesiology practice
consisting of doctors who manage to bill 24 level 5 procedures a day,
or the practice of anesthesiologists who bill 8 level 5 procedures a day?
Who is more likely to get a job: the doctor who used upcoding to bring
in $800,000 a year, or the doctor who strictly followed the coding rules
and bought in only $500,000 a year?

Given the consequences, to the medical practice and system as well as to
individual doctors or physician group practices, every doctor and physician
group ought to be embracing the False Claims Act. Doctors who care about
their profession, even about their own practices, should be coming forward
with information about fraud in the system.

It just makes sense.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.