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Case to proceed against clinic for alleged false billing for tonography
From international law firm Arnold & Porter LLP comes a timely column that provides views on current regulatory and legislative topics that weigh on the minds of today’s physicians and health care executives.
A federal court in Texas has ruled that a complaint against a Houston-based eye clinic sufficiently alleged fraudulent Medicare billing for tonography tests — when only tonometry tests were performed. In particular, a whistleblower filed a case under the False Claims Act in February 2012 against Outreach Diagnostic Clinic and Outreach Eyecare, along with the owner and medical director, alleging this fraudulent scheme. As is its right under the False Claims Act, the federal government joined the case in June 2015 and alleged that Outreach submitted claims for Medicare reimbursement for tonography tests that it “never performed” for its patients. It was alleged that “[t]he Defendants never owned, possessed, or operated a tonograph or recording impression tonometer” that would make claims for tonography tests possible.
Matthew T. Fornataro
Regardless of the outcome, there are two significant lessons from this case. First, while the government’s case against Outreach, if proven, would demonstrate a willful violation of law by billing for specialized services that were not performed, it does serve as a helpful reminder that careful and accurate coding is essential when billing for federal health care program services. It is important to keep in mind, for example, that False Claims Act liability may be established not only by a “knowing” violation of law, as is alleged against Outreach, but also by “deliberate ignorance” or “reckless disregard” of the truth or falsity of claims submitted to the federal government.
Allison W. Shuren
Second, and perhaps more important, is the fact that Outreach is an eye care practice that is the subject of a whistleblower lawsuit. During the past several years, we have seen whistleblower complaints filed against large drug and device companies with tens of millions, if not hundreds of millions of dollars at stake. The Outreach case, targeted to an eye care practice with relatively modest dollars at issue, should remind us that no practice is immune from the possibility of being targeted by a whistleblower under the False Claims Act. Indeed, given the significant rewards available to successful whistleblowers — often millions of dollars — it is no surprise that the rate of False Claims Act allegations has continued unabated.
Matthew T. Fornataro, JD, an associate at Arnold & Porter LLP, can be reached at matthew.fornataro@aporter.com.
Allison W. Shuren, MSN, JD, a partner at Arnold & Porter LLP, can be reached at allison.shuren@aporter.com.
Editor’s Note: This article has been changed from a previous version that identified Outreach as an optometric practice. It is an eye care practice, employing both ophthalmologists and optometrists.