Healthcare Fraud Cases Targeting Vascular Surgeons and Vein Procedures
The Centers for Medicare and Medicaid Services (CMS) and U.S. Department of Justice (DOJ) have recently been targeting vascular surgeons in Medicare fraud cases. Allegations from patients, personnel, and other sources are leading to invasive investigations and charges under the False Claims Act.
Like all healthcare providers, vascular surgeons are subject to constant scrutiny from the Centers for Medicare and Medicaid Services (CMS). CMS and its fee-for-service auditors (i.e. Medicare Administrative Contractors (MACs)) regularly review vascular surgeons’ program billings, and suspect reimbursement requests are frequently met with allegations of healthcare fraud.
The Medicare billing rules for vascular surgery practice and non-surgical vein procedures are highly complex, but this is not an excuse for non-compliance. If anything, it places a greater onus on vascular surgery practices to ensure that their billing practices strictly adhere to Medicare’s reimbursement requirements. Those that fail to do so can face significant consequences, including civil or criminal fraud allegations under the False Claims Act (FCA).
Vascular Surgeons Must Prioritize Medicare Billing Compliance, and They Must Be Prepared to Defend Against Healthcare Fraud Allegations
Our firm provides full-service compliance and defense representation for vascular surgery practices and other healthcare providers nationwide. In the area of vascular surgery and non-surgical vein procedures, there are a number of specific compliance issues that require careful attention—and that can lead to significant risk exposure in the event of an investigation. While many Medicare fraud investigations result from CMS’s and its audit contractors’ automated review of providers’ billing data, whistleblower allegations from patients, personnel, and others can trigger potentially-dangerous inquiries as well.
One recent case in particular highlights the risks facing vascular surgery practices that do not have adequate compliance policies and procedures in place (Oberheiden P.C. did not represent the defendant in this case). The case, United States ex rel. Hawks v. Heart and Vascular Institute of Florida, arose out of a whistleblower complaint, and the vascular surgeon accused of fraud ultimately settled the allegations for a payment of $2.23 million to the federal government.
Federal Healthcare Fraud Allegations Against Vascular Surgeons Pertaining to Vein Procedures
Early in its decision, the court provides a nice overview of the general regulatory regime governing Medicare billings for vascular surgery practices. As the court explains:
“CMS issues national coverage determinations (‘NCDs’) that specify whether certain items, services, procedures or technologies are ‘reasonable and necessary’ under [federal law]. In the absence of or in addition to a NCD, CMS’s regional fiscal intermediaries known as Medicare Administrative Contractors (‘MACS’) are responsible for creating and implementing Local Coverage Determinations (‘LCDs’). A LCD, as defined by the Social Security Act, ‘means a determination by a fiscal intermediary or a carrier under part A or part B, as applicable, respecting whether or not a particular item or service is covered on an intermediary or carrier – wide basis under such parts, in accordance with [federal law].'”
As you can see, Medicare compliance quickly gets complicated, and this brief summary only scratches the surface of the statutory and regulatory issues that can lead to trouble for practices that fail to comply.
More specifically, vascular surgeons can face a number of specific allegations of fraud under the FCA. Each of these allegations can potentially lead to civil or criminal charges (depending on whether there is evidence of knowing fraud or non-compliance), and each requires its own unique defense strategy that is custom-tailored to the circumstances at hand. Examples of allegations the U.S. Department of Justice (DOJ) is asserting in fraud cases against vascular surgery practices include:
1. Billing for Medically-Unnecessary Services
Medicare only provides reimbursement coverage for services that qualify as “medically necessary” within the applicable NCDs and LCDs. While Medicare’s coverage for vascular surgery and non-surgical vein procedures is still very broad, it does not cover all forms of treatment under all circumstances.
For example, Medicare does not cover the unnecessary performance of ultrasounds, endovenous radiofrequency ablations (RFA), high ligation and saphenous vein strippings (HL/S), and other treatments. Securing reimbursement for these treatments requires documentation of medical necessity; and, absent such documentation, requests for reimbursement will be deemed fraudulent under the FCA. Depending on the particular treatment performed, establishing adequate substantiation of medical necessity for purposes of billing Medicare for reimbursement may require documentation of:
- An appropriate clinical severity score
- Saphenous vein reflux
- Superficial phlebitis
- Thickening and discoloration of the veins
- Variceal hemorrhage
- Evidence of attempted more-conservative therapy procedures (i.e. nonsurgical management of varicose veins) prior to performing and billing for more-complex and more-costly forms of treatment
2. Billing Medicare for Non-Reimbursable Services
Submitting Medicare reimbursement requests for non-reimbursable services is another form of fraud that is commonly alleged in federal investigations targeting vascular surgeons. In addition to billing for medically-unnecessary services, this includes billing for services that are not performed by appropriately trained providers. Ensuring that appropriate individuals provide treatment for services that will be submitted for Medicare reimbursement is an essential component of a comprehensive healthcare compliance program, and compliance program deficiencies will often be viewed as red flags for fraud.
3. Falsifying Physical Examination Results and Other Patient Records
Falsifying physical examination results (including fabricating them entirely) can also lead to civil or criminal fraud charges under the FCA (in addition to the healthcare fraud statute, 18 U.S.C. Section 1347, and other federal laws). The same is true of falsifying other types of patient records. In particular, vascular surgeons must be particularly cautious to maintain contemporaneous and accurate patient records in order to avoid liability for allegations of:
- Falsifying notes to fraudulently substantiate evaluation and management (E/M) visits
- Falsifying notes to fraudulently establish medical necessity for radiofrequency ablation and other treatments
Frequently, cases involving allegations of falsifying patient records will be criminal in nature, as taking inaccurate notes can seem to inherently involve an element of intent. However, there are many potential defenses available, and our attorneys have had success defending surgeons and other healthcare providers against a broad range of criminal allegations.
4. Upcoding in Order to Obtain Higher Reimbursement Rates
Upcoding is a common allegation in healthcare fraud investigations. This involves submitting an incorrect code in order to obtain a higher reimbursement rate than the one prescribed under the Medicare billing guidelines. These can either involve allegations of intentional fraud or inadvertent billing mistakes resulting from human error, and the potential ramifications will depend on whether the DOJ decides to pursue civil or criminal charges.
5. Improper Use of CPT Codes 99204, 99213, and 99214
Improper use of CPT codes can lead to healthcare fraud allegations as well. For example, in the case referenced above, the vascular surgeon targeted in the whistleblower’s complaint was accused of making improper use of CPT Codes 99204, 99213, and 99214. As explained by the court:
- CPT Code 99204 is intended, “‘for the evaluation and management of a new patient, which requires these 3 key components: a comprehensive history; a comprehensive examination; [and,] medical decision making of moderate complexity.’ . . . Typically CPT Code 99204 is billed when the presenting problem(s) are of moderate to high severity and 45 minutes are spent face-to-face with the patient and/or family.”
- CPT Code 99213 is intended, “‘for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: an expanded problem focused history; an expanded problem focused examination; [and,] medical decision making of low complexity.’ . . . Typically CPT Code 99213 is billed when the presenting problem(s) are of low to moderate severity and 15 minutes are spent face-to-face with the patient and/or family.”
- CPT Code 99214 is intended, “‘for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: a detailed history; a detailed examination; [and,] medical decision making of moderate complexity.’ . . . Typically CPT Code 99214 is billed when the presenting problem(s) are of moderate to high severity and 25 minutes are spent face-to-face with the patient and/or family.”
Here, too, allegations can be either civil or criminal in nature, and avoiding federal penalties will require a strategic defense that takes the specific allegations into account. Defending against allegations of civil and criminal healthcare fraud are very different propositions, and vascular surgeons need to know what specific allegations are on the table before they can defend themselves effectively.
While these are some of the most-common allegations used specifically to target vascular surgeons, this list is by no means exhaustive of the reasons why CMS and the DOJ pursue audits and investigations of vascular surgery practices. Anti-Kickback Statue violations, Stark Law violations, and various other allegations are common as well, and fully avoiding liability requires a comprehensive defense strategy that takes into consideration all of the allegations at hand.
Contact the Federal Healthcare Fraud Defense Lawyers at Oberheiden P.C.
Are you at risk for being charged with civil or criminal healthcare fraud? To discuss your situation with a senior federal healthcare fraud defense lawyer at Oberheiden P.C. in confidence, call 888-680-1745 or request a complimentary case assessment online now.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.