Medical necessity is still a a dominant theme in certain health care prosecutions and investigations. An integral part of any pure medical necessity prosecution is also extrapolation. To support extrapolation, the Government, as part of their case in chief, will use both an auditor or forensic accountant from the law enforcement agency assigned to the prosecution and, in some cases, a statistician to demonstrate that, based on a sample of “representative” claims, the physician or health care provider was submitting claims for services that were not reasonable and medically necessary, and therefore was, according to the Government, committing fraud.
Frequently, the case against a physician premised on medical necessity may boil down to the CPT codes (Current Procedural Terminology codes) that the physician used to bill and how often he or she used those codes compared to their peers. To this end, anticipate the use of data and comparisons to other physicians practicing in the same specialty (e.g. pain physicians, dermatologists, cardiologists) as part of the Government’s case. Much of this data is derived from the CMS data (which is public information) and assigns a standard deviation to the particular provider for a particular procedure or CPT code. Also expect experts from the same specialty testifying on behalf of the Government as to what they would or would not have done or how they would or would not have performed a procedure. In the trifecta of cardiologist prosecutions (US v. Paulus, US v. McLean, and US v. Persaud) and a recent ophthalmologist case (US v. Melgen), in addition to many other cases, the Government has sought to elicit testimony from experts on these issues to undermine any defense that the physician was justified in performing the disputed services.
Further, when putting on a full blown defense, it is important to remember that the health care fraud statute (and the False Claims Act) are narrow statutes. In fact, Congress stated long ago when they passed the health care fraud statute, that the statute is “not intended to penalize a person who exercises a health care treatment choice or makes a medical or health care judgment in good faith simply because there is a difference of opinion regarding the form of diagnosis or treatment.”
It is therefore critical that, if you are defending a provider accused of providing medically unnecessary services, you are also familiar with extrapolation, CPT code comparisons, CMS data, and how the Government is using experts and mining data to ultimately demonstrate fraud in medical necessity prosecutions.
Author: Andrew Feldman
Mr. Feldman represents professionals, corporations, health care providers, and health care marketers in government investigations and prosecutions throughout the United States. Mr. Feldman works tirelessly for his clients from the time an investigation begins until the time a jury renders a verdict.
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