2024 has already proven to be audit heavy. It seems that the repercussions of COVID are beginning to appear. Actions related to COVID, such as audits of dates of service (“DOS”) during COVID are commonplace now. Whistleblower actions also seem to be on the rise.

We have even seen a few qui tam actions going forward even though the government did not intervene, which is rare, to say the least. In most cases, if the government does not intervene, usually, the whistleblower dismisses the case. The last qui tam action that I was worried was going to forward even though the government refused to intervene was a cardiologist practice. The number one reason that these super educated cardiologists were even on the metaphoric chopping block was because English was not the first language of any doctor employed by the practice. Imagine how smart you have to be to not only become a doctor, but to become a doctor in a country where you do not even speak the native language – to me – this is remarkable. The facility at issue employed 9 remarkable cardiologists, and, no surprise, the practice was the best and most desirable in the area. Plus, the practice was undergoing a possible acquisition by a nearby hospital, which was in the best interest of the doctors. The cardiologists were less than stellar business owners, but excellent doctors.

What happened was one of the senior cardiologists wrote an email that the whistleblower and the government, at first, took as a smoking gun. The doctor disseminated the email to everyone. Including the staff. This is what it said,

“…going forward, bill everything at a 99215; no matter what.”

The Feds believed that they had a smoking gun.  Wouldn’t you?

99215 is Procedure Code 99215: Evaluation and Management Description for 40 minutes.

What the good doctor meant was this…COVID is upon us.  Remember that? The times were so crazy and hectic in the health care world, which is why I am infuriated that the government is conducting audits of DOS during COVID. Sorry. Can we not give a “GET OUT OF JAIL FREE card” to all those providers who continued services in the midst of COVID?

What the misunderstood cardiologist meant by saying, “bill everything at a 99215 no matter what” was … we are in midst of COVID; this is worldwide pandemic. We are specialists. We are cardiologists. Anytime someone comes to us, it’s at least a 99214. During COVID, OF COURSE EVERY VISIT IS A 99215.

But that’s not what the government read. Which is why defense lawyers exist.

In this instance, I was afraid that the whistleblower would go forward regardless what the government decided. But I was wrong. Apparently, we were so convincing to the government that the government actually demanded the whistleblower to dismiss.

I did not know this until this case, which was only about 7 years ago, that in rare circumstances, the government can force a whistleblower to dismiss even if the whistleblower is gung ho.

In this case, the whistleblower was “gung ho.” But the government was adamant that there was no fraud since the “smoking gun” was, in reality, neither a gun nor was it smoking.

Since January of 2021, CMS and OIG accept anonymous and confidential whistleblower disclosures. Can you imagine your competitor accusing you of fraud in order to get your consumers? It happens. In fact, next blog, I will tell you a story of two specialized dental practices in Minnesota. And how one practice purposefully and nefariously accuses the other of fraud. That accusation resulted in a two-year reimbursement suspension for the accused practice which resulted in the business closing. The accuser facility is thriving and opened up three new offices. Is this really what are fraud laws are intended to do. The laws are being used to put competitors out of business, not finding fraud.