A Maryland doctor was convicted of five counts of healthcare fraud for submitting more than $15 million in false and fraudulent claims to Medicare and other insurers for patients who received COVID-19 tests at medical facilities that he operated. Ron Elfenbein, M.D., was the first doctor convicted at trial by the United States Department of Justice (DOJ) for health care fraud in billing for office visits in connection with COVID-19 tests.
According to the DOJ, Elfenbein owned and operated Drs ERgent Care, LLC, dba First Call Medical Center and Chesapeake ERgent Care. Drs ERgent Care operated drive-through COVID-19 testing sites throughout Anne Arunel and Price George’s Counties in Maryland. The DOJ further alleged that Elfenbein instructed employees of his companies to bill for high-level evaluation and management visits in addition to billing for the COVID-19 test. However, the DOJ alleges that the visits were not provided to patients as billed and that Elfenbein told employees that patients were there “for one reason only – to be tested,” not “to solve complex medical issues” and that it was “simple and straightforward.”
Many of the patients that visited Elfenbein’s testing sites were asymptomatic, were getting tested for employment requirements, or were getting tested for travel requirements.
Based on Elfenbein’s conviction, he faced up to 10 years in prison on each of the five counts of health care fraud. However, Elfenbein filed a motion for judgment of acquittal, which was granted by Judge James K. Bredar in December 2023. While motions for acquittal are commonly filed after a conviction, they are not commonly granted.
In his decision, Judge Bredar noted that the government did not meet the necessary bar to convict Elfenbein, saying there was not enough evidence to conclude beyond a reasonable doubt that Elfenbein was improperly upcoding tests and visits, thereby improperly billing Medicare and other insurers for reimbursement he was not owed.
Judge Bredar seemingly granted the motion for acquittal as E/M CPT codes are imprecise (intentionally so, as it allows physicians latitude in making judgment calls in their medical decision-making). He noted that “imprecision does not necessarily integrate well with the clear notice and due process guarantees of our criminal law” and that “where the relevant CPT codes and related definitions are ambiguous and subject to multiple interpretations, problems clearly arise.”
“In this context, it is not a criminal offense to take advantage of loose definitions or an explicit loophole any more than is it to do so when citizens prepare their tax returns,” said Bredar in the opinion. “Citizens, including healthcare providers, cannot be held to criminal account for doing only what a technical regulation is reasonably read to permit, even if to do so would seem to benefit them excessively.”
While this case is not necessarily going to set a new precedent for post-trial acquittals, it is important to note that hanging a hat on legitimate (and perhaps intended) ambiguities in the regulations are not always the strongest way for the government to prosecute a claim.