Mintz Levin recently reviewed unsealed healthcare-related qui tam cases in early 2018, identifying a total of forty-six cases total unsealed in February and March 2018, with the government intervening in whole or in part for only 14% of those unsealed cases. This 14% intervention rate is identical to the intervention rate in December 2017 and January 2018, and is consistent with the overall intervention rate for the prior twelve months.
Home health and hospice providers were defendants in seven of the cases, while seven cases were brought against hospitals and hospital systems, and five cases were brought against pharmaceutical and biotech firms. Three of the unsealed cases named physicians or physician practice groups, while another three were brought against health insurers.
Two cases unsealed during this period are below, including reasons to keep an eye the case.
United States ex rel. Cleary v. Ioannides
The defendant is a dermatologist, Tim Ioannides, MD, d/b/a Treasure Coast Dermatology. The relator, a patient of the defendant, alleged that Ioannides billed and received payment from Medicare for a procedure he did not perform on her, a flap surgery, a procedure performed by plastic surgeons that involves moving a muscle and skin flap from a donor site to a recipient site without disconnecting the flap’s existing blood supply. The patient alleges that she actually saw him for removal of a potentially cancerous lesion from her forehead. Citing information obtained from the publicly available CMS Medicare database, the relator asserted that Ioannides was the country’s top biller for flap surgeries in 2012 and 2013. The relator charged that Ioannides violated the FCA by fraudulently billing Medicare for flap surgeries he had not performed.
This case is unique because not only did a patient serve as a relator instead of a former employee, but the biggest support for the relator’s claims seem to be the publicly-available data from the CMS Medicare database.
The United States intervened on December 4, 2017, and entered into a Settlement Agreement with the defendants on December 21, 2017. Pursuant to this Settlement Agreement, defendants were to pay $2,500,000 to the United States.
United States ex rel. Kelly v. Bromedicon, Inc.
In this case, the relator alleged that Bromedicon – a company that engages in providing IntraOperative Neurophysiological Monitoring (IOM) – billed Medicare for IOM services that were never provided. The relator claimed that Bromedicon provided IOM services without necessarily having QIPs available to perform all contracted monitoring services. Where a QIP was unable to monitor a procedure, Bromedicon purportedly had a QIP sign a fabricated interpretation report associated with the procedure that represented to Medicare that the IOM service was, in fact, provided to the patient. The relator further alleged that Bromedicon billed for more IOM services than were appropriate, or even possible, given scheduling and staffing constraints. The relator also asserted that Bromedicon inflated the time that QIPs spent performing IOM services and billed Medicare for the full – inflated – time. The relator claimed to have informed Bromedicon about these practices, but Bromedicon failed to report the relator’s findings to the Office of the Inspector General of the Department of Health and Human Services (“OIG”) or the Department of Justice (“DOJ”).
The United States intervened in the case on March 8, 2018, and the complaint was unsealed five days later on March 13, 2018. A subsequent sealed order was entered on April 26, and no further proceedings have occurred on the public record.
This case is important to watch for providers who consider offering remote patient services. With the rise of telemedicine, there is an increased risk of failure to provide remote services. Providers that provide services remotely need to develop good systems and practices to ensure accountability by remote providers, both to avoid fraud and to defend against fraud claims.