Alabama A & M University False Claims Act Case Study

Case Study:

A physician group practice performs arthroscopic procedures. Many of these procedures are minor and are performed by physician assistants. Medicare pays a higher rate for surgeries performed by physicians than by physician assistants. However, the applicable Medicare regulation provides that “if the physician assistant is supervised by the physician, then the surgery may be billed as if it were performed by the physician.”

When a surgery was performed by a physician assistant, the policy of the group practice was for a physician to be present in the office – and available to consult — but not in the same room as the physician assistant. The group practice nevertheless treated all of the surgeries performed by its physician assistants, for billing purposes, as if they had been performed by its physicians.

At trial, the evidence indicates that the group practice decided to bill this way based on the following:

1. An informal conversation between one of the group practice’s employees and her friend, who was a lawyer but not an expert in health care, who opined that the term “supervised” was broad enough to encompass a physician being present anywhere on the premises; and
2. A survey of five other group practices, four of whom also interpreted the regulation in this fashion and treated physician assistant surgeries as having been performed by a physician so long as a physician was present somewhere in the building.

The evidence at trial also revealed, however, that another employee of the group practice had heard secondhand – the employee could not recall from whom – that HHS’s interpretation of the regulation was that a physician assistant is supervised by a physician only if the physician is present in the same room.

You determine that the rule does, in fact, require the physician to be present in the same room, and thus the group practice’s claims were false. You now have to decide whether the group practice acted knowingly and is therefore liable under the False Claims Act.

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