By Rebecca Mayo, J.D.
A court found that overwhelming evidence that patient records did not support a cancer diagnosis, was material to whether a claim for cancer treatment was a violation of the False Claims Act.
A court refused to dismiss claims against an oncologist who continued to falsely diagnose and treat patients for cancer despite numerous attempted interventions by his employer medical clinic and internal audits that found his practice inconsistent with acceptable oncologist standards. The oncologist argued that the diagnosis was immaterial to whether the claims presented to Medicare were false. The court found that evidence that patients were falsely diagnosed was clearly material to whether the government would have paid for such treatments (US ex rel. Tra v. Fresen, July 31, 2019, Broomes, J.).
False claims. While working at a medical clinic, a clinical oncology pharmacist began to notice problems with an oncologists’s prescribing practices, including the use a drug for prostate cancer, which was not an indication of that drug. The clinic held a meeting relating to concerns about the prescribing practices of the oncologist and issued a mandate requiring the oncologist to become compliance with Medicare rules, however the oncologist continued to fail to comply. An outside consultant was hired to perform chart reviews of oncology patients. In two separate reviews, the consultant found all or most of the treatments prescribed by the oncologist were inappropriate and not in compliance with compendium guidelines. A number of patients were found to have been diagnosed with various forms of cancer and undergone treatment when tests did not support the diagnosis that the patients ever had cancer.
The oncologist was fined by the clinic board, however the board did not report the issues to Medicare or repay any reimbursement for improper payments. A third audit found the oncologists practice was not consistent with acceptable oncologist standards and that he was putting the clinic at risk for billing and medical necessity issues. The oncologist was forced to resign, however the clinic still took no action to investigate previous claims to Medicare or to report any overpayment to Medicare. The relator filed a claim under the false claims act and the government intervened.
Decision. The court found that the high number of prescriptions at issue, the fact that the treatments of the patients violated the compendium and the clinic’s guidelines, that there were other clinic providers who objected to the practice, and that multiple internal audits showed numerous violations of the compendium and industry standards, was sufficient to show that the claims were false because the medications and services provided were not medically necessary. It further found that this was not a case where there was merely a discrepancy over whether the diagnosis fit the treatment because in some of the allegations, the patients had no medical records that supported the diagnosis. The allegations also specifically identify instances where the clinic’s board was informed of the improper treatment and lack of documentation in the medical records.
The court did find that the complaint was largely devoid of details relating to specific claims that were made to the government and the payments that the clinic received as a result of the claims. The allegations of inappropriate treatment were not sufficient to support a reverse false claims count because they field to provide facts regarding the specific treatment, date of payment, or the patient’s identity. Therefore, the claim was not plead with the specificity as required and failed.
The case is No. 14-2249-JWB.
Attorneys: Mark A. Kistler (Brady & Associates Law Office) for United States of America, Ex Rel. Frank Tra. John Wesley Smith (Simpson, Logback, Lynch, Norris, PA) for Mark R. Fesen. Clayton J. Kaiser (Foulston Siefkin LLP) for Hutchinson Clinic, PA.
Companies: Hutchinson Clinic, PA
MainStory: TopStory CaseDecisions CMSNews BillingNews FCANews FraudNews ProgramIntegrityNews KansasNews
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