By Susan L. Smith, JD, MA
An ophthalmology clinic violated the False Claims Act when it intentionally billed Medicare for procedures to detect glaucoma it did not render by using the code for measuring aqueous outflow facility rather than the code used for measuring intraocular pressure.
An optometrist who was employed by a clinic that provides ophthalmological services, including the detection of glaucoma, succeeded in his claim that the clinic billed Medicare for providing services for tonography, which checks aqueous outflow facility, rather than tonometry, which checks eye pressure checks in violation of the False Claims Act (FCA) (31 U.S.C. §3729). The court found that the clinic acted in reckless disregard by persisting to submit the Current Procedural Terminology® (CPT®) code for tonography, ignoring the concerns raised by the optometrist and expert opinions. Therefore, the court granted the government’s motion for summary judgment (United States of America ex rel. v. Sorensen, March 16, 2020, Hughes, L.).
Tonometry versus tonography procedures. Tonometry uses instruments, referred to as tonometers, that measure the force necessary to cause detectable changes to the corneal surface. Such measurements include the reaction to an air-puff; the depression of the cornea as it is pressed; and the flattening of the cornea, known as an applanation tonometer. From February 2006 through December 2011, the clinic performed tonometry using a Tono-Pen applanation tonometer and directed its physicians and staff, when using the Tono-Pen, to bill the eye pressure sessions under the code for tonography (CPT Code 92120).
Tonography is the measurement of the aqueous outflow facility of the eye under continuous pressure. Code 92120 describes the procedure as tonography with interpretation and report, recording indentation tonometer method or perlimbal suction method." The government explained that tonography with interpretation and report, is one procedure performed by either of two methods, either (1) recording indentation tonometer or (2) perlimbal suction (the corneal limbus is the border of the cornea and the sclera (the white of the eye)).
The optometrist’s role. The optometrist approached the clinic’s medical director several times with his concerns about the clinic’s billing practice. The optometrist expressed his own concerns and again approached the medical director after getting the opinion of another optometrist who agreed that code 92120 should not be used for tonometry. Subsequently, he showed the medical director the opinions of the American Optometric Association, American Academy of Ophthalmology, and the Review of Ophthalmology, which agreed that the clinic was not performing tonography and should not bill under that code when checking eye pressure with a tonometer. The clinic continued to bill under the code. The medical director told the staff that "the code was appropriate so long as they manually plotted a patient’s eye pressure on a paper graph after successive visits…"
The clinic’s contention. The clinic argued that the code refers to a series of services and applies to three separate procedures, tonography with interpretation and report, recoding indentation tonometer method, or perlimbal suction method. Because the code includes the words recording indentation tonometer method, the clinic contends it properly billed under the code when checking eye pressure with the tonometer. The court rejected the clinic’s argument noting that CPT codes use a comma when listing separate categories, while the clinic’s interpretation did not, and the clinic’s interpretation required inconsistent phraseology. Thus, the court concluded that the clinic missed a plain reading of the CPT code.
FCA violation. The court determined that the clinic’s interpretation is not supported by the data and the clinic had no scientific evidence to support its position. The government provided scientific evidence of the substantive differences between the tonometry and tonography. The evidence showed that the "recording indentation tonometer method" of tonography uses an electronic Schiotz tonometer" that "indents the eye to record intraocular pressure and produce a graph showing the aqueous outflow facility as the eye is continually pressed for four to five minutes." The court pointed out that the graphing procedure is electronic not manual and is done in one sitting rather than successive visits. Further, the Tono-Pen is an applanation tonometer not an indentation tonometer. Finally, tonography measures aqueous outflow facility not inter ocular pressure. The court concluded that the clinic had violated the FCA in that it had made false statements to the government when it billed for procedures it had not conducted. By billing tonometry, which is part of a comprehensive service, as tonography, it caused the government to pay money for a service that is not separately reimbursable and for services the clinic never rendered.
The case is Civil Action No. H-12-00480.
Attorneys: Jose Vela, Jr., United States Attorney's Office, for the United States. James Gregory Rytting (Hilder Associates PC) for Michael Sorensen. Lara Longo Silva (The Silva Law Firm) for Outreach Diagnostic Clinic d/b/a Outreach Eye Care, Eme Agomo, Mustapha Kibirige, Mustapha Kibirige, MD, PA d/b/a Outreach Eyecare, Outreach Diagnostic Clinic, LLP, Emelike Agomo and Mustapha Kibirige.
Companies: Outreach Diagnostic Clinic d/b/a Outreach Eye Care; Mustapha Kibirige, MD, PA d/b/a Outreach Eye Care; Outreach Diagnostic Clinic, LLP
MainStory: TopStory CaseDecisions CMSNews BillingNews FCANews FraudNews PartCNews
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