On June 17, 2019, the U.S. District Court of the District of Massachusetts rejected Massachusetts General Hospital’s (MGH) request to dismiss a qui tam complaint alleging that the teaching hospital fraudulently overbilled Medicare and Medicaid for surgical procedures performed without a supervising teaching physician’s presence. The District Court found that the whistleblower’s allegations of double-booked and unsupervised surgical procedures and lack of informed consent, which were supported by reference to specific corresponding bills submitted to Medicare or Medicaid, were sufficient to meet the heightened pleading standard applied to FCA claims. The lawsuit will proceed.
The relator, a former anesthesiologist at MGH, initiated the qui tam action in May 2015. She alleges that while at MGH she witnessed a practice of double or triple-booking surgeries for teaching physicians. This allegedly resulted in residents and fellows conducting some or all of the procedure outside the presence of the teaching physician, and without the teaching physician or any designated alternate surgeon ready to immediately assist if the need arose.
The qui tam complaint asserts that MGH violated the FCA by billing Medicare and Medicaid for such services. Under Medicare, if a resident participates in a procedure, a treating physician must be present during “all critical portions” of the procedure and be “immediately available” to take over during the entire procedure. 42 C.F.R. § 415.172(a)(1). CMS Medicare guidelines establish that in the event of overlapping surgeries, a teaching physician can only be involved in the second procedure after all “key portions” of the initial procedure have been completed, and the physician arranges for another surgeon to immediately assist the resident in the first procedure if the need arises. Id.
The teaching physician must also personally document that she was present during the “critical or key portion(s)” of both procedures, another requirement allegedly not met by MGH teaching physicians. Instead, the Court acknowledged allegations in the complaint that surgeons “failed to keep accurate records to conceal their practices” of overlapping surgeries.
The complaint goes on to assert other related bases for fraudulent billings in violation of the FCA. The relator alleges instances of teaching physicians being triple-booked, which under CMS guidance are de-facto non-reimbursable as a “supervisory services” to the hospital rather than physician services to any individual patient. She also alleges instances where due to double-booking, a patient already placed under anesthesia was waiting for the surgeon to finish up with another patient. Because anesthesia services are billed based on time blocks, this allegedly resulted in the billing for medically unnecessary anesthesia services.
Lastly, hospitals are required to obtain Medicare and Medicaid beneficiaries’ informed consent for services in order to be reimbursable. According to the qui tam complaint, MGH’s written consent forms did not adequately advise patients that their treating physicians may be double booked and/or a resident might be performing particular tasks rather than the physician. According to the complaint, MGH went so far as to ensure patients undergoing concurrent surgeries from the same physician were placed in separate rooms to conceal the practice.
The District Court had previously dismissed a prior version of the complaint but allowed an amended complaint to proceed due to one critical difference. While the prior complaint included detail as to the hospitals’ alleged misconduct in the manner in which care was rendered, the District Court dismissed the prior complaint because it lacked detailed allegations that specific false claims were submitted for government payment as a result of that misconduct. However, with the opportunity to amend her complaint, the relator was able to provide additional details of 11 specific claims submitted to Medicare or Medicaid tied to those specific instances of double-booked surgical procedures previously alleged.
The case, United States ex rel. Wollman v. Gen. Hosp. Corp., Case No. 1:15-cv-11890-ADP, proceeds before U.S. District Judge Allison D. Burroughs in the District of Massachusetts. A copy of the June 17, 2019 Order Denying Defendants’ Motion to Dismiss can be found here.
