Medicare fraud is pervasive, and often gives rise to claims under the False Claims Act (FCA), including so-called “qui tam” lawsuits brought by whistleblowers.  The ways in which doctors, practice groups, and other healthcare service providers commit fraud is far-ranging, and the manner in which whistleblowers and the government can prove fraud is constantly evolving.  One way in which a physician can commit fraud is to bill for patients that he or she did not actually see, or for services that he or she did not actually perform.  One symptom of such a practice might be a physician’s pattern of simply seeing what appears to be an unreasonable number of patients on a daily basis—more patients than a competent doctor could actually treat in a given day.  The government was recently presented with such a fact pattern in United States v. Robinson, No. 13-cv-27-GFVT, 2015 WL 1479396 (E.D. Ky. Mar. 31, 2015), and in denying the defendant’s motion for summary judgment, Judge Gregory Van Tatenhove of the United States District Court for the Western District of Kentucky issued a ruling that should provide a roadmap for whistleblowers with knowledge that doctors or service providers are billing for simply too many services.

Robinson involved the government’s claims against Dr. Philip Robinson, an optometrist whose practice generally involved visiting nursing homes to treat patients suffering from conditions such as dementia and providing services covered by Medicare.  The government’s claims were founded on the fact that Dr. Robinson routinely saw more than 60 patients per day, and on fifteen days saw over 90 patients, with a high total of 117 Medicare beneficiary patients on a single day in 2008.  This compared to other doctors in Dr. Robsinson’s practice group who averaged as few as 20 patients per day, and no more than 40, in a nursing home setting.  Not only was the number of patients Dr. Robinson saw on a daily basis staggeringly higher than his colleagues, but a Medicare contracting firm’s “time studies” calculated that, on numerous occasions, Dr. Robinson billed for over 24 hours of services on a given day, which would, of course, be impossible.

Although Dr. Robinson’s aforementioned “high-volume billing” practices were the backbone of the government’s case, the government paired those allegations with facts to indicate that the work performed by Dr. Robinson was not medically necessary, and thus not covered under Medicare.  The majority of Dr. Robinson’s visits were simply designated as “follow up” from a previous visit, and he would always designate each patient to be seen at his “next visit” to each nursing home, which came within the next four-to-six weeks.  Many patients, due to their medical conditions, could not articulate any complaint, and many did not see any change to their history in Dr. Robinson’s records from the first time he examined them.  For most patients, Dr. Robinson would simply prescribe a treatment plan to “monitor” them.

Dr. Robinson challenged the government’s “high-volume billing” claims because he claimed that the government could not prove the requisite “knowledge” element of a FCA violation.  Through an expert, the government introduced evidence that on the “high-volume” days, there was not sufficient information in the medical records to determine whether 85% of the services performed by Dr. Robinson had any medical value, and, rather, that his practice amounted solely to examining patients on a monthly basis without true medical need.  Rejecting Dr. Robinson’s argument, Judge Van Tatenhove credited that evidence, along with the “time studies,” and found that “the FCA does not require the United States to prove specific intent to defraud,” and, rather, that the government can establish the knowledge element of its FCA claim by demonstrating that Dr. Robinson “acted with ‘reckless disregard’ for the truth or falsity of the claims.”  The Court deemed summary judgment inappropriate because “a reasonable jury could infer Dr. Robinson’s actual knowledge, or at least his reckless disregard simply from the physical impossibility of his seeking payment from Medicare for more than 24 hours of work in a single day.”

Although the Court’s “high-volume billing” ruling is the biggest takeaway for FCA whistleblowers, the Court also made other whistleblower-friendly rulings in denying summary judgment.  With respect to whether the services were sufficiently “medically necessary” to warrant payment under Medicare, the Court deemed the government’s expert’s examination of a sample of claims to be sufficient proof when paired with testimony from Dr. Robinson’s colleagues, whose statements indicated that Dr. Robinson followed up with patients more frequently than normal.

Finally, the Court addressed the emerging issue of the use of statistical sampling as a means of proof under the FCA.  Although few courts have addressed this question, the Court had little difficulty following the recent decision in United States ex rel. Martin v. Life Care Centers of America, Inc. , to hold that a sample of the specifics of only 30 claims to extrapolate FCA violations for 25,779 was permissible, so long as the sample was representative and statistically valid.

The Court’s decision in Robinson should be a strong signal to whistleblowers nationwide who have knowledge of doctors who perform only cursory examinations in order to bill Medicare for services.  For particularly egregious practitioners who overreach and bill for more services in a day than they could possibly perform, Robinson stands for the proposition that those facts are sufficient to get a case to trial.