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Article Summary

Qui Tam 2019 is the second annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle — plus government prosecutors, agency representatives, and subject-matter experts. Here Sarah Frazier of Berg & Androphy gives Scott an idea of what attendees can expect from her Day One panel on how courts evaluate claims that certain treatments are (or aren't) medically necessary.

This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on December 10, 2018.

Qui Tam 2019 Panel Preview: How to Judge Medical Necessity

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(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: [Addressing camera] We are here with Sarah Frazier. Sarah will be one of our panelists at this year’s annual conference in Washington on February 28 and March 1, 2019. This is the second annual Qui Tam Section conference for the Federal Bar Association.

Sarah, tell us a little bit about your panel and what we can expect to hear on February 28.

Sarah M. Frazier: I’ll be moderating a panel on medical judgment — or medical subjectivity, if you like. We will be talking about what some might call “close calls” in terms of medical decisions, and how those might impact False Claims Act cases, either by an attack on [the element of] intent or an attack on the element of falsity. It’s an interesting area [and] a hot topic for the last few years.

Oswald: What makes a medical necessity claim under the False Claims Act?

Frazier: When you’re in the healthcare arena within the False Claims Act, there is a long-time requirement under Medicare [and] Medicaid — and there are analogous provisions in the different healthcare statutes — that [says] that, whatever else happens, the medical treatment that’s provided to a beneficiary should be reasonable and necessary. [T]hat is sort of a core principle.

So you might be billing correctly, and everything else may be right — the doctor may be qualified — but the patient still needs to be treated for, for instance, a disease state that the patient actually has. And the treatment has to be one that is helpful for that disease state, and that is in accordance with the basic standards of how healthcare practitioners are practicing.

The most egregious situations under the False Claims Act have been situations where there is a doctor who is actually billing for, and providing, treatment for cancer that the patient does not have. Those are horrible, tragic cases.

On much smaller levels, an example might be the Polukoff case — it came out recently as a Tenth Circuit decision — where the issue was whether the 25 percent of healthy adults who have these little holes in their hearts that were getting sewn up by this doctor, whether that was medically necessary. The consensus in the medical community was that it was not, except under extremely limited situations.

So those would be two examples.

Oswald: You mentioned medical judgment. Doctors are saying, “Look, this procedure is [based on] an exercise of my medical judgment under the circumstances, and therefore it’s okay” to bill the government — even in some cases that seem pretty blatant.

What’s your sense of the state of the law here?

Frazier: To me it’s intriguing, because on the criminal side the cases are coming out fairly clearly, [even though] that should be the more difficult side in many ways, where you’ve got criminal standards at play, and criminal burdens.

On the criminal side, you’ve got physicians who are being found guilty by juries of medically unnecessary stents, in particular. Juries are looking at the volume of stent procedures, the comparison of how many stent procedures this particular physician is doing — the physician may be an outlier — and other circumstantial evidence. And they’re finding that it’s medically unnecessary, and it’s healthcare fraud. And those guilty verdicts are being upheld, for most part, by the circuit courts.

On the civil side, maybe in part because of lawyering differentials — it’s difficult to say, there are a lot of things at play on the civil side — there’s been more of a fight. The Polukoff case that came out recently was in line with those criminal cases. It said there absolutely can be falsity in a situation like this; we can look at circumstantial evidence. On the other hand you’ve got the AseraCare case going in another direction.

It’s very much a hot enough topic that defense counsel still brings this up at every possible opportunity. So we should have an interesting discussion about that.

Oswald: What do you see for the future in this area? You’ve defined what the battlefield is now. Maybe a year or two down the road, where do you see the law of medical necessity and medical judgment?

Frazier: Well, I think that the AseraCare case is going to be pretty important, however that comes out.

If the Eleventh Circuit falls in line with Polukoff and some of the other cases, then it’s going to be discouraging for those who want to make medical judgment defenses to medical necessity cases. If it comes out the other way, we may be in a true circuit split situation and then we’ll have more drama.

But either way, there are always going to be fact scenarios that present themselves as closer calls — in terms of medical necessity, or having to make a judgment about science. We may talk about science grant cases where, in order to determine whether there’s a fraud, you might have to make a call about scientific research.

So in the right case, there’s always going to be an ability to potentially raise [medical or scientific judgment] as a defense

Oswald: Tell us a little bit about you. You’re a partner at Berg & Androphy in Houston. Tell us about what got you involved in in this practice, representing whistleblowers.

Frazier: In False Claims Act work? Serendipity, I would say: I moved to a firm where that was the practice. But I certainly was looking for a move into plaintiff’s work. Working on the relator side in False Claims Act cases, for me, is very much a mission as well as a living.

Oswald: Sarah, thank you.

Frazier: Thank you!

Oswald: [Addressing camera] We want to thank everyone in advance for registering for the annual conference. It’ll be on February 28 and March 1 of 2019. You can find us at fedbar.org. We look forward to seeing you.

———-

R. Scott Oswald is managing principal of The Employment Law Group, P.C. Sarah M. Frazier is a partner at Berg & Androphy.

 


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