Day: May 24, 2021

A False Claims Act lawsuit brought by an emergency medicine physician was allowed to proceed based on evidence submitted by the physician demonstrating his own involvement in an alleged billing scheme. While the outcome of the case is still to be determined, it offers a lesson for healthcare providers on the importance of engaging in proper billing practices.

U.S. ex rel. Sonyika v. ApolloMD, Inc. et al

Dr. Chionesu Sonyika originally filed a complaint under the False Claims Act (FCA) against ApolloMD in 2017 on behalf of the federal government and six states. The FCA, which applies to fraud against government programs such as Medicare and Medicaid, has a qui tam provision in which whistleblowers, known as relators, may bring a case on behalf of the government and share in any damages recovered. In 2019, the federal government provided notice it would not intervene in the relator’s case, a happenstance that often marks the beginning of the end for a FCA case. But the U.S. District Court for the Northern District of Georgia, Atlanta Division, recently allowed an amended complaint filed by Sonyika to survive the defendants’ motion for dismissal.

The Physician’s Allegations

Based in Atlanta, Ga., ApolloMD is a privately held company that provides staffing and management services for emergency medicine, hospital medicine, anesthesia, and radiology providers at a number of hospitals. The relator, who worked for the defendants at medical centers in Georgia, alleges ApolloMD used a fraudulent scheme to systematically submit false claims to the Centers for Medicare and Medicaid Services (CMS) and state Medicaid programs. The relator alleged that ApolloMD submitted claims for reimbursement indicating that patients were seen by both a midlevel provider (nurse practitioner or physician assistant) and a physician, even though most patients were only seen by a midlevel provider. Claims submitted under a midlevel provider’s National Provider Identification (NPI) number are only reimbursed at about 85 percent of the rate of those submitted under a physician’s NPI, according to the relator, who alleges that AppolloMD directed its physicians to sign charts even for patients they did not treat, to allow for submission under the higher reimbursement rate. Further, the relator claims ApolloMD emailed all emergency department physicians directing that services for all Medicare patients be billed under the physician’s NPI number, regardless of whether the physician actually saw the patient.

To support his allegations, the relator presented a screenshot that he claimed reflected his own compensation history. The relator claims it would have been physically impossible for him to see all the patients he is listed as treating during the designated time period. The relator also provided various emails from leadership requesting or reminding physicians to attest to or sign midlevel provider charts. Additional evidence included information submitted by the defendants to the Physician Quality Reporting System (PQRS), which the relator alleges raised questions among physicians as to why services they had not actually performed were attributed to them.

What the Court Said

The defendants moved for dismissal, arguing that the relator failed to “plead with particularity that any false claims were actually presented to or paid for by the government” and that the relator “admits that he has no examples of actual fraud.” The defendants further argued the relator does not have first-hand knowledge of the defendants’ billing practices.

Although acknowledging the relator failed to identify any single claim presented for reimbursement, the court held the relator’s personal knowledge and involvement in the alleged scheme provided sufficient “indicia of reliability” for the FCA claims. The court said the relator’s eight years of working at two different ApolloMD locations, his close review of his own billing and payment data, and the email correspondence from ApolloMD’s leadership that the relator submitted as evidence of the alleged scheme allowed the case to proceed under the FCA. The Eleventh Circuit, which includes Georgia, applies a “nuanced, case-by-case approach” when considering whether the required indicia of reliability necessary for stating firsthand knowledge of a scheme are present. “A relator with direct, first-hand knowledge of the defendants’ submission of false claims gained through employment with the defendants may have a sufficient basis for asserting that the defendants have actually submitted false claims,” the court said.

Additional Allegations Were Dismissed

The relator also alleged that ApolloMD violated the Anti-Kickback Statute of the FCA, but on this count, the defendants’ motion for dismissal was granted. The relator claimed that the requirement that physicians sign off on every chart resulted in significantly increased payments to physicians, since the physicians’ compensation was directly tied to the number of patients they were listed as treating. The relator alleged this amounted to illegal kickbacks. However, the court held the relator failed to plead with particularity the elements of this claim.

Further, as the relator did not show adequate foundation for knowledge of ApolloMD’s billing and claims practices outside of Georgia, the relator’s claims alleging state FCA violations against government programs in five other states were also dismissed.

The Takeaway

This case illustrates the importance for healthcare practices and physician practice management companies to regularly audit their global practices to assure compliance. Should Dr. Dr. Chionesu Sonyika’s case prove successful, it may encourage other potential whistleblowers to come forward with their personal knowledge of improper billing practices

The Fifth Circuit found there was not enough evidence linking a NASA engineer’s mesothelioma death to asbestos products supplied by two insulation companies. In affirming a lower court’s decision, the Fifth Circuit sided with Taylor Seidenbach Inc. (TSI) and McCarty Corp.

Background

Frank C. Williams, an employee of Lockheed Martin Corp., worked as a mechanical engineer at the NASA Michoud Assembly Facility (MAF) in New Orleans from about 1974 to 1993. MAF comprises dozens of buildings, and Williams worked mostly in Building 350. Deteriorating asbestos was present in Building 350, leading to asbestos remediation in the mid-1980s.

In 2008, Williams was diagnosed with mesothelioma, a malignant tumor in the lining of the lungs, abdomen, or heart caused by inhaled asbestos fibers. The life expectancy for most mesothelioma patients is roughly one year following diagnosis.

After his diagnosis, Williams sued multiple defendants, including TSI and McCarty. After Williams died in 2009, his children, Tarsia and Breck, were substituted as plaintiffs. In 2014, a federal district court granted the defendants’ motions for summary judgment, citing a lack of evidence that Williams was exposed to respirable asbestos at MAF. Furthermore, even if he had been exposed to asbestos at work, the court said there was no link between the exposure and the defendants’ products. The plaintiffs appealed.

The appeal

The Fifth Circuit weighed whether the district court was correct in granting summary judgment. A summary judgment is a judgment entered by a court in favor of one party without a full trial. A party is entitled to summary judgment if no genuine dispute of material fact exists to allow a reasonable jury to find against the party. The plaintiffs argued the district court erred in granting summary judgment because a reasonable jury could conclude that Williams was exposed to asbestos products installed and supplied by McCarty and TSI.

In reaching its decision to affirm, the Fifth Circuit considered the causation standard required by Louisiana law along with the evidence and found insufficient evidence to raise a genuine dispute that either of the defendants’ products substantially contributed to Williams’ injury.

Causation

Under Louisiana law, a plaintiff claiming asbestos-related injury must prove “significant exposure to the product” to the extent that it was a “substantial factor in bringing about his injury.” To defeat summary judgment, plaintiffs must point to evidence creating a genuine dispute of whether plaintiff was in fact exposed to a product connected to the defendants. Proof is sufficient “if defendants’ products are likely to be present at a specific location within the workplace,” because “plaintiffs are likely to have been exposed to the products if they worked near those specific locations,” the court said. Evidence could be direct or circumstantial, but there must be some evidence connecting the defendants to asbestos where plaintiff was exposed.

First, the court considered McCarty. Assuming Williams was exposed to asbestos during the 1980s remediation in Building 350, the district court concluded there was no evidence that any of the asbestos was manufactured, sold, or installed by McCarty. The plaintiffs disputed this, saying their evidence suggested McCarty’s products were present in Building 350. The plaintiffs’ main piece of evidence was a late-1960s advertising brochure from McCarty. The brochure lists more than 30 commercial insulation projects for which McCarty was the thermal insulation contractor. One project was “NASA Michoud Operation, New Orleans.” The next page notes McCarty “is fully equipped for spray insulation,” although it does not specify which listed projects, if any, involved spray insulation. According to the plaintiffs, this brochure, by identifying McCarty as MAF’s “thermal insulation contractor,” sufficiently ties McCarty to Williams’ exposure. The Fifth Circuit disagreed, noting the brochure does not reveal enough about McCarty’s work at MAF to create a genuine fact dispute. The brochure merely establishes that McCarty supplied MAF with insulation, in some form, in the years leading up to 1968, but that leaves a critical evidence gap unfilled, the court said. The brochure does not show that McCarty supplied insulation in Building 350 or in any other building Williams may have visited. Nor does it suggest that McCarty products could be found “randomly and evenly all over” MAF. Consequently, the court said, no reasonable jury could conclude merely from the brochure that McCarty supplied asbestos products to Building 350 or any other building Williams regularly visited. Plaintiffs pointed to additional evidence, including two building surveys from 1984 and 1997 showing that asbestos materials were discovered in Building 350 and elsewhere at MAF, but those documents do not link the materials to McCarty.

The plaintiffs also mentioned an affidavit from a local industry expert asserting that both McCarty and TSI were responsible for Williams’ exposure. But that affidavit was based not on the two companies’ activities, but solely on the individual’s “knowledge of the insulation sellers and installers and workers of various companies who regularly did insulation work in the New Orleans metropolitan area.” Moreover, at an earlier deposition, the witness testified he had seen no evidence that McCarty supplied asbestos products to Williams’ worksite. The plaintiffs also referenced documents from 1964 about McCarty’s MAF work, but those documents do not specify where the work occurred or what materials were used. In summary, the plaintiffs failed to identify any evidence creating a genuine dispute that McCarty’s products substantially contributed to Williams’ injury.

With regard to TSI, the court said the plaintiffs failed to identify any evidence suggesting that TSI was connected to asbestos that harmed Williams. “Mere assertion” of TSI’s connection to Williams’ injury “is insufficient to survive summary judgment,” the court said. The plaintiffs relied on a 1980 deposition of M.R. McCarty, who testified that his company, McCarty, sometimes used TSI products when supply from Johns-Manville, its principal source, ran out. But even assuming McCarty’s products could be placed at Williams’ worksite (which the evidence failed to support), plaintiffs would still have to show a triable issue as to whether McCarty used TSI’s products there.

The judgment, therefore, was affirmed.

The takeaway

Plaintiffs in mesothelioma cases face challenges not only in linking their illness to asbestos exposure in a particular facility, but in producing evidence identifying was responsible for asbestos in buildings that were constructed many decades ago.