Partial Measures Won’t Shield Physician Providers From FCA Liability


A recently concluded FCA suit involving a Wisconsin physician practice and a onetime billing department worker allegedly fired for trying to prevent overcharging of the federal government feeds uncertainty about the obligations of providers to ensure all their payments are correct.  In the case, Keltner v. Lakeshore, a whistleblower alleged that audits found high levels of so-called upcoding, in which doctors bill Medicare for costlier services than those provided or warranted. After taking some initial steps to discourage such practices, the clinic decided to ignore audit findings, and it eventually stopped performing audits altogether, the relator alleged.

A judge's refusal to toss the suit was notable for several reasons, including because it allowed a case to proceed based on assumptions that false claims must have been submitted, even though the ex-staffer didn’t identify specific claims her former employer knew to be false. The Judge in the case stated the allegations plausibly [suggest] that the physician acted with reckless disregard for the truth and submitted some false claims mainly because of the allegedly ignored and discontinued audits.

As you know, there’s so much emphasis today on compliance - If physician medical providers don’t take audit information and explore further, they could be opening themselves up to False Claims Act liability. This issue is especially tricky because it’s unclear how far back providers must review their books, and because according to many healthcare attorneys “what is reasonable in one case may be less reasonable in another.”

The Keltner suit was voluntarily dismissed in September; it's not clear if there was a settlement. The case is U.S. ex rel. Elizabeth Keltner v. Lakeshore Medical Clinic Ltd., case number 2:11-cv-00892, in the U.S. District Court for the Eastern District of Wisconsin.

Have questions? I’m here to help.