In this case, on May 14, 2013, the medical transportation company's owner Yavoslav (Steven) Proshak, manager Sharetta Michele Wallace, and its biller and office manager Sergey Mumjian were charged with conspiracy to commit health care fraud (18 U.S.C. Section 1349), health care fraud (18 U.S.C. Section 1347), aiding and abetting health care fraud (18 U.S.C. Section 2(b)) as well as forfeiture counts (21 U.S.C. Sections 853 and 2461(c) and 18 U.S.C Section 982(a)(7). These individuals are presumed innocent and an Indictment is not evidence of any wrongdoing.
Healthcare Fraud Attorney Commentary
In this case, the allegations are wide ranging and claim that ProMed's billing from May 8, 2008 to April 6, 2011 of $5.9 million in which $3.1 million was collected was all health care fraud on the ground that there was no medical necessity for the billings. The government claims that the these individuals knew the beneficiaries medical condition did not necessitate ambulance transportation services. The defendants are probably incredulous that the allegations are that all the claims are false claims.
Under Medicare guidelines, a patient whose condition permitted transport in any type of vehicle other than an ambulance did not qualify for Medicare payment unless the patient was bed confined before, during and after transportation. The defense in these type of cases is usually that the beneficiaries' (patients') treating physicians will have ordered the medical transportation and deemed medical necessity. The term "bed confined" is quite specific under Medicare guidelines. The provider must complete a Form 1500 to bill Medicare (or its contracted intermediary Palmetto). These Form 1500s will be key to the case as well as the documentation made contemporaneously at the time of the transportation.
How does the government intend to prove the fraud in this case and get around the physician order?According to the Indictment, the government is contending that the owner and manager altered the "run sheets" completed during the ambulance transportation and instructed employees to alter the "run sheets" and to ensure that they did not write certain terms to indicate that they were ambulatory or able to walk. There are certain patients who are listed in the Indictment and it is likely that these are patients who were interviewed and have indicated that they could walk or sit in a wheelchair at the time and did not need ambulance transportation for non-emergency services.
One of the other issues may be whether the "covered destinations" for the non-emergency transports were appropriate. For example, the only time transportation to the patient's residence is allowed is if the transport is to return from a hospital and the patient's condition at the time of transport required ambulance services. If the transportation were made from home to a dialysis facility, the government may argue that it was not medically necessary. If the patient could get in and out of a wheelchair for example, that may be used to deny the claim. In defending this case, it will be important to see what rules were followed and whether any false statements were made on the 1500 Forms that were submitted for billing.
The difficult issue in these cases is the battle of the expert witnesses especially where the government is alleging that all billings are "false claims." There may be some underlying issues with the referring physicians or facilities (skilled nursing facilities, dialysis facilities, etc.) and the ordering of the transportation. The government's position will be that even if the ambulance came out and saw that the patient could get out of bed into a wheelchair, then they should have refused the transport. The drivers will obviously be key witnesses since it appears from the Indictment they may be contending it was company policy to transport nonetheless and to create documentation that supported transportation. Investigation and interviews of all witnesses would be needed to assess the potential exposure in this case.
Posted by Tracy Green, Esq.
Ms. Green is an experienced Medicare fraud attorney, Medi-Cal fraud attorney, health care fraud attorney, and white collar criminal defense attorney who has handled cases representing employers, providers and individuals over the last 20 years in the health care field.