Under Medicare "Part B" - Supplementary Medical Insurance for the Aged and Disabled - Medicare covers medically necessary ambulance services. Ambulance services are deemed medically necessary "if they are furnished to a beneficiary whose medical condition is such that other means of transportation are contraindicated." 42 CFR 410.40. Although "bed-confinement" is itself neither sufficient nor required as evidence of medical necessity, it is a "factor to be considered." A Medicare beneficiary is bed-confined if three requirements are met: "(i) the beneficiary is unable to get up from bed without assistance; (ii) the beneficiary is unable to ambulate; (iii) the beneficiary is unable to sit in a chair or wheelchair."
Medicare imposes an additional requirement for non-emergency, scheduled, repetitive ambulance services, such as dialysis transport: in addition to itself determining that medical necessity requirements are met, the ambulance service provider must, before providing service, obtain a written order from the patient's physician certifying the medical necessity of ambulance transport. 42 CFR 410.40(d). Such order is valid for 60 days.
Effective April 1, 2002, CMS established a fee schedule for ambulance services, replacing the previous "reasonable charge" billing procedure. See 42 CFR 414.601. The fee schedule defines several different levels of ambulance service. Payment is made on the basis of services actually performed - rather than on the type of call or vehicle involved. For example, Basic Life Support (BSL) is defined as "transportation by ground ambulance vehicle and medically necessary supplies and services, plus the provision of BLS ambulance services." Accordingly, ambulance providers are required to maintain all records demonstrating the medical necessity of transport services billed to Medicare or Medicaid, as well as the actual provision of a level of service requiring an ambulance.
Identified types of fraud related to ambulance transport include:
-- False billing for ambulance service to patients who are not bed bound or otherwise in need of transport by ambulance;
-- False records reflecting fictitious patient conditions intended to justify unnecessary ambulance service;
-- False records indicating health services - such as oxygen - that were not provided;
-- False billing for individual transport when transport was in fact provided on a group basis;
-- False billing for ambulance services that were never provided; and
-- Paying Illegal kickbacks to nursing homes and assisted living facilities in exchange for referrals of dialysis patients.
Under the federal False Claims Act, persons with credible first-hand knowledge of such ambulance fraud and false claims for unnecessary ambulance transport services to Medicare, may be entitled to substantial rewards. The False Claims Act requires companies who have defrauded Medicare to re-pay three times the amount of the total false claims plus up to $11,000 in fines per false claim. Accordingly, the amounts recovered against large ambulance companies who game the system can be in the millions, tens of millions, or even more. Whistleblowers who report the fraud by filing suit under the qui tam provisions of the federal False Claims Act may be entitled to as much as 25% (and under certain circumstances up to 30%) of such recoveries. Additionally, employees who blow the whistle are entitled to certain protections, including reinstatement, treble back-pay, and attorneys' fees and costs.
Jim Barger, Jr. is a nationally recognized trial lawyer who handles complex federal litigation, particularly qui tam cases under the False Claims Act. Jim achieved his first seven-figure civil result within two years of practice and his first eight-figure civil result within five years of practice. One of the most often cited legal scholars on qui tam and False Claims Act litigation, Jim's writing in some cases has actually shaped the law itself. He has been cited by state legislators in adopting state False Claims Acts, by other attorneys in court pleadings litigating False Claims Act cases, and by scholars in legal treatises and law reviews such as Alabama Law Review, Boston University Law Review, Cardozo Law Review, Columbia Law Review, and others. In 2009, Jim Barger represented nurse whistleblower Nancy Romeo in the largest Medicare Hospice case in U.S. history resulting in a record return of nearly $25 million.
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? 2011 James F. Barger, Jr.
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