November 19, 2012
Payment for Durable Medical Equipment (DME) has become one of the “hot points” for control of Medicare program expenses, bringing attorneys into struggles over regulations and their fact-intensive applications. There are many seniors and disabled individuals for whom power wheelchairs and scooters are essential to normal daily living activities. Such DME is often billed to Medicare.
However, there is an ongoing concern by the Medicare program that billing for such equipment needs to be examined carefully to prevent fraudulent payments.
The U.S. v. Whitfield case illustrates how finely the line may be drawn between appropriate and fraudulent DME orders—and how Medicare is pursuing legal cases where detailed program requirements are not being met.
As it turns out, the differences between appropriate and fraudulent billing are very fact-specific, and attorneys need to understand application of the regulations.
In this case, the individual for whom a power scooter was ordered was able to walk with a walking stick; owned an old power scooter that had been damaged in a hurricane but had been repaired and still worked; and had not received approval from his physician for purchase of a new scooter.
Equipment paid for by Medicare must be “medically necessary.” If a program beneficiary can “participate in normal daily living with the use of a walker or cane,” the person is generally not eligible for a power wheelchair or scooter.
However, the Defendant (salesperson for a DME company) prepared documentation for purchase of a new scooter.
The case turned on whether or not the Defendant realized that her documentation would be used for fraudulent billing to Medicare by her company.
To prove health care fraud, the government had to show that the Defendant had entered into a “scheme” to defraud Medicare. Elements of the crime were “an agreement to commit health care fraud,” knowledge of the “unlawful purpose” of the agreement, and “intent” to further the unlawful purpose.
Based on the specific facts of the case, the Court of Appeals upheld the jury’s conviction of the Defendant.
Eligibility criteria must be determined in detail from program regulations. Advance documentation should always be prepared to demonstrate that all criteria for DME eligibility have been satisfied, with follow-up documentation that all equipment has been delivered and used for the intended purpose.
For this case, no scooter was ever delivered.
Attorneys Ferd and Cheryl Mitchell have written a recent book on implementation of the Affordable Care Act, listed as “Legal Practice Implications of the New U.S. National Health Care Plan” (July, 2012)