Doctor pays $625K for alleged False Claims Act breaches

A Georgia doctor has agreed to pay the federal government more than $600,000 after a whistleblower filed a lawsuit exposing alleged False Claims Act (FCA) violations.

According to a Tuesday news release, Dr. James Ellner and his Woodstock practice, Georgia Pain Management PC, and ambulatory surgical center, Samson Pain Center PC, agreed to pay $625,000. Ellner and his businesses were accused of breaching the FCA by submitting improper claims to the Medicare and TRICARE programs for evaluation and management services and medically unnecessary urine drug screening tests.

“The federal government expects that physicians and their practices will properly bill Medicare and TRICARE for services they provide,” U.S. Attorney Ryan K. Buchanan said in the release. “The Department of Justice will work diligently to hold healthcare providers accountable when they break the rules and overbill federal healthcare programs.”

Though the amount Ellner and his businesses owe the government was released in the settlement agreement, the amount of employment and attorney fees were not. Also, under the agreement, no determination of liability has been made, and Ellner can continue to practice medicine and keep his businesses open as long as the fine is paid and he commits no more Medicare fraud.

Lawyer: Plaintiff Fired for Raising Concerns

The settlement came after Georgia Pain Management billing department employee Amy Tyson, who later got divorced and changed her name back to Amy Vermillion, filed a qui tam lawsuit in the U.S. District Court for the Northern District of Georgia against Ellner and his two businesses in 2018.

Earlier that year, she was fired after raising concerns over billing issues she’d discovered, said her attorney, Mike Bothwell, founding partner of the Bothwell Law Group in Roswell. Prior to her termination, she had her computer and printing activity audited and “was harassed [and] discriminated against,” according to her amended complaint.

The FCA is a federal law that levies civil liability on any individuals or entities who submit or cause to be submitted, false claims for payment on the federal government or its contractors. It imposes treble damages and a civil penalty between $12,537 and $25,076 per false claim, the release said. The FCA is the main authority used by the United States Attorney’s Office’s Civil Division to redress fraud, waste and abuse within federal programs, including Medicare and TRICARE.

According to the release, the government claims that, between May 1, 2015, and Dec. 31, 2019, Ellner and Georgia Pain submitted false claims to the Medicare and TRICARE programs for evaluation and management (E&M) services that were not reimbursable under federal health care programs.

Medicare usually prohibits health care providers from separately billing for E&M services provided on the same day as another medical procedure, unless those services are significant, separately identifiable and above and beyond the usual preoperative and postoperative care associated with the medical procedure.

“If an E&M service satisfies these criteria, the provider can use a billing code known as Modifier 25 to bill for the significant and separately identifiable E&M services,” the release said. “In this case, the United States alleges that Georgia Pain used Modifier 25 to improperly unbundle routine E&M services that were not separately billable from other minor surgical procedures performed on the same day, and as a result, Georgia Pain claimed reimbursement from Medicare and TRICARE that it was not due.”

The government also alleged Ellner and Georgia Pain participated in an arrangement that violated the Anti-Kickback Statute, in which a reference laboratory paid the salary of an individual who functioned as a free employee of Georgia Pain in exchange for Ellner’s referral of urine drug tests – many of which were medically unnecessary.

FCA Helps Stop Fraud

Bothwell said his client is “very happy” with the outcome of the settlement.

“I really appreciated working with the Department of Justice to prosecute this fraud,” he said. “This is what the False Claims Act is supposed to be: where the whistleblowers and their attorneys contribute to it, the Department of Justice contributes to it, and someone has to pay back the money they took.”

Bothwell added that Vermillion “brought a case [the government] never would have known about, [and the defendants] would have continued the fraud if it wasn’t for her bringing this forward. She was very brave in doing so and was very concerned about this, and ultimately justice prevailed. She was a little bit scared by the process, but she felt like she had to do the right thing.”

Bothwell, whose practice centers on FCA whistleblower suits, said the law is important because, through its cases, more than $72 billion has been returned to federal taxpayers. According to a February news release, settlements and judgments under the FCA totaled more than $2.2 billion in fiscal 2022, which ended Sept. 30.

“My firm, over the last decade or so, has been involved with cases that returned almost three quarters of a billion dollars to the government,” Bothwell said.

According to a September report released by Taxpayers Against Fraud, a Washington, D.C.-based nonprofit, the federal government loses more than $100 billion in taxpayer funds annually due to private insurance fraud.

“That’s why I really like the False Claims Act, because it gives [whistleblowers] an incentive to come forward and seek justice for the taxpayers,” Bothwell said. “I believe my client got 19% of the settlement as her share.”

According to the settlement release, Vermillion will get $118,000 from the settlement.

Juan C. Santos, a senior Florida health care attorney with the Chapman Law Group in Miami who represented the defendants, did not return phone and email messages to his office seeking comment on the settlement.

The suit was captioned United States ex rel. Amy Tyson v. Georgia Pain Management, P.C., Samson Pain Center, P.C., and James Ellner, M.D., Civil Action 1:18-cv-5520.

This article was updated at 5:42 p.m. June 5 with the correct reason why Amy Tyson changed her name to Amy Vermillion.