Date: April 22, 2022Attorney: Mohamed H. Nabulsi

Recently, the U.S. Department of Justice, in a series of aggressive and seemingly novel prosecutions, charged numerous healthcare providers and others who operated COVID-19 testing sites due to their billing Federal Healthcare Programs for evaluation and management (“E&M”) services (as add-ons to COVID-19 tests) for encounters with patients who reported to drive-through sites for COVID-19 testing. 

According to the government, the providers’ claims for E&M services were false because the E&M services were not medically reasonable and necessary in that:

(i) the rendering providers spent very little time with the patients during the relevant encounter and

(ii) the encounters did not meet the requisite level of complexity or require the requisite level of medical decision-making to justify the code billed. 

Given the conflicting guidance on the propriety of billing an E&M code as an adjunct to a COVID-19 test, including the American Medical Associate’s guidance on COVID-19-related billing which became effective on January 1, 2021, as compared to the 1997 guidelines, these prosecutions signal a potential change in the government’s approach to billing improprieties that historically resulted in recoupment actions by Medicare Administrative Contractors or, at most, civil prosecution under the Federal False Claims Act.

We urge providers and other operators of COVID-19 drive-through testing sites to consider promptly self-auditing their billing practices through their legal counsel for potential billing improprieties. Upon discovering a material billing impropriety, careful consideration of remedial steps to protect against possible adverse legal actions, including self-disclosure, is critical.