Physician Acquitted Due to Subjectivity

How many times have we heard horror stories surrounding the billings of 99204 versus 99205? We all know that the definitions of E&M codes were revised in 2021.

The new definitions allow physicians to rely on time spent with the patient. However, does the 45 minutes or 60 minutes equal face-to-face time? The definition does not specify face-to-face time, and I do not believe that the time requirements necessitate only face-to-face time. There is subjectivity in assessing whether a moderate or high level of decision-making has occurred. One person’s determination that a 99205 occurred could be the next person’s 99204. Despite the obvious subjectivity, courts have convicted physicians of healthcare fraud for billing 99205s instead of 99204 or 99203.

Well, I bring tidings of great joy. The conviction of a Maryland physician for his role in a $15 million Medicare fraud scheme was vacated by a federal judge over the holidays last year … as in, a month ago.

A federal jury in Maryland convicted Ron Elfenbein, M.D., age 49, of Arnold, Maryland, for five counts of healthcare fraud for submitting over $15 million in false and fraudulent claims to Medicare and other insurers for patients who received COVID-19 tests at sites operated by the defendant in August 2023.  Dr. Elfenbein was the first doctor convicted at trial by the U.S. Department of Justice (DOJ) for healthcare fraud in billing for office visits in connection with patients seeking COVID-19 tests, which makes his acquittal even more important for other providers across the country. This is a groundbreaking case, and all providers should put this powerful example in their defense toolkit.

The conviction of Dr. Elfenbein was based upon his billing of level 4 E&M claims for patients receiving COVID-19 tests, which DOJ determined was improper use of the billing codes.

According to the evidence presented at his three-week Dr. Elfenbein instructed his employees that, in addition to billing for the COVID-19 test, they were to bill for E&M visits. In reality, these visits were not provided to patients as represented. Rather, Elfenbein instructed his employees that the patients were “there for one reason only – to be tested,” that it was “simple and straightforward,” and that the providers were “not there to solve complex medical issues.”

Elfenbein faced a maximum sentence of 10 years in federal prison for each of the five counts of healthcare fraud for which he was convicted. 

Dr. Elfenbein’s motion for acquittal was granted Dec. 21 by the same federal judge who oversaw his initial trial. The judge found that because E&M CPT® codes, the type of medical billing codes used by Dr. Elfenbein, are imprecise and designed to allow “physicians flexibility to exercise their best judgment given the multitude of factors that go into medical decision-making,” his use of the higher-cost level 4 codes did apply to the patient encounters, based on the relevant guidelines.

In a detailed, 90-page ruling, James K. Bredar, chief judge of the U.S. District Court for Maryland, said the government did not meet the bar to convict Dr. Ron Elfenbein, and ruled that “imprecision does not necessarily integrate well with the clear notice and due process guarantees of our criminal law” and “where the relevant CPT codes and related definitions are ambiguous and subject to multiple interpretations, problems clearly arise.”

I agree. Ambiguous or subjective rules should not be the basis for criminal penalties. Civil, possibly. But not criminal.