An occupational therapist employed by
Advocate Aurora Health has filed a False Claims Act lawsuit against the company, on behalf of the U.S. government, following allegations that the company has engaged in a years-long “padding billing scheme.”
"The true scope of (Advocate Aurora’s) padding billing scheme, though small-scale at first glance, is in reality that of a brazen, multi-million dollar scheme the likes of which have resulted in multiple False Claims Act Settlements with other therapy providers nationwide," according to the lawsuit.
In a Friday statement, Advocate Aurora said, "We’ve just received news of the complaint. While we are still evaluating the allegations, we plan to vigorously defend ourselves."
The False Claims Act complaint against Advocate Aurora Health was initially filed last July by
Joseph Fantin. He's been an occupational therapist at Aurora West Allis Medical Center since 2003.
The case was filed under seal for several months while the government investigated the allegations found in the complaint. The case was unsealed this week after the government declined to intervene in the case. This allows Fantin to carry on with his case against Advocate Aurora while the government continues to be listed as a plaintiff entitled to damages.
"Defendants, acting through occupational therapists, physical therapists, mid-level managers and senior executive employees, have knowingly and/or recklessly caused taxpayers to be bilked out of hundreds of millions of dollars by fraudulently padding claims for payment for (physical therapy) or (occupational therapy) services submitted to Medicare for thousands of Medicare patients annually," according to the lawsuit.
Specifically, Advocate Aurora is accused of engaging in a “padding billing scheme” in which therapists were encouraged to add more billable units to each claim than the actual amount of services provided.
These claims were then paid by government health care programs including Medicare, Medicaid and TRICARE.
Medicare billing rules state face-to-face therapy minutes are added together and then divided by 15 to determine total billable units for a given procedure. An additional unit is granted when at least eight minutes of therapy is provided.
The alleged padding billing scheme involved occupational therapy and physical therapy services provided to patients who were generally in hospital rooms recovering from acute conditions. These people had no expectation for how many minutes of therapy they were supposed to be receiving, according to the complaint.
This setting allegedly allowed therapists to provide “drive-by” therapy sessions that were sometimes shorter than 15 minutes. Then, therapists allegedly billed for more units of therapy than could have possibly been provided in that time frame.
Fantin claims he brought the scheme to the attention of hospital management in August 2022 and in February 2023, but no changes were made.
Fantin alleges false claims have also been submitted from Aurora Sinai Medical Center, Aurora St. Luke’s Medical Center, Aurora St. Luke’s Medical Center – South Shore and Aurora Medical Center – Grafton.
Alleged pattern of submitting false claims
In mid-2018, Fantin claims he began receiving negative feedback from a new supervisor regarding his productivity levels and documentation.
Advocate Aurora therapists have a “strict productivity requirement” in which their eligibility for a raise is linked to the total number of therapy units they bill, according to the complaint. Therapists spend several hours a day performing non-billable tasks like paperwork and speaking to families, so these requirements are difficult to meet.
While reviewing the chart notes of his fellow therapists at Aurora West Allis, Fanin allegedly discovered they were billing for non-billable activities. Fantin emailed his discovery to then Advocate Aurora CEO
Nick Turkal and
Rick Kellar, then president of Aurora West Allis Medical Center. They allegedly responded via a letter explaining the billed items in question were indeed billable items under company policy.
Still, the letter informed Fantin that an audit would be conducted based off his concerns. Fantin claims he never received further information about the audit.
According to the complaint, no other incidents between Fantin and his supervisors occurred until July 2022. A corrective action against Fantin was issued by one of his supervisors. The corrective action accused Fantin of spending too much time in the staff office filling out paperwork. That supervisor also accused Fantin of possibly making false billing statements.
To clear his name, Fantin once again started reviewing some of his colleagues’ documents to show that what he was doing was in line with his colleagues’ routines. He again found several instances of therapists billing for more minutes than could have been provided, according to the complaint in the case.
During a September 2022 meeting with hospital leadership, Fantin presented the newly uncovered inaccurate billing statements. However, his supervisor “quickly shut down the conversation and abruptly ended the meeting,” according to the complaint.
After that September meeting, according to the complaint, a supervisor sent Fantin a follow-up email stating, “During our conversation yesterday, you brought up errors from other co-workers that you discovered on their documentation in patient charts. I want to caution you that purposefully looking for errors could be considered retaliation. It is not your responsibility to investigate this on your own and is not within your scope to do so. Please discontinue this practice."
Despite this email, Fantin continued looking into his coworkers’ documentation. He concluded that the volume and frequency with which the alleged false claims were submitted meant they were not an error, but purposeful. The lawsuit lists 36 examples of false claims from Aurora West Allis alone.
What happens next
The False Claims Act states that any person who knowingly submits false claims to the government is liable for three times the government’s damages, plus a penalty linked to inflation.
The FCA allows “private persons” to file lawsuits for violations of the act. The person filing the legal action is called a “relator.” In this case, Fantin is the relator.
A lawsuit filed by an individual on behalf of the government is called a “qui tam” action. These complaints must be filed under seal and served to the U.S. attorney for the judicial district where the lawsuit was filed. The lawsuit must also be served to the attorney general of the United States.
If the government intervenes in a qui tam lawsuit, the relator is entitled to receive between 15% and 25% of the amount recovered by the government. If the government decides not to intervene, that amount increases to between 25% and 30%. Because the government declined to intervene in this case, Fantin would be entitled to between 25% and 30% of any damages to be determined at trial.
The U.S. Attorney’s Office for the Eastern District of Wisconsin did not respond to a request for comment.
"A declination is not necessarily a reflection of the merits of the lawsuit. The government declines to intervene in the vast majority (approximately 80%) of False Claims Act cases," according to Minneapolis-based law firm Berger Montague, which has represented whistleblowers in False Claim Act lawsuits for over 20 years.
The lawsuit seeks damages on behalf of the United States and Fantin. Specifically, the lawsuit requests that Advocate Aurora pay three times the amount of damages sustained by the United States. The exact amount of damages the United States has sustained has yet to be determined.
