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City in Iowa Suing its Attorney for Failing to Properly Analyze Federal False Claims Act suit

An attorney and his law firm are being sued for legal malpractice for not properly analyzing a suit brought against the city  Were they just not particularly good lawyers  or did they actually commit legal malpractice?

Expert witness testifies that an important quoted ratio was not national average as touted

October 9, 2013. By Katie Dahlstrom. http://clintonherald.com/

CLINTON — The ratio touted as the national average for emergency medical services bills as the city faced accusations of Medicare fraud was never meant to be regarded as such, according to the man credited with introducing the ratio.

Emergency medical services specialist Douglas Wolfberg’s deposition was read into the record Tuesday, disclosing that the 60 or 70 percent ALS, 40 or 30 percent BLS ratio, which attorney Michael Walker relayed to the council as it moved forward with the emergency services lawsuit, was never meant to be taken as more than anecdotal.

During the seventh day of the city’s legal malpractice suit against Walker and his law firm Hopkins and Huebner, both parties read from transcripts of Wolfberg’s deposition, which was taken in Decemeber in Pennsylvania.

The city is suing Walker because it claims he failed to properly analyze a federal False Claims Act suit that former firefighter Timohty Schultheis filed in 2008. Schultheis alleged the city was improperly billing ambulance runs at an advanced life support level instead of a basic life support level in order to get higher reimbursements from Medicare and Medicaid. That suit ended with the city settling with Schultheis and the U.S. Department of Justice for $4.5 million in 2010.

Walker retained Wolfberg in March 2010 as an expert witness for the city and subsequently provided him with record summaries and patient care reports, forms paramedics fill out after an ambulance run that includes the ALS or BLS code.

At the time in question under the suit, the city had a 99 percent ALS rate in Medicare billings.

The 60/40 or 70/30 ratio was never meant to be and was likely not conveyed to Walker as a national standard, Wolfberg said. The ratio was relayed to the council as the average and used to determine the potential fines the city could have faced.

“You know what? I never gave anyone a national average and no one should be making more of that brief, informal conversation than it was,” Wolfberg said in his deposition.

Despite the fact that his ratio wasn’t based on any statistical data or analysis, Wolfberg maintained that in regards to ALS rates “if higher than 70 percent, someone has some explaining to do.”

Even with the city’s high ALS rate, Wolfberg said he told Walker there were possible defenses for the case and maintained that opinion at the time of his deposition.

During his deposition reading, the jury also learned Wolfberg only did a cursory review of the city of Clinton’s ambulance records and never determined if the city’s Medicare or Medicaid claims were appropriately billed.

“A thorough review couldn’t be done,” Wolfberg said in his deposition.

According to Wolfberg’s deposition, he began to inventory the records he was given, but upon finding duplicate reports with different information, his work was halted.

When he reached out to Walker, Wolfberg was directed to EMS Director Andy McGovern, Wolfberg said.

When asked about the duplicate reports, McGovern told Wolfberg it was due to a change in the software and gave opinions that “weren’t helpful,” according to Wolfberg’s testimony. Wolfberg said he was skeptical of McGovern’s explanation, though Wolfberg admittedly is not a computer expert.

Wolfberg asked for the dispatch records so he could determine which report had the proper information on it, but was told by McGovern that there were no dispatch records, according to Wolfberg’s testimony.

“I felt like I was getting the run around,” Wolfberg said.

While he ran a report to get a random sampling of the city’s records for an audit, it was “crystal clear” an audit was never done, Wolfberg said in his deposition. Wolfberg has previously testified that he only reviewed 60 records.

According to his bills, Wolfberg didn’t perform any work on the city’s case between March 23 and July 10, 2010. From July 10 to July 30, 2010 he devoted 18.1 hours to the Schultheis case.

While he never formed an opinion on the city’s billing, Wolfberg did form an informal one on the $4.5 million settlement. He was surprised at the amount based on the size of Clinton, he said.

SARAH NOLAN

Following Wolfberg’s deposition reading, Clinton accounting specialist Sarah Nolan took the stand.

She was never told to bill everything as ALS, nor did she ever upcode claims in an attempt to get the extra $40 to $50 from Medicare or Medicaid that an ALS claim yielded, she testified. Quite the contrary, she said. While she may have made mistakes, she tried to be as accurate as possible and felt comfortable that she was submitting accurate information to insurance companies and the government.

Nolan was not a certified coder and relied on the summaries prepared by the fire department for the information she entered on the claims, she testified. Patient care reports were not part of her data entry and she would not cross check them for information, she said. Further, she testified, she was not responsible for verifying the codes, but was responsible for entering correct data.

She was not trained in ambulance coding, which she mentioned to McGovern and her boss during the time under scrutiny in the False Claims Act case, former finance director Deb Neels, Nolan testified. Neels told Nolan she did not need to be trained in codes, Nolan said. She also was not trained in the ALS assessment rule.

“I determined based on the patient summary report provided by the fire department,” Nolan said.

It was not until she was deposed by Walker’s attorney, Bob Waterman, for the legal malpractice suit that she learned people billing the claims had any responsibility for checking accuracy, she said.

There was some contact with the fire department regarding the billings, Nolan testified. At times, she would contact McGovern for clarification on a diagnosis code required for the report. This happened maybe once a month, she said.

After McGovern and former fire chief Mark Regenwether met with Assistant U.S. Attorney Maureen McGuire and federal investigator Kory Ihnken in February 2009, Nolan said she was told there weren’t any problems with the billings, but was instructed to ensure a second diagnosis code was on the claims.

The next time Nolan heard about the Medicare or Medicaid billing or coding complaints was in September 2009 when Schultheis’ suit was unsealed, she testified. Her involvement in the case was limited to an initial meeting with Walker, McGovern, former city attorney Paul Walter, and Regenwether; putting together records to be sent to Walker; and a 2010 conference call with McGovern, Neels and Wolfberg, she testified.

During the conference call Wolfberg went into great detail about ALS and BLS, which Nolan testified she understood was significant because Clinton’s ALS rate was in the high 90s. Wolfberg said this was concerning, Nolan testified.

Nolan’s testimony concluded Tuesday. McGovern started his testimony Tuesday and will continue today.

- See more at: http://clintonherald.com/clinton/x2112891793/Trial-update-Ratio-not-a-benchmark#sthash.o4KInNk4.dpuf

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