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“Medically Necessary” Ambulance Services Under the False Claims Act

By Shauna Itri

A non-intervened False Claims Act case filed against Medstar, an ambulance company, settled for $12.7 million on January 17, 2017.  The qui tam case was filed on October 4, 2013 in the Federal District Court of Massachusetts under the caption United States ex rel. Dale Meehan v. MedStar et als, Civil Action No. 13-12495-IT.

Many whistleblower cases brought under the False Claims Act (“FCA”) against ambulance companies involve determining if the ambulance transports were “medically necessary.”

Ambulance Services and Medicare

Medicare does not pay for any and all services furnished to beneficiaries, but only those which are “reasonable and necessary for the diagnosis or treatment of illness or injury . . . .” 42 U.S.C. § 1395y(a)(1)(A). With respect to ambulance services in particular, Medicare covers such services only “where the use of other methods of transportation is contraindicated by the individual’s condition, but only to the extent provided in regulations.” 42 U.S.C. § 1395x(s)(7).

The Medicare regulations regarding ambulance transport are set forth in 42 C.F.R. § 410.40, which is entitled “Coverage of ambulance services.”  Accordingly, the regulations in effect for ambulance transportation services  for the entire period of time covered by this Complaint provide, in relevant part:

(d) Medical necessity requirements—

1) General rule. Medicare covers ambulance services, including fixed wing and rotary wing ambulance services, only if they are furnished to a beneficiary whose medical condition is such that other means of transportation are contraindicated. The beneficiary’s condition must require both the ambulance transportation itself and the level of service provided in order for the billed service to be considered medically necessary. Nonemergency transportation by ambulance is appropriate if either: the beneficiary is bed-confined, and it is documented that the beneficiary’s condition is such that other methods of transportation are contraindicated; or, if his or her medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required. Thus, bed confinement is not the sole criterion in determining the medical necessity of ambulance transportation. It is one factor that is considered in medical necessity determinations. For a beneficiary to be considered bed-confined, the following criteria must be met:

(i) The beneficiary is unable to get up from bed without assistance.

(ii) The beneficiary is unable to ambulate.

(iii) The beneficiary is unable to sit in a chair or wheelchair.

42 C.F.R. § 410.40(d)(1).

In addition, CMS established a requirement that “nonemergency, scheduled ambulance services,” such as maintenance dialysis, are covered if “the ambulance provider or supplier, before furnishing the service to the beneficiary, obtains a written order from the beneficiary’s attending physician certifying that the medical necessity requirements of paragraph (d)(1) of this section are met.” 42 C.F.R. § 410.40(d)(2).

The Medicare Benefit Policy Manual

The Medicare Benefit Policy Manual (“MBPM”), which sets forth the rules and regulations for Medicare reimbursement, further describes the requirements for coverage of ambulance transport. For example, the MBPM states:

Medical necessity is established when the patient’s condition is such that use of any other method of transportation is contraindicated. In any case in which some means of transportation other than an ambulance could be used without endangering the individual’s health, whether or not such other transportation is actually available, no payment may be made for ambulance services. In all cases, the appropriate documentation must be kept on file and, upon request, presented to the carrier/intermediary. It is important to note that the presence (or absence) of a physician’s order for a transport by ambulance does not necessarily prove (or disprove) whether the transport was medically necessary. The ambulance service must meet all program coverage criteria in order for payment to be made.

MBPM at § 10.2.1.

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