Un­re­solved cases

More hos­pi­tals ex­pected in kypho­plasty case

Modern Healthcare - - THE WEEK IN HEALTHCARE - Joe Carl­son

More than 100 hos­pi­tals around the coun­try have col­lec­tively paid $75 mil­lion to re­solve Medi­care over­billing al­le­ga­tions in a mam­moth False Claims Act case sur­round­ing the spinal surgery known as kypho­plasty—and there are likely more to come.

The le­gal bat­tle be­gin in 2005, when two for­mer man­agers at Kyphon ac­cused the com­pany of ad­vis­ing hos­pi­tals on ways to up­code their claims and get Medi­care to pay more. But af­ter the com­pany set­tled the case, also for $75 mil­lion, fed­eral in­ves­ti­ga­tors went on to tar­get a still- un­known num­ber of in­di­vid­ual hos­pi­tals.

Whis­tle-blower at­tor­ney Tim McCor­mack of Phillips & Co­hen in Wash­ing­ton said he could not comment di­rectly on whether there are un­re­solved cases, but he did cite me­dia re­ports that in­ves­ti­ga­tors have con­tacted hos­pi­tals other than those that have set­tled. “With the caveat that I can’t say whether there are ad­di­tional cases out there, if to the ex­tent that there are ad­di­tional cases, I wouldn’t be sur­prised to see a hos­pi­tal take it to trial,” McCor­mack said.

So far, no hos­pi­tal has taken a kypho­plasty case to trial, and none has ad­mit­ted wrong­do­ing. The aver­age

set­tle­ment is about $750,000, though Atrium Med­i­cal Cen­ter, Mid­dle­town, Ohio, agreed to pay $4.2 mil­lion, the largest sum in the 55 set­tle­ments an­nounced last week.

Ex­ec­u­tives at tar­geted hos­pi­tals say Medi­care pub­lished con­fus­ing rules on when the pa­tients were el­i­gi­ble for overnight hos­pi­tal care. They also note that the de­ci­sion to ad­mit pa­tients is made by physi­cians, of­ten ones not em­ployed by the hos­pi­tal.

“We are pleased to see new clar­i­fi­ca­tion of in­dus­try care stan­dards, which help physi­cians make de­ci­sions re­gard­ing kypho­plasty pa­tients,” said Ed Fish­bough, spokesman at for-profit hos­pi­tal chain HCA, which had 23 hos­pi­tals among the lat­est round of set­tle­ments.

McCor­mack, though, said the hos­pi­tals tar­geted by the law­suits “knew what they were do­ing was wrong.”

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