10/22/2015    Paul Kesselman, DPM

$83K Settlement Reached with VT Podiatrist over Medicaid Claims

Dr. Buggiani has retired and feels his life's
work and reputation have been damaged by what has
happened to him. This is a shame because in
reality he did nothing criminally wrong, yet the
Vermont Attorney General's office has chosen to make
an example of him. I know that Kevin West is
preparing a letter to be published in the
Vermont press which will outline the various
misdeeds of the VT prosecutor's office. In the
interim, I hope you will share this w/your
readers:

The Vermont attorney general's office has for
several years been on a fishing expedition in an
attempt to convict a handful of VT podiatrists
on charges of criminal fraud charges. Five
podiatrists were accused of providing patients
with devices which did not live up to the
standards of a custom fabricated UCB type foot
orthotic (L3000). These allegations were
supported by an outspoken orthotist with little
experience in coding matters and who possibly had
some personal vendetta against one or more of the
defendants.

Having provided expert witness testimony in this
case, this case turned out to be much about
nothing and caused these defendants several years
of personal turmoil. Dr. Buggiani in particular
needed to spend a significant amount of money out
of his own pocket for defense counsel and expert
witness testimony.

As it turns out, none of the accused provided
anything substandard and no proof of fraud could
be substantiated by any government attorney or
their O&P witnesses. None of the accused provided
anything but a custom fabricated foot orthotics.

Overwhelming evidence was presented which
contradicted the governments case and was
overwhelmingly contrary to what their star
witness provided. Apparently, the devices
provided to these patients were all manufactured
by a single well-known nationwide orthotics
laboratory which did in my opinion meet the
standards of an L3000.

The device presented as an L3000 by the
government was standard of care more than 65
years ago and prior to any of Dr. Root's theories
on modern bio mechanics being published.
Certainly no one could expect to practice
medicine of any specialty using standards more
than 1/2 century old and would be hung out to dry
in case of professional malpractice had they done
so and ignored current standards of medical
practice. Unfortunately this is not the first
(nor likely will it be the last) when gov't
prosecution or policies are based on antiquated
standards.

The VT Medicaid attorney's office dropped the
fraudulent charges against the five accused and
simply asked for money back on one orthotic claim
from one of the defendants ('$300) because of a
discrepancy regarding the date of delivery. This
too was a settlement based on a technicality with
no admission of criminal fraud or abuse.

As for Dr. Buggiani, the remaining sole
defendant, Medicaid found a technicality
regarding the amount charged on each device.
Apparently the contract which most podiatrists
sign with VT Medicaid entitles them to only have
to be paid the least amount paid by any other
carrier contracted who is contracted by the
podiatrist. Apparently, the contract also allows
Vt Medicaid to review the claims and fees paid by
other insurance carriers.

There are several lessons to be learned from this
case:

1) None of the defendants were found guilty of
any criminal actions.

2) Dr. Buggiani was caught up in a business
practice due to a technical and unfair
contractual stipulation which Dr. Buggiani (and
many of us may have) unwittingly signed.

3) Read your contracts and be sure that this type
of contractual stipulation is not in other
contracts with other insurance carriers. Not only
is this contract stipulation unfair, it is almost
impossible to keep tract of with so many provider
contracts and with payments and fee schedules
constantly changing. It would also mean that the
fee schedule you are provided with for a specific
carrier would be unenforceable should they find
you've been paid less by another carrier. You
could be forced to open your books to all
carriers about your negotiated rates with others.
Again an unfair business practice.

4) Podiatrists have prevailed at almost every
case where they were accused of incorrectly
billing for L3000, where in fact custom
fabricated functional orthotics were produced
(the exception to this might be a functional
device for a dress shoe which might be best coded
as L3010 or L3020).

Other cases reviewed include those involved
Medicaid in California, Blue Cross in Michigan
and Maryland and NYS. State associations and
their insurance committees are well advised to
discuss this with their members and be prepared
to defend these types of allegations.

5) APMA's white paper on custom foot orthotics
produced in cooperation with the American
Orthotic and Prosthetic Association (AOPA) as
well as the Pedorthic Foot Care Association (PFA)
should be downloaded by every member of these
associations. This cooperative paper was produced
after many years of discussion. Its use should go
a long way in providing insurance carriers with
guidance on the modern interpretation of custom
foot orthotic coding. It can also be used to
refute any allegations brought by an insurance
carrier or any wayward member of those
associations willing to testify to the contrary.

6) Last, but most important, when shopping for
malpractice insurance, be sure they provide a
substantial amount of legal defense for both
legal counsel and expert witness. Some carriers
provide only a minimal amount of legal expertise
defense funding but no expert witness funding.
Others provide no legal defense and expert
witness. Carriers which provide this type of
funding often do so with minimal if any
additional charges to professional malpractice
premiums. Its one of the hidden benefits which
may pay dividends in this hostile atmosphere
created by payers.

Paul Kesselman, DPM, Woodside, NY

Other messages in this thread:

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10/28/2015    Jeff Kittay, DPM

$83K Settlement Reached with VT Podiatrist over Medicaid Claims (J Kevin West, Esq.)

The particulars of this case are quite
reminiscent of one perpetrated by Medicare more
than a decade ago on DPMs in New England. Those
of us who saw patients in nursing homes(NH)
received a letter indicating that the code we had
been using for an initial examination in the NH
was NOT the one we should have been using, but
instead a different one that reimbursed at a
lower level.

My bill from Medicare was slightly more than $8K,
payable immediately, subject to offset of future
billings if not paid in 30 days. I called
Medicare for an explanation and was informed that
I was "one of the small fish, some of your
colleagues owe more than $150K," which reassured
me no end. I was also informed that this was an
anti-fraud investigation of all DPMs in New
England and that I should not take it personally.

There were two women working 40 hours/week
involved in this investigation. I spoke with
these investigators several times in the ensuing
weeks and was eventually told that rather than
have us pay the take backs all at once, which had
generated much protesting from the DPMs
concerned, Medicare in their kindness and wisdom
would reprocess all the claims involved, at the
lower reimbursement level, and that we would then
"only have to pay back the difference,' in my
case about $2,500. Since at the time I had a
spare $2,500 that I was going to throw away
anyway, I instead sent in to Medicare.

Further discussion with the two nice ladies at
Medicare revealed something more interesting. I
asked them, if after all their work, which had
been going on for many weeks, whether the
investigation was at least financially useful to
the government. One of them informed me that
collections were "running about 2 to 1." I said,
"well at least you're making money for all the
effort." "Oh no doctor" she said, "we get back
about $1 for each $2 we spend." I asked her to
repeat it as I found it difficult to believe I
had heard correctly, and she did so. I then
asked if it wouldn't have been cheaper to send
all of us letters warning us to not use the code
involved and that if we did so, we might face
fraud charges. She admitted that this was true,
but said "This is what our supervisor told us to
do."

I'm always glad to find examples of government
(my) money well spent.

Jeff Kittay, DPM, Boston, MA

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10/26/2015    J Kevin West, Esq

$83K Settlement Reached with VT Podiatrist over Medicaid Claims (Paul Kesselman, DPM)

Recent announcements and publicity by the State
of Vermont have misrepresented and mis-
characterized the allegations against, and the
settlement reached with, Frank Buggiani, DPM.

In early 2012, the State began a civil
investigation of Dr. Buggiani, alleging that he
was providing orthotics to Medicaid patients that
were not medically necessary. Medical and billing
experts retained by Dr. Buggiani effectively
refuted these allegations and the State failed to
pursue them. Having failed to show that Dr.
Buggiani’s prescribing of orthotics was in any
way improper, the State turned to a technicality
in Vermont Medicaid Regulations. Under this
technicality, doctors must bill Medicaid at their
lowest rate, even if commercial insurers pay a
higher amount for exactly the same service. Dr.
Buggiani had no knowledge of this technicality
during the more than 34 years in which he was a
highly respected care provider for Vermont
Medicaid patients. Medicaid paid Dr. Buggiani at
his normal billing amount for years without
raising any question.

Rather than engage in protracted and expensive
litigation, Dr. Buggiani opted to settle with the
State and simply pay back part of the monies
improperly paid by the State.

Contrary to the State’s assertions, this is not a
“fraud case.” There was never any proof or
admission of fraud. There were no criminal
allegations and the Court made no findings
against Dr. Buggiani. There were no penalties or
fines imposed by the Court. This was simply a
civil billing dispute. The only thing Dr.
Buggiani was guilty of was billing Vermont
Medicaid at the same rates as his commercial
insurance payers.

It is deplorable that the State’s attorneys, in a
vain attempt to justify spending taxpayer money
for three years of persecution of Dr. Buggiani,
have compounded their abusive conduct by
mischaracterizing this case and defaming Dr.
Buggiani’s character. The small recovery obtained
here is likely offset by the cost of this
litigation. Again, Dr. Buggiani denies any
wrongdoing and has simply settled a civil billing
dispute.

J Kevin West, Esq., Boise, ID