Paint by Numbers Guide to Pleading Ambulance Fraud

How does an emergency medical technician support Medicare fraud claims against an ambulance company without access to billing records and other claim specifics? “Let me show you!” wrote one federal judge in Pennsylvania.

Well, perhaps not exactly. But Judge Cathy Bissoon of the U.S. District Court for the Western District of Pennsylvania did provide one whistle-blower some direction on how to plead her False Claims Act lawsuit with the specificity needed to survive early dismissal.

Pamela Lynn Scalamogna accused her former employer Steel Valley Ambulance of violating several Medicare rules and regulations, including unnecessarily transporting patients via unnecessary ambulance instead of wheelchair van. Scalamogna said Medicare ambulance transport trips were more lucrative than less intensive transport methods, and that Medicare would deny claims made for medically unnecessary ambulance transport trips.

Certainly troubling allegations, if true, but Bissoon said in a Sept. 25 ruling that Steel Valley was correct in asserting that Scalamogna didn’t adequately assert that false Medicare claims were actually submitted by the transport company. EMTs like Scalamogna often don’t have access to the details of specific Medicare claims, or at least details of a scheme to submit false Medicare claims, necessary to satisfy FCA pleading standards.

But Bissoon showed Scalamogna a way forward, citing a recent Second Circuit opinion that reversed the dismissal of another EMT whistle-blower’s complaint with remarkably similar allegations. The Second Circuit said whistle-blower Paul Fabula adequately pleaded FCA claims against American Medical Response based on allegations that he and other EMTs were told to change trip reports to support medical necessity of the purpose of qualifying for Medicare reimbursement.

Bissoon said an earlier amended complaint filed by Scalamogna without proper leave included allegations similar to those made by Fabula. Scalamogna alleged in the improperly filed complaint that her supervisors said not to include in reports statements that an ambulance transport patient could walk or use a wheelchair, because “Medicare would not reimburse for ambulance transport that could have been performed in a wheelchair van.”

Bissoon said these allegations “would establish a strong inference that claims for ambulance services were in fact submitted to the government,” and presumably defeat a subsequent motion to dismiss from Steel Valley.

Scalamogna refiled the amended complaint Oct. 2. Only time will tell if Bissoon’s assist will be enough to keep the lawsuit afloat.

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