or on behalf of the provider describes by code the service rendered and constitutes the provider's claim for such service. The submission of a claim on the HCFA 1500 form is a certification by the provider to the government of the correctness of the information submitted and, among other things, that the services were performed by the provider, and that the provider will maintain "such records as are necessary to disclose fully the extent of the services provided. . . ." See Government Exh. 5.
The government in its complaint alleges both improper billing for services provided and the provision of medically unnecessary services. The latter of these two claims will be addressed first.
The record discloses that Dr. Krizek is a capable and competent physician. Dr. Krizek was originally trained in Prague, in what was then Czechoslovakia, at the Charles University School of Medicine. Dr. Krizek also received a medical degree from Rudolf's University, in Vienna, Austria. Dr. Krizek came to the United States in 1968, where he did a residency at Beth Israel Hospital in New York City. He arrived in the Washington, D.C. area in the early 1970's where he has been engaged in the practice of psychiatry for approximately 21 years. The trial testimony of Dr. Krizek, his colleagues at the Washington Hospital Center, as well as the testimony of a former patient, established that Dr. Krizek was providing valuable medical and psychiatric care during the period covered by the complaint. The testimony was undisputed that Dr. Krizek worked long hours on behalf of his patients, most of whom were elderly and poor.
Many of Dr. Krizek's patients were afflicted with horribly severe psychiatric disorders and often suffered simultaneously from other serious medical conditions. For example, one of the seven representative patients had paranoid psychosis and organic brain dementia, coupled with a series of other medical problems including colon cancer, diabetes, herpes, and viral encephalitis. Another patient suffered from chronic depression and had accompanying delusions. A third had a history of repeated psychiatric hospitalizations, was in an acute schizophrenic state, and also suffered from epilepsy. A fourth patient suffered from suicidal and assaultive behavior, hallucinations, paralysis of the left-side of the body, and was an intravenous cocaine and heroin user.
The government takes issue with Dr. Krizek's method of treatment of his patients, arguing that some patients should have been discharged from the hospital sooner, and that others suffered from conditions which could not be ameliorated through psychotherapy sessions, or that the length of the psychotherapy sessions should have been abbreviated. The government's expert witness's opinions on this subject came from a cold review of Dr. Krizek's notes for each patient. The government witness did not examine or interview any of the patients, or speak with any other doctors or nurses who had actually served these patients to learn whether the course of treatment prescribed by Dr. Krizek exceeded that which was medically necessary.
Dr. Krizek testified credibly and persuasively as to the basis for the course of treatment for each of the representative patients. The medical necessity of treating Dr. Krizek's patients through psychotherapy and hospitalization was confirmed via the testimony of other defense witnesses. The Court credits Dr. Krizek's testimony on this question as well as his interpretation of his own notes regarding the seriousness of each patients' condition and the medical necessity for the procedures and length of hospital stay required. The Court finds that the government was unable to prove that Dr. Krizek rendered services that were medically unnecessary.
On the question of improper billing or "up-coding", the government contends that for approximately 24 percent of the bills submitted, Dr. Krizek used the CPT Code for a 45-50 minute psychotherapy session (CPT Code 90844) when he should have billed for a 20-30 minute session (CPT Code 90843). The government also contends that for at least 33 percent of his patients, Dr. Krizek billed for a full 45-50 minute psychotherapy session, again by using CPT code 90844, when he should have billed for a "minimal psychotherapy" session (CPT 90862). These two latter procedures are reimbursed at a lower level than 90844, the 45-50 minute psychotherapy session, which the government has referred to as "the Cadillac" of psychiatric reimbursement codes.
The primary thrust of the government's case revolves around the question whether Dr. Krizek's use of the 90844 CPT code was appropriate. For the most part, the government does not allege that Dr. Krizek did not see the patients for whom he submitted bills. Instead, the government posits that the services provided during his visits either did not fall within the accepted definition of "individual medical psychotherapy" or, if the services provided did fit within this definition, the reimbursable service provided was not as extensive as that which was billed for. In sum, the government claims that whenever Dr. Krizek would see a patient, regardless of whether he simply checked a chart, spoke with nurses, or merely prescribed additional medication, his wife or his employee, a Mrs. Anderson, would, on the vast majority of occasions, submit a bill for CPT code 90844--45-50 minutes of individual psychotherapy.
In presenting its case that Dr. Krizek did not provide the billed-for services as required by the CPT, the government contends that the definition of the 90844 code requires 45-50 minutes of "face-to-face " contact with the patient. By example, if a doctor were to spend 10 minutes reviewing a patient's file and talking to nurses about the patient's condition, then spend 20 minutes in a face-to-face psychiatry session with the patient, and finally take an additional fifteen minutes after the session to consult with the patient's spouse or prescribe medication, this would, according to the government, count only as a 20-30 minute individual psychotherapy session, to be billed as code 90843. Under the government's interpretation of the code, even if as much as an hour of a physician's time is devoted to a patient's case, with half that time spent in a face-to-face psychotherapy session and the rest spent on related services, the doctor is only permitted reimbursement under the 90800 series of codes for the 30 minutes spent face-to-face. The 90800 series of codes is described as follows in the documents sent by PBS to the Krizeks during the relevant time period:
Code Description of Services
90841 Individual medical psychotherapy by a
physician, with continuing medical diagnostic
evaluation, and drug management when
indicated, including insight oriented,
behavior modifying or supportive
psychotherapy; time unspecified.
90843 Approximately 20 to 30 minutes.
90844 Approximately 45 to 50 minutes.
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