The Clinton Herald, Clinton, Iowa

October 18, 2013

City: Rules akin to 'Jaberwocky'

By Katie Dahlstrom Herald Assistant Editor
The Clinton Herald

---- — DAVENPORT — Medicare regulations are akin to Lewis Carroll’s nonsense poem “Jaberwocky,” an attorney representing the city of Clinton in its legal malpractice suit told jurors Thursday.

As Mike Hannafan gave his rebuttal closing argument Thursday, he brandished a copy of Carroll’s “Through the Looking Glass, and What Alice Found There” in an effort to convey the complexities and idiosyncrasies of Medicare regulations at the center of the city’s legal malpractice case and its underlying Medicare fraud case.

The trial in the city’s legal malpractice case against attorney Michael Walker and his law firm Hopkins and Hubener ended Thursday with Walker’s attorney Bob Waterman delivering his closing argument and Hannafan giving his rebuttal.

Walker is accused of failing to properly analyze a 2009 Federal False Claims act case against the city that was filed by former Clinton firefighter Timothy Schultheis. Schultheis claimed the city knowingly submitted false ambulance claims to Medicare and Medicaid in order to obtain higher reimbursements. His case was filed under seal in Sept. 2008 and unsealed a year later after the federal government declined to intervene.

As a result of Walker’s negligence, the city alleges it rushed into a $4.5 million settlement with Schultheis and the U.S. Department of Justice.

Hannafan refuted the accusation the city knew the claims it was submitted were false, reminding the jury of the various manuals and materials EMS Director Andrew McGovern used to determine how to code ambulance reports as advanced life support or basic life support as well as the spot checks and audits McGovern and the department’s medical director performed. During trial the city and the defense argued the county did not have a dispatch protocol in place for the city to apply the ALS assessment rule as it did. Hannafan said McGovern felt the county had a dispatch protocol during the period under scrutiny in the Schultheis case.

The city did not act in deliberate ignorance, Hannafan said, but had to work with complicated regulations that often changed.

His rebuttal also focused on testimony from Walker’s expert witnesses, JR Henry and Lamar Blount, who said 18 percent of the city’s claims from 2002 to 2009 were erroneously billed as ALS instead of BLS. Just because they were incorrectly billed did not mean they were false, Hannafan said. Further, he argued, how could Henry call the city’s claims non-compliant when he was not an Iowa paramedic or familiar with the scope of practice that applies to paramedics?

Hannafan also turned his attention to the city’s accounting specialist Sarah Nolan, who was the person submitting the claims to Medicare and Medicaid. Nolan testified that she was not trained as a coder and was not told to check the reports supplied from the fire department to make sure the codes matched with the narratives explaining what care was given to the patient.

“Do you think Sarah Nolan was in on some grand scheme to cheat the federal government?” Hannafan asked.

Had the Medicare fraud case gone to trial, Schultheis would have had to prove the city knowingly submitted the false claims. Hannafan pointed out innocent mistakes or negligence are not actionable under the False Claims Act, both defenses for the city if the case had gone to trial.

Hannafan then pulled out a copy of the Carroll book and recited the first two stanzas for the jury.

“Clinton’s brave firefighters and paramedics did their best to make sense of the Jabberwocky,” Hannafan said.