The Clinton Herald, Clinton, Iowa

October 15, 2013

Expert: Rule misused

By Katie Dahlstrom Herald Assistant Editor
The Clinton Herald

---- — DAVENPORT — The city of Clinton failed to understand and properly apply a rule that dictates ambulance coding, an expert hired by attorney Michael Walker testified Monday.

As the legal malpractice suit against Walker and his law firm Hopkins and Huebner entered its third week of trial, Pittsburgh-based billing and coding expert JR Henry returned to the stand where he faced a slew of questions about what he identified as claims for emergency services from the city of Clinton that didn’t comply with Medicare.

Walker represented the city in a federal False Claims Act suit brought on by former firefighter Timothy Schultheis in 2008. Schultheis alleged the city knowingly submitted false claims to Medicare and Medicaid by using the advanced life support code rather than the basic life support code in order to receive higher reimbursements.

The city claims Walker failed to properly analyze the case and his alleged negligence led to the city settling for $4.5 million in 2010. The city wants $4.67 million to cover the cost of the settlement as well as attorney and expert fees.

According a report from Henry and healthcare consultant Lamar Blount, 18 percent of 330 claims they reviewed from the city from 2003 to 2009 didn’t comply with the rules set by Medicare. Henry tied this to the city’s misuse of the ALS assessment rule, particularly in regards to the use of a emergency medical dispatch protocol.

Because the city did not work with what Henry called a Medicare compliant dispatch protocol, the city could not use the ALS assessment rule. Under the rule, the city can code ALS if it has an emergency dispatch and an ALS intervention or an ALS assessment. The city did not use ALS interventions in the claims he noted as non-compliant.

“I do not believe they can use the ALS assessment rule and they must use the condition of the patient at the scene,” Henry said.

Henry and Walker’s attorney Bob Waterman went over several manuals that stated a dispatch protocol needs to delineate between ALS and BLS, which was not the case with the policy in place in Clinton County from 2002 to 2009. Without such a protocol, the condition of the patient on the scene determines ALS or BLS, according to those materials.

Following his rundown of the issues in the documents, Henry and Waterman reviewed one of the alleged non-compliant claims that was from a patient who reported left-ankle pain. The crew did not perform an ALS intervention on the patient and Clinton County did not have an emergency medical dispatch protocol, but it was submitted as ALS. Further, the narrative on the patient care report stated the paramedics decided to “BLS” the patient, all of which led Henry to his conclusion that it was not compliant with Medicare.

“If there’s no ALS interventions performed, in my opinion, it should have been submitted at the BLS level,” Henry testified.

On his initial cross-examination, Blake Hannafan, who is representing the city, took Henry’s theory about the city’s inability to use the ALS assessment rule to task. Hannafan compared the manuals and other guiding materials to Henry’s belief that if there was no emergency medical dispatch protocol in place, the city needed to perform an ALS intervention on the patient in order to submit the claims as ALS.

Hannafan reminded Henry of EMS director Andrew McGovern’s testimony where McGovern stated he believed that what the county used from 2002 to 2009 was a dispatch protocol.

The city’s attorney also pointed out the lack of a definition for dispatch protocol in all the materials reviewed as well as the fact that Henry did not say the city knowingly failed to understand or apply the ALS assessment rule.

Hannafan moved to strike Henry’s testimony because Henry had not reviewed the emergency medical services scope of practice for Iowa as part of his review for the legal malpractice case, but judge Nancy Tabor denied that motion.


Court was adjourned early Friday so Henry could compare two exhibits, one of which was a spreadsheet of the 330 claims he reviewed as part of his work in the legal malpractice case and the other a 425-page document that was supposed to contain the documentation from the 60 of those claims he identified as non-Medicare compliant.

However, Henry testified that in his review of the documents over the weekend, he found three “issues” with the exhibits, one of which led him to reduce the number of non-medicare compliant claims to 59 because of a duplicate entry on the spreadsheet.

Documentation for one non-compliant claim was not contained in the 425-page document while some documentation for a claim he did not review as non-compliant was, Henry testified were the other two issues.

When Blake Hannafan, who is representing the city of Clinton, started to question Henry, he dug deeper into the “issues” contained in the exhibits, calling them “errors.”

Hannafan called attention to one of the claims Henry had identified as non-compliant that contained information in two places stating an ALS intervention was performed. Henry admitted he was wrong in labeling that claim non-compliant, reducing the number of non-compliant claims to 58.


Henry further testified about the duplicate reports containing different information that have been discussed since the trial started.

Based on his experience, as well as testimony from Walker, EMS Director Andy McGovern and Firehouse software representative David Stanton, Henry concluded the duplicate reports could not have been the result of a computer or software problem that caused some fields to be overwritten.

If it had been the result of a computer or software problem, there would have been entire tables of information that were different, not just the “dispatched for” field, Henry testified.

Henry said he concurred with Stanton, finding the duplicate reports “very suspicious.” The duplicate reports supported the notion that there was intentional conduct to falsify claims, he said, because someone would have had to change the codes.

These duplicate reports did not result in duplicate billing, according to prior testimony.