A federal judge has overturned a jury verdict convicting a Maryland doctor of five counts of COVID-19 testing fraud.
In his ruling, Chief Judge James K. Bredar of the U.S. District Court for the District of Maryland said that the U.S. Department of Justice (DOJ) did not present sufficient evidence for the jury to conclude beyond a reasonable doubt that Dr. Ron Elfenbein was fraudulently “upcoding” tests and billing Medicare and other insurers for a higher level of service than what was actually provided.
Elfenbein, a proponent of early access to COVID-19 testing during the pandemic, owns the Drs ERgent Care clinic, which was operating as First Call Medical Center and Chesapeake ERgent Care (currently closed); additionally, he operated an urgent care center offering COVID-19 testing at Baltimore-Washington International Thurgood Marshall Airport.
The DOJ alleged that Elfenbein submitted $15 million in fraudulent tests performed at the urgent care centers to Medicare and other insurers, “upcoding” the tests as level 4 visits when a lower level of care was provided.
However, in his decision, Bredar noted that the current procedural terminology manual and COVID-19 coding guidance provided ambiguous information for the appropriate coding of visits; therefore, the DOJ had not presented sufficient evidence to prove beyond a reasonable doubt that the visits were falsely billed as level 4 visits.
Elfenbein had faced a maximum sentence of 10 years in federal prison for each of the five counts of healthcare fraud for which he was convicted. His attorney, Martin S. Himeles Jr., said in a statement he expects that Elfenbein will seek to have his medical license fully restored and to return to emergency medicine.
Elfenbein’s case was among those prosecuted by the Maryland U.S. Attorney’s Office as one of the national specialized COVID-19 strike forces established to investigate and prosecute COVID-19 fraud.