Chiropractors Convicted of Miscoding VAX-D Claims

Stephen Barrett, M.D.


In June 2006, Eric Topel, 34, of Allen, Texas, formerly of Destin, Florida, and his brother Christopher Topel, 44, of Wichita, Kansas, formerly of Atlanta, Georgia, were sentenced to prison for health care fraud. Each was ordered to spend 34 months in prison to be followed by 3 years of supervised release that includes 350 hours of community service. Court documents indicate that between 2003 and 2005 the Topels improperly collected nearly $2 million from Blue Cross and Blue Shield of Georgia (BCBS) by miscoding claims for patients whom they treated with Vertebral Axial Decompression (VAX-D), a nonsurgical procedure that BCBS considers experimental and unnecessary and does not cover. To execute the scheme, employees were instructed to use CPT Code 64722, which is the code for surgical nerve decompression procedures. Chirobase has detailed information about VAX-D.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA

v.

ERIC TOPEL
CHRISTOPHER TOPEL

THE GRAND JURY CHARGES THAT:

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CRIMINAL INDICTMENT

NO. 1:05-CR-388

FILED IN OPEN COURT
Aug 16, 2005

COUNTS ONE THROUGH TEN
(Scheme to Commit Health Care Fraud

1. Beginning in or about July 2003 and continuing until in or about March 2005, in the Northern District of Georgia and elsewhere, defendants ERIC TOPEL and CHRISTOPHER TOPEL, aided and abetted by others known and unknown to the grand jury, knowingly and willfully executed and attempted to execute a scheme and artifice to defraud Blue Cross and Blue Shield of Georgia, Inc. (hereinafter "Georgia BOBS"), a health care benefit program as defined in Title 18, United States Code, Section 24(b), and to obtain, by means of false and fraudulent pretenses and representations, movies and property owned by and under the custody and control of Georgia BOBS, in connection with the delivery of and payment for health care benefits, items and services, as set forth below.

Background of the Scheme

2. At all times relevant to this Indictment:

a. Defendant ERIC TOPEL was a doctor of chiropractic medicine in the state of Georgia. From in or about July 2003 through the present, defendant ERIC TOPEL owned and operated the Back Pain Institute of Albany (hereinafter "BPI-Albany"), located in Albany, Georgia. From in or about October 2003 through in or about March 2005, defendant ERIC TOPEL co-owned. and operated the Back Pa in Institute of Columbus (here inafter "BPI-Columbus").

b. Defendant CHRISTOPHER TOPEL was defendant ERIC TOPEL's brother and a doctor of chiropractic medicine in the State of Georgia. From in or about October 2003 through in or about March 2005, defendant CHRISTOPHER TOPEL, d/b/a/ DCT Enterprises, Inc., co-owned and operated BPI-Columbus.

c. A medical doctor in the state of Georgia was employed as the medical director (hereinafter the "medical director") at BPI-Albany from in or about July 2003 through in or about March 2005. The same medical doctor was a co-owner and medical director of BPI-Columbus from in or about October 2003 through on or about August 1, 2003. At least two other medical doctors were employed at various times at BPI-Albany during the period alleged in this Indictment.

d. Vertebral Axial Decompression (hereinafter "VAX-D") was a non-invasive, non-surgical procedure used in the treatment of lower back pain. The VAX-D procedure was administered to patients with the use of a motorized therapeutic table, which alternates periods of traction with periods of rest.

e. The VAX-D procedure was the primary treatment procedure administered to patients at BPI-Albany and BPI-Columbus. BPI-Albany and BPI-Columbus did not perform any surgical procedures.

f. Georgia BCBS was a private insurance company providing medical insurance for various persons residing in the state of Georgia.

g. Georgia BCBS entered into contractual agreements, known as Preferred Physician Provider Agreements (hereinafter "provider agreements"), with providers of medical services who wished to register as participating physicians with Georgia BOBS. Pursuant to the terms of the provider agreement, participating physicians were reimbursed by Georgia BOBS for covered services administered to patients who were Georgia BOBS subscribers, i.e, who had health insurance policies with Georgia BCBS. Also pursuant to the terms of the provider agreement, participating physicians agreed to submit to Georgia BOBS, on standard claim forms, all information required to properly process and adjudicate claims, including complete and accurate descriptions of the health care services performed, using procedure codes approved by Georgia BOBS.

h. Georgia SCBS did not provide coverage or reimburse participating physicians for procedures that it deemed "investigational/not medically necessary." Georgia BOBS medical policy 2.07.05, made available medical providers and the public via an internet website, stated that Georgia BCBS considered the VAX-D procedure investigational/not medically necessary.

i. The medical director entered into a provider agreement with Georgia BOBS on or about March 15, 2001, which is still in effect.

j. Medical providers such as the medical director and other medical doctors billed insurance companies for services using a standard form known as a HCFA 1500. These forms can be submitted either electronically or mailed in hard copy form. Among other things, the HCFA 1500 required the medical provider to identify the dates on which services were rendered, the specific services provided, identified by a Current Procedural Terminology (CPT) code or a Healthcare Common Procedure Coding System (HCPCS) code, and the identity of the medical provider performing the services.

k. The Physicians Current Procedural Terminology Manual (the "CPT Manual"), a publication of the American Medical Association, contained a listing of descriptive terms - and identifying codes for reporting and billing medical services and procedures, which had to be included in each claim to designate the particular service provided to a patient on a particular date. The CPT Manual provided a uniform language of medical services to allow reliable nationwide communication among medical providers, patients and insurers. 1t assigned numeric codes, commonly known as CPT codes, for virtually all medical, surgical and diagnostic services, to be used in identifying for the insurance company the nature and level of the service being performed.

1. HCPCS is a standardized coding system that includes the CPT codes, and also includes additional codes to identify products, supplies, and services not included in the CPT codes. These additional codes were developed because insurers cover a variety of services, supplies and equipment that are not identified by CPT codes. These additional codes consist of a single alphabetical letter followed by four numeric digits. The HCPCS codes with the alphabetical letter “S” are used by private insurers to report drugs, services, and supplies for which there are no national codes, but for which codes are needed by the private sector to implement policies, programs, or claims processing. HCPCS codes, like CPT codes, identify for the insurance company the nature and level of the service being performed.

m. It is the responsibility of the medical provider submitting a HCFA 1500 to select the CPT code or HCPCS code that describes the procedure performed to the highest level of specificity.

n. In order to obtain reimbursement for medical services provided at BPI-Albany and BPI-Columbus, employees of BPI-Albany and BPI-Columbus placed CPT codes for each service provided on a HCFA 1500, which was then submitted to the health care benefit programs such as Georgia BOBS, which relied on those CPT codes when paying the claims. The HCFA 1500 was submitted to Georgia BCBS under the name of a medical director or, in the case of BPI-Albany, the medical director or another medical doctor.

o. In most situations, the insurance company received these claims and paid the medical clinics based on the CPT code or HCPCS code submitted. Typically, the insurance company processed these claims through a computer, and based on the codes submitted, the insurance company electronically computed the payment. In some instances, the insurance company requested more information from the patient charts, and sent a letter requesting medical records or documentation with regard to the claim.

p. Georgia BOBS had a mail service contract with Dependable Mail Service ("DMS"), which handled the bulk mailing of all checks for payment of claims submitted by medical providers to Georgia BOBS. All Georgia BOBS checks for payment of claims were issued in Columbus, Georgia and transported by DMS to Atlanta, Georgia, and were mailed by DMS from its Atlanta, Georgia mail distribution center to the medical providers. Hence, all checks for claims based on HCFA 1500 forms submitted by BPI-Albany and BPI-Columbus to Georgia BCBS were mailed to BPI-Albany and BPI-Columbus from Atlanta, Georgia.

q. The HCPCS code assigned to the VAX-D procedure was S9090 - Vertebral Axial Decompression. Georgia BOBS did not reimburse participating physicians on the basis of HCFA 150 forms that identified S9090 as the procedure that was performed.

r. CPT code 64722 is a surgical code, found in the "Surgery/Nervous system" section of the CPT Manual, and applies to decompression of unspecified nerves. Georgia BOBS did reimburse participating physicians on the basis of HCFA 1500 forms that identified 64722 as the procedure that was performed. Description of the Scheme

3. Defendants ERIC TOPEL and CHRISTOPHER TOPEL, knowing that many insurers, including Georgia BCBS, did not reimburse medical providers for the VAX-D procedure, caused BPI-Columbus, and defendant ERIC TOPEL caused BPI-Albany, to bill Georgia BCBS for the VAX-D procedure, and to conceal from Georgia BCBS that VAX-D was the procedure being billed.

4. Defendants ERIC TOPEL and CHRISTOPHER TOPEL instructed employees of BPI-Columbus to use CPT code 64722 on claims submitted to insurance companies for reimbursement of the VAX-D procedure, although defendants ERIC TOPEL and CHRISTOPHER TOPEL knew that the VAX-D procedure was not correctly or accurately billed under that code. Defendant ERIC TOPEL gave the same instructions to employees of BPI-Albany.

5. Defendants ERIC TOPEL and CHRISTOPHER TOPEL instructed employees of BPI-Columbus that they were not to mention VAX-D when communicating with insurance companies, because insurance companies would not reimburse BPI-Columbus for the VAX-D Procedure. The BPI  Columbus employees were instructed to refer to the VAX-D procedure as lumbar decompression. Defendant ERIC TOPEL gave the same instructions to employees of BPI-Albany.

6. A VAX-D manual at BPI-Albany contained standard forms to record patient progress notes, labeled "Technician Progress Notes VAX-D Treatment Record." Defendant ERIC TOPEL instructed an employee of BPI-Albany to alter the form by white-ing out the word "VAX-D," and then to make copies of the altered form for use in patient files. Defendant ERIC TOPEL instructed the employee that no forms containing the word "VAX-D" should be in the patient files.

7. As a result of multiple executions of the health care fraud scheme set forth in this Indictment, defendant ERIC TOPEL caused fraudulent claims in amounts totaling approximately $868,000.00 to be submitted from BPI-Albany to Georgia BOBS, resulting in the mailing from Atlanta, Georgia of reimbursement checks from Georgia BOBS to BPI-Albany in amounts totaling approximately $675,275.00.

8. As a result of multiple executions of the health care fraud scheme set forth in this Indictment, defendants ERIC TOPEL and CHRISTOPHER TOPEL caused fraudulent claims in amounts totaling approximately $633,990.00 to be submitted from BPI-Columbus to Georgia BCBS, resulting in the mailing from Atlanta, Georgia of reimbursement checks from Georgia BOBS to BPI-Columbus in amounts totaling approximately $431,250.00. Execution of the Scheme

9. On or about the dates listed in each count below, in the Northern District of Georgia and elsewhere, defendants ERIC TOPEL and CHRISTOPHER TOPEL knowingly and willfully executed the aforesaid health care fraud scheme by causing to be submitted to Georgia BOBS fraudulent claims for reimbursement for VAX-D treatment performed at BPI-Columbus, which were paid by Georgia BOBS:

COUNT

SERVICE
DATE

CLAIM
SUBMITTED

PATIENT
INITIALS

DATE
PAID

AMOUNT
BILLED

AMOUNT
PAID

1 4-15-04 4-19-04 T.E. 4-23-04 $295.00 $280.00
2 6-3-04 6-28-04 N.A. 7-23-04 $295.00 $265.00
3 4-27-04 4-30-04 B.M, 5-7-04 $295.00 $236.00
4 6-8-04 7-1-04 E.W. 7-9-04 $295.00 $236.00
5 10-19-04 10-28-04 M.C. 11-5-04 $295.00 $236.00

10. On or about the dates listed in each count below, in the Northern District of Georgia and elsewhere, defendant ERIC TOPEL knowingly and willfully executed the aforesaid health care fraud scheme by causing to be submitted to Georgia BCBS fraudulent claims for reimbursement for VAX-D treatment performed at BPI-Albany, which were paid by Georgia BCBS:

COUNT

SERVICE
DATE

CLAIM
SUBMITTED

PATIENT
INITIALS

DATE
PAID

AMOUNT
BILLED

AMOUNT
PAID

6 7-26-04 7-29-04 W.M 8-9-04 $295.00 $295.00
7 6-10-04 6-16-04 E.T 6-21-04 $295.00 $265.00
8 8-19-04 8-24-04 G.F. 8-30-04 $295.00 $236.00
9 1-13-04 2-24-04 B.T. 3-3-04 $295.00 $236.00
10 3-29-04 5-3-04 S.E. 5-24-04 $295.00 $236.00

All in violation of Title 18, United States Code, Sections 1347 and 2.

Asset Forfeiture

1. The allegations of Counts One through Ten of this Indictment are realleged and incorporated by reference for the purpose of alleging forfeitures to the United States of America pursuant to the provisions of Title 18, United States Code, Section 982.

2. Upon conviction of the offenses alleged in Counts One through Ten, defendant ERIC TOPEL shall forfeit to the United States, pursuant to 18 U.S.C. § 982(x)(7), all property, real and personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the Federal health care offenses set forth above in violation of Title 18, United States Code, Section 1347, as defined in Title 18, United States Code, Section 24, including but not limited to the following:

a. A sum of money equal to $1,065,240 in United States

b. The funds deposited in the following bank accounts, and all interest and property traceable thereto, in that such funds in aggregate constitutes the gross proceeds traceable to the commission of the scheme to defraud:

Account Holder

Bank

Account Number

Eric Topel and D. T. Suntrust XXXXXX3772
Back Pain Inst. of Columbus Suntrust XXXXXXXXX3075
Back Pain Inst. of Albany. First Nat'l Bank of Georgia XXXXX6418
Topel Chiropractic, Inc. First Nat'l Bank of Georgia XXXXX3670

c. Personal property listed below being property which constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the aforestated Federal health care offenses: (1) 2005 Land Rover, registered to the Back Pain Institute of Albany, Vehicle Identification Number SALAA2 5 415A343856

3. Upon conviction of the offenses alleged in Counts One through Five, defendant CHRISTOPHER TOPEL shall forfeit to the United States, pursuant to 18 U.S.C.. § 982(a)(7), all property, real and personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable t o the commission of the offense, including but not limited to the following:

a. A sum of money equal to $431,250 in United States currency, representing the amount of proceeds obtained as a result of the scheme to defraud, for which the defendants are jointly and severally liable.

b. The funds deposited in the following bank accounts, and all interest and property traceable thereto, in that such funds in aggregate constitutes the gross proceeds traceable to the commission of the aforestated Federal health care offenses:

Back Pain Inst. of Columbus Suntrust XXXXXXXXX3075
DCT Enterprises, Chris Topel, and D.S. Peachtree Bank XXXXX2864

4. The types of property which may be forfeited to satisfy the claim include, but are not limited to, the foregoing property, any property, real or personal, traceable to the foregoing property and any "substitute" property, as defined in Title 18, United States Code, Section 982{b}, of a value equal to any and all assets identified specifically, which a) has or have been transferred, sold or deposited with a third party; b) which cannot be located by due diligence; c) which has or have been placed beyond the jurisdiction of this court; d) which has or have been substantially diminished in value; or e) which has or have been co-mingled with other property and cannot be divided without difficulty.

A TRUE BILL

DAVID E. NAHMIAS UNITED
STATES ATTORNEY

TERESA D. HOYT
ASSISTANT UNITED STATES ATTORNEY
404/581-6389
Georgia Bar No. 218375
600 U.S. Courthouse
75 Spring Street, S.W.
Atlanta, GA 30303

JUSTIN S. ANAND
ASSISTANT UNITED STATES ATTORNEY
404/581-6322
Georgia Bar No. 016116

This page was posted on June 16, 2006.

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