Psychology Expert Allowed to Opine on Ethical Billing for Neurofeedback

Defendants Gabriel Adam Alexander Luthor and Elizabeth Christine Brown were indicted on six counts of aiding and abetting wire fraud and one count of money laundering.

Defendants filed motions to exclude or limit the testimony of the Government's proffered experts, Daniel Coney and Dr. Leslie Sherlin.

Medical Billing Expert Witness

Daniel H. Coney is a Fraud Investigations Advisor specializing in Medicare and Medicaid for SafeGuard Services, LLC. In this role, he "provides forensic examinations, assists with case development, and provides trial support for the Department of Justice and U.S. Attorney's Offices." Prior to this role, Coney spent over 30 years as a federal agent investigating complex financial fraud cases, including 13 years (1991-2004) with the U.S. Department of Health and Human Services, uncovering provider fraud in the Medicare and Medicaid programs. In his role with the Department of Health and Human Services, Coney investigated numerous instances of alleged fraudulent billing by medical providers, including instances where providers submitted claims to Medicare for services different than those provided or for services that were never provided at all. Coney holds certifications in medical billing, medical coding, and healthcare compliance.

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Psychology Expert Witness

Dr. Leslie H. Sherlin is Assistant Professor of Psychology at Ottawa University in Surprise, Arizona. He also serves as adjunct faculty at numerous other universities, teaching coursework in psychology, psychological testing, neurofeedback, and biofeedback. He holds a Doctor of Philosophy in the areas of Psychology, Sports Psychology, and Clinical Pastoral Counseling. He is a Licensed Professional Counselor in Arizona and holds certifications in neurofeedback and biofeedback from the Biofeedback Certification International Alliance.

Sherlin possesses experience as a neurofeedback provider, as well as experience supervising students in administering neurofeedback. He has published numerous articles and given numerous lectures on neurofeedback and biofeedback and their application in clinical settings.

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Discussion by the Court

Daniel Cooney

Defendants' principal objection is that Coney is not qualified to offer testimony about medical billing or coding or to apply "any billing or coding rule to any service or claim in this case."

They pointed out that Coney obtained his certifications in billing and coding only recently. While that may be true, Coney's qualification as an expert is not tied solely to his certifications. He also has over a decade's worth of experience investigating Medicare billing fraud, the precise form of fraud alleged against Defendants. Moreover, the Government's disclosures draw sufficient links between Coney's experience and his opinions that the Court is persuaded his testimony would help the jury understand the complex evidence in this case, namely Medicare coverage and billing generally and the specific billing data and patterns at issue.

Defendants' remaining objections to Coney's testimony are unpersuasive. Defendants argued that Coney's testimony will violate Federal Rule of Evidence 704(b) by offering an opinion regarding Defendants' mental states or by otherwise telling the jury what result to reach.

But nothing in the Government's disclosures indicates that Coney will testify regarding the Defendants' mental states or that Golden Victory Medical's billing practices were in fact fraudulent. Nor did Coney's title, credentials, or accomplishments as a fraud investigator tell the jury what result to reach such that his testimony must be excluded under Rule 403, as Defendants argue. It's within the province of the jury to weigh Coney's credentials and testimony against other evidence offered at trial, including the Defendants' cross-examination of Coney. And the Court cannot say that the risk of prejudice stemming from Coney's credentials alone is so great that it substantially outweighs the potential for Coney's testimony to help the jury understand the issues in the case. Defendants' objection that Coney stands to serve only as a "summary witness or as the narrator of the Government's theory" is similarly unavailing and is mooted by the Government's disclosures.

Leslie Sherlin

The Government's expert disclosure explained that Sherlin intended to offer the following opinions:

1. That best practices for ethical billing for neurofeedback include: (a) documenting the length of neurofeedback sessions, (b) avoiding "unbundling" or adding codes which represent components already accounted for in the neurofeedback session, (c) distinguishing billing for sessions focused substantially on psychotherapy counseling from neurofeedback sessions, and (d) avoiding creative coding, upcoding, and billing CPT codes inconsistent with the therapy provided.

2. That Medicare does not broadly cover neurofeedback or biofeedback used for treatment of psychosomatic conditions, and biofeedback is generally only covered by Medicare in narrow circumstances such as biofeedback for urinary incontinence.

3. That neurofeedback practitioners should assume that neurofeedback is not covered by Medicare and that providers should not attempt to camouflage neurofeedback for purposes of Medicare billing.

4. That practitioners supervising neurofeedback performed by nonphysician practitioners or unlicensed technicians should be physically present and immediately available during the treatment.

Defendants' principal objection to Sherlin's testimony is that he is unqualified to testify about coding and billing because he has no training or certifications in coding or billing. Defendants would therefore have the Court exclude testimony from Sherlin regarding medical billing or coding.

Here, where Sherlin has extensive experience as a clinical psychologist and neurofeedback provider and supervisor, he would necessarily be knowledgeable about insurance and billing related to neurofeedback rendered in a clinical setting. Medicare billing privileges are tied to providers, often individual practitioners or physicians, not to individual coders or billers.

And because "billing privileges are not permanent" and can be "revoked or deactivated" by Medicare, providers have a specific interest in understanding billing and Medicare compliance. Sherlin has established his knowledge of neurofeedback coding and billing through years of experience, which is sufficient to qualify him as an expert on those topics. Moreover, the Court found that Sherlin's testimony would be useful in helping the jury understand neurofeedback practices and standards and billing for neurofeedback.

Defendants' other objections to Sherlin's testimony are similarly unpersuasive. Defendants argued that Sherlin's testimony would violate Federal Rule of Evidence 704(b) by offering an opinion on the Defendants' mental states or by otherwise telling the jury what result to reach. Defendants acknowledged that an expert may "describe general practices, or what is typical of a category of people, so long as the expert stops short of opining about the Defendant."

But they argued that "the Government's Notice does not describe general testimony of that kind." The Court disagreed. The Government's disclosure indicated that Sherlin will state his opinions about ethical billing for neurofeedback and how neurofeedback practitioners should handle Medicare coverage and billing. His proposed testimony does not indicate that he'll opine that the conduct of either Defendant evinces fraud or intent. Moreover, Defendants will have the opportunity to cross-examine Sherlin and offer evidence that contradicts his opinions about billing best practices. For these reasons, Sherlin's testimony does not present a Rule 704(b) problem.

Held

The Court denied the Defendants' motions to exclude or limit the expert testimony of Daniel Coney and Leslie Sherlin.

Key Takeaway

An individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.

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