Medicare E&M Upcoding Whistleblower: A Florida Price Armstrong FCA Case

A resolved False Claims Act matter involving a Florida pulmonary practice offers a clear illustration of how Medicare E&M upcoding whistleblower cases develop — from an insider’s observation of questionable billing patterns to a federal civil settlement. This article examines what happened, how the qui tam mechanism worked, and what individuals who observe similar conduct at their own organizations should understand before taking action.

Evaluation and Management codes sit at the center of routine outpatient Medicare billing, and the government’s enforcement record shows that inflating those codes — even at a single small practice — can draw federal scrutiny. The case discussed here, which we filed on behalf of our client, United States ex rel. v. Pulmonary Associates of Brandon, P.A., Case No. 8:23-cv-382-KKM-NHA (M.D. Fla.), is one example of how that scrutiny plays out.

What Is Medicare E&M Upcoding and Why Does It Draw False Claims Act Scrutiny?

Medicare E&M upcoding refers to the alleged practice of submitting claims under higher-level Evaluation and Management billing codes when the underlying office visit or outpatient encounter either did not meet the documentation requirements for those codes or was not medically necessary at the billed level. According to the Department of Justice’s September 10, 2026 announcement, the government contended that the services at issue “were medically unnecessary and the claims in issue should have been properly submitted under a lower E&M code.” Under 31 U.S.C. § 3729, any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval is liable to the United States Government for a civil penalty plus three times the amount of damages the Government sustains.

E&M codes reflect the complexity and medical necessity of a patient encounter. A level-five established-patient visit, for example, commands a higher reimbursement than a level-two visit, and the difference is meaningful when multiplied across hundreds or thousands of claims. HHS-OIG treats outpatient E&M billing patterns as an active enforcement priority, and the Brandon case demonstrates that smaller practices billing Medicare — not only large hospital systems — fall within the scope of that enforcement activity.

A Florida Pulmonary Practice Agrees to Pay $419,410 to Resolve Upcoding Allegations

Pulmonary Associates of Brandon, P.A., of Brandon, Florida, agreed to pay $419,410 to resolve allegations that it violated the False Claims Act by submitting Medicare claims under E&M codes that did not accurately reflect the services rendered. The government alleged that the underlying services were medically unnecessary at the billed level and should have been submitted under lower E&M codes. The alleged conduct spanned from January 2017 through March 2020. Every False Claims Act matter is different; results depend on the specific facts of each case, and no similar outcome is implied.

The case was brought forward through the qui tam provisions of the False Claims Act — the same mechanism that underlies hospital billing fraud claims under the False Claims Act more broadly. U.S. Attorney Gregory W. Kehoe stated: “The submission of false and medically unnecessary claims to Medicare for office visits compromises the integrity of our nation’s federal health care programs and will not be tolerated.” It is important to note that the settlement resolves allegations only; there has been no determination or admission of liability by Pulmonary Associates of Brandon.

The Role of the Whistleblower: How a Former Employee Initiated the Case

The relator — the private individual who filed suit on behalf of the United States — was a former employee of Pulmonary Associates of Brandon. Under the qui tam provisions of the False Claims Act, a private party may bring a civil action for a violation of 31 U.S.C. § 3729 for the person and for the United States Government, and may receive a portion of any recovery.

Under 31 U.S.C. § 3730(d)(1), where the government proceeds with the action, the relator shall receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement, depending on the extent to which the person substantially contributed to the prosecution of the action. Where the government declines to intervene and the relator proceeds, 31 U.S.C. § 3730(d)(2) provides that the relator shall receive an amount that the court decides is reasonable, but not less than 25 percent and not more than 30 percent.

The relator’s status as a former employee is significant. It illustrates that individuals who observed questionable coding practices before or after leaving a position may be in a position to bring a qui tam action — not only current employees. The matter was investigated by the U.S. Department of Health and Human Services – Office of Inspector General (HHS-OIG) and handled by Assistant U.S. Attorney Kelley Howard-Allen of the Middle District of Florida.

Patterns That May Signal Medicare E&M Upcoding in a Medical Practice

Drawing from the facts of this case, several observable patterns may indicate that a practice’s E&M billing warrants closer attention. Billing staff, coders, compliance officers, and clinicians may each be positioned to recognize these patterns before or after leaving employment.

• Consistent selection of higher-level E&M codes without supporting clinical documentation. The government alleged that Pulmonary Associates of Brandon submitted claims under codes that did not accurately reflect the services rendered — a pattern that people working in billing or coding roles may be able to observe directly.
• Management pressure to bill at higher levels regardless of what the documentation reflects. When billing decisions are driven by revenue targets rather than clinical documentation, that disconnect may be a signal worth noting.
• Sustained patterns over time. The alleged conduct here spanned from January 2017 through March 2020 — more than three years. A single anomalous claim is different from a systematic pattern; the latter is more likely to form the basis of a viable False Claims Act matter.
• Smaller practices, not only large hospital systems, can be the subject of investigation. The $419,410 settlement demonstrates that enforcement activity is not limited to large institutions or multi-million-dollar schemes. (Results in False Claims Act matters depend on each case’s facts; no similar outcome is implied.)

Someone who observes one or more of these patterns at their organization may wish to consult with an attorney who handles False Claims Act matters before taking any action. The first-to-file rule under 31 U.S.C. § 3730(b)(5) — which bars a related action based on the facts underlying a pending qui tam — can affect the viability of a claim, and timing may matter. The statute also provides remedies for retaliation against employees, contractors, or agents who engage in protected activity in furtherance of a False Claims Act action under 31 U.S.C. § 3730(h).

If practices like these look familiar from your own workplace, you can discuss what you have seen with a Price Armstrong attorney confidentially and at no cost. Call (888) 670-9542 or use the secure evaluation form below.

If practices like these look familiar from your own workplace, you can discuss what you have seen with a Price Armstrong attorney confidentially and at no cost. Call (888) 670-9542 or use the secure evaluation form below.

Frequently Asked Questions

What is an E&M upcoding False Claims Act case?

An E&M upcoding False Claims Act case arises when a provider is alleged to have submitted Medicare claims under higher-level Evaluation and Management codes than the services rendered or documented would support. Under 31 U.S.C. § 3729, knowingly presenting a false or fraudulent claim for payment to the United States may give rise to civil liability. The Brandon case, in which Pulmonary Associates of Brandon agreed to pay $419,410, illustrates how such allegations are resolved through civil settlement. Every False Claims Act matter is different; results depend on the specific facts of each case, and no similar outcome is implied.

How much can a Medicare billing fraud whistleblower receive?

Under 31 U.S.C. § 3730(d), a relator in a case where the government intervenes may receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement; in a case where the government declines to intervene and the relator proceeds, the relator may receive not less than 25 percent and not more than 30 percent. The exact share depends on factors including the extent to which the relator substantially contributed to the prosecution of the action. These are statutory ranges, not assurances of any particular outcome in any individual matter.

Can a former employee file a Medicare E&M upcoding whistleblower lawsuit?

The Brandon case demonstrates that a former employee may serve as a relator in a qui tam action. A former employee of Pulmonary Associates of Brandon filed the underlying qui tam complaint on behalf of the United States. Under 31 U.S.C. § 3730(b), a person may bring a civil action for a violation of section 3729 for the person and for the United States Government. Whether a particular former employee’s observations could support a viable claim depends on the specific facts and circumstances, and consulting with an attorney who handles these matters is advisable before taking any action.