United States of America and State of Minnesota ex rel. Ashley Mothershed v…

Background

Ashley Mothershed worked in Mayo Clinic Ambulance's billing department during two stints: approximately November 2020 through June 2021, and approximately September 2021 through May 2022. She brought this qui tam (whistleblower) lawsuit under the federal and Minnesota False Claims Acts, alleging Mayo submitted fraudulent claims to government healthcare payors — primarily Medicare and Medicaid administered by the Centers for Medicare and Medicaid Services (CMS) — for ambulance transports.

Ambulance billing uses CMS-designated Healthcare Common Procedure Coding System (HCPCS) codes that turn on two questions: (1) whether Advanced Life Support (ALS) or Basic Life Support (BLS) services were provided, and (2) whether the transport was an emergency or non-emergency. ALS and emergency designations each allow for higher reimbursement. BLS requires at least one Emergency Medical Technician-Basic (EMT-Basic) on the vehicle. ALS billing requires either an ALS assessment (by an ALS crew, when necessitated by the patient's reported condition at dispatch) or an ALS intervention (a medically necessary procedure performed by an EMT-Advanced or EMT-Paramedic). Emergency transport billing requires that the ambulance responded immediately — beginning as quickly as possible to respond to the call — based on information available at dispatch.

Ms. Mothershed's Second Amended Complaint (SAC) alleged three fraudulent schemes: (1) billing for medically unnecessary transports, (2) upcoding non-emergency transports to emergency transports, and (3) upcoding BLS transports to ALS transports. District Judge Donovan W. Frank previously dismissed the medical-necessity theory. The two upcoding theories remain.

Prior Discovery Rulings

On Ms. Mothershed's first motion to compel, this Court (Magistrate Judge Docherty) set the temporal scope of discovery at November 1, 2018 through March 8, 2022, rejecting Ms. Mothershed's request for a 13-year window. The Court also set the substantive scope: for the emergency-upcoding theory, discovery was allowed into all upcoded emergency claims because the SAC alleged a broad scheme with specific supporting examples; for the ALS-upcoding theory, discovery was limited to instances where an EMT-Basic assessed the patient and neither an ALS assessment nor an ALS intervention was performed, because those were the only two specific examples in the SAC. The Court advised that if discovery revealed evidence of fraud outside the established timeframe, Ms. Mothershed could seek to expand it.

The Current Motion

Legal Standard

Federal Rule of Civil Procedure 26(b)(1) permits discovery of any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, considering factors such as the importance of the issues, the amount in controversy, the parties' access to information, resources, and whether the burden of discovery outweighs its likely benefit. Under Federal Rule of Civil Procedure 37(a)(1), a party may move to compel disclosure. The moving party bears the initial burden of showing relevance; the burden then shifts to the opposing party to show lack of relevance or undue burden.

Rulings

A. Temporal Scope — Denied

The Court declined to expand the discovery timeframe, reiterating that in False Claims Act qui tam cases, courts must balance avoiding deterrence of whistleblowing against preventing broad, speculative "roving commission" inquiries into billing practices. Specific instances of alleged wrongdoing anchor the permissible scope; "rote allegations of 'ongoing' illegal activity" without specific instances do not justify broader discovery.

The Court rejected Ms. Mothershed's three arguments for expansion: - Statistical similarity in claim counts between 2013 and 2018: The Court had already rejected this argument in the first discovery motion and declined to reconsider. The conclusions drawn from this data remained speculative, with no identification of specific fraudulent services or billing activities in those years. - Deposition testimony that Mayo's billing practices had not changed: Two billing specialists testified that Mayo's billing practices for ALS/BLS and emergency/non-emergency coding had not changed over their combined decades of employment (approximately 24 and 30 years, respectively). However, neither testified that those practices were fraudulent. In fact, one witness testified she had never thought Mayo billed a transport as ALS when it should have been BLS. - Consistent coding criteria and flowcharts dating to 2013 and 2006: The Court found that consistency in practices or guidelines, without evidence of noncompliance or fraud within those practices, does not warrant temporal expansion.

The Court also noted that Ms. Mothershed had not identified specific examples of fraudulent billing from the already-expanded discovery window (November 1, 2018 through November 1, 2020, the two years before she began working at Mayo), which weighed against further expansion. The Court reiterated its prior invitation: evidence of fraud outside the established timeframe would be required to expand it, and no such evidence was presented.

B. Substantive Scope of ALS-Upcoding Discovery — Denied

Ms. Mothershed sought to broaden the ALS-upcoding discovery to cover transports billed as ALS-emergent with no advanced interventions and no advanced ProQA dispatch code — a theory she argued was revealed by the 138 transports identified in emergency-upcoding discovery. The Court denied this request.

The Court found that the SAC contained no specific examples supporting this new theory. The previously permitted ALS discovery was grounded in two specific examples from the SAC; the new theory had no such grounding. The Court also found that Ms. Mothershed had not demonstrated that the 138 transports were actually billed unlawfully, nor explained why the absence of a ProQA code automatically means an ALS claim was improper. Vague characterizations of "problematic billing decisions" and "discovery has revealed issues" were insufficient.

C. Request for Production No. 35 — Denied

This request sought documents about Mayo's decision not to bill at ALS rates for transports with no ProQA code and no ALS treatments. The Court denied this request for the same reasons as the denial of the expanded ALS-upcoding discovery: the request related to the new, unsupported ALS-upcoding theory.

D. Requests for Production No. 32–34 (Internal Audit) — Kept Under Advisement

These requests sought documents about Mayo's internal audit of government payor claims. Mayo's corporate designee testified the audit occurred in late 2021 to early 2022 — within the established discovery timeframe — and was discontinued when results validated that Mayo's processes were "solid." Mayo's counsel represented that no document referencing the audit could be found prior to February 2023, but the Court found this did not conclusively establish the audit itself did not occur in 2021–2022. Witness testimony cited by Mayo about the audit's timing was inconclusive: no years were identified, and references to individuals by first name or title provided no meaningful clarity.

The Court found that if the audit did occur in late 2021 through early 2022, responsive documents could be relevant — particularly communications or reports about the reason for the audit, why it was discontinued, and its progress, all of which could bear on the fraudulent billing schemes alleged. The Court ordered Mayo to search for all nonprivileged documents responsive to Requests No. 32, 33, and 34, provide them to its counsel for review, and within 30 days of the order file a supplemental declaration specifying the dates of the audit.

Disposition

The motion is denied in part (temporal scope expansion, ALS-upcoding substantive scope expansion, and Requests for Production No. 35) and remains under advisement in part (Requests for Production No. 32–34, pending Mayo's supplemental declaration).