Drop the Case against Dr. Elfenbein

A Doctor Tested Thousands for COVID.
The Government Called It Fraud.

Dr. Ron Elfenbein ran an urgent care center that pivoted to mass COVID-19 testing when the pandemic hit Maryland. The federal government charged him with healthcare fraud. A federal judge reviewed the evidence and ordered him acquitted of all charges. The government appealed, and he now faces a new trial in August.

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January 2025: Judge James K. Bredar grants judgment of acquittal on all five counts. The Defendant is not guilty and will be discharged.

The Story

A Frontline Doctor During an Unprecedented Crisis

When COVID-19 hit in early 2020, the world shut down. But Dr. Ron Elfenbein didn't. As the medical director of Drs ERgent Care (DEC) in Gambrills, Maryland, he pivoted his urgent care practice to serve the overwhelming demand for COVID-19 testing. His clinics expanded to fire department sites and drive-up tents. Demand was constant, and it never eased.

The care was real. Multiple expert witnesses at trial testified that the medical services provided were medically necessary, reasonable, and prudent.

What the Clinic Did

DEC provided comprehensive COVID-19 testing with a provider evaluation at each visit. Patients filled out detailed registration paperwork, had their vitals taken, received a rapid test and PCR test, interacted with a medical provider, and received follow-up calls with results and care guidance.

Why It Mattered

This was a global pandemic with an unknown, potentially deadly virus. CMS and the CDC actively encouraged providers to conduct evaluation and management visits alongside COVID testing. The government itself wanted doctors to assess, counsel, and care for patients at the time of testing.

The Case

What the Government Alleged

In 2022, the U.S. Government charged Dr. Elfenbein with five counts of healthcare fraud under 18 U.S.C. § 1347. Each count represented a single patient visit in 2021. At the heart of the case was a billing dispute. DEC coded COVID-19 testing visits as "Level 4" office visits. The Government objected — yet never identified a more appropriate code, nor explained what made Level 4 incorrect.

The Government's Theory

The Government accused Dr. Elfenbein of "upcoding" — billing for a higher level of service than was actually provided. They argued that brief COVID testing encounters didn't qualify as Level 4 evaluation and management visits, and that billing them at that level constituted fraud.

On August 4, 2023, a jury found Dr. Elfenbein guilty on all five counts. He faced up to 10 years in prison per count.

But the story doesn't end there. Dr. Elfenbein moved for a judgment of acquittal, and the federal judge who presided over the trial took a hard look at the evidence the Government had actually presented.

The Ruling

Why the Judge Overturned the Verdict

After careful review of the trial record, Judge Bredar found that the Government failed to prove its case. Here are the key reasons:

  1. The coding rules were genuinely ambiguous. The Court found that the coding guidance was "unquestionably ambiguous."
  2. The Government's own expert was discredited. The Government's only expert, was unaware of multiple interim rules and guidance documents issued during the pandemic. He had to retract testimony on cross-examination and admitted he hadn't read key regulations.
  3. Defense experts confirmed the coding was appropriate. Michael Miscoe, a qualified expert in medical coding, testified that all five charged encounters were properly coded as Level 4 visits. The Court found his testimony credible and compelling.
  4. The rules authorized Level 4 coding. The Court found that the evidence at trial supported the conclusion that Level 4 billing was, in fact, supported — and no evidence was presented to show it wasn't.
  5. The Government abandoned its "medical necessity" theory. The indictment alleged the services were medically unnecessary, but the Government presented no evidence at trial that the provider visits were not medically necessary. In fact, every expert who testified confirmed the care was appropriate.
  6. You can't criminalize a reasonable interpretation of ambiguous rules. The Court held that citizens, including healthcare providers, cannot be held criminally liable for following what a technical regulation reasonably permits. When guidance is ambiguous, the Government must prove the defendant's reading was objectively unreasonable — and it didn't.
Quotes from the Ruling

Key Findings from the Court's Opinion

Chief Judge James K. Bredar, U.S. District Court for the District of Maryland
"Under the relevant law, the Defendant is not guilty, and he will be discharged."
"The evidence weighs so heavily in favor of the defendant that it would be unjust to enter judgement against him."
"There can, of course, be no crimes if the defendant complied with those rules."
"The government did not carry its burden and no reasonable jury could have so concluded."
"It is not a crime if the Government has authorized him to do it."
"The CPT Manual and the accompanying guidance are imperfect tools, and, as this case reflected, they were particularly imperfect in the context of a pandemic."
"Citizens, including healthcare providers, cannot be held to criminal account for doing only what a technical regulation is reasonably read to permit, even if to do so would seem to benefit them excessively."
"The inculpatory evidence in this case is more atmospheric while the exculpatory evidence is grounded in the actual guidance that forms the foundation of this case."
"The Government sails in shallow waters when it prosecutes a case of this type; these cases require careful navigation."
Read the Full Court Opinion
Timeline

How We Got Here

March 2020

COVID-19 pandemic hits. DEC pivots from traditional urgent care to mass COVID-19 testing. The Government issues interim rules expanding telehealth flexibility and encouraging provider evaluations alongside testing.

April – December 2020

Coding guidance changes rapidly. CMS publishes multiple interim final rules, relaxing documentation requirements and encouraging E/M visits with COVID testing. The regulatory environment is described as "unprecedented."

September 2021

The Biden administration federalizes the monoclonal antibody supply and its distribution, introducing "equity" as a criterion for allocation — a first in medical history. The policy creates immediate artificial shortages where none had previously existed. Dr. Elfenbein publicly challenges this decision on television and other media outlets, appearing as a weekly guest on CBS, Newsmax, Fox News, and Sky News, among others.

December 2021

The Biden administration halts all monoclonal antibody treatments, citing a claimed Omicron prevalence above 70% — when in reality, prevalence stands at only 20%. Thousands of infusions were canceled, leaving vulnerable patients without access to a treatment proven to reduce hospitalization and death. Dr. Elfenbein publicly rebukes the decision on Fox News and Newsmax (Fox News coverage), calling out what he describes as arrogance and carelessness on the part of the administration.

January – March 2022

The Biden administration removes the Emergency Use Authorization (EUA) from almost all of the remaining monoclonal antibodies

2022

Without warning, the U.S. Government charges Dr. Elfenbein with five counts of healthcare fraud. Each count represents a single patient visit billed as a Level 4 encounter. (Note: this is four months after publicly speaking out about the catastrophic mistakes made by the administration over the monoclonal antibodies.)

December 21, 2023

Judge James K. Bredar issues a 93-page opinion granting a judgment of acquittal on all five counts AND a new trial in case of appeal. The Court finds the Government failed to prove its case and that the evidence supports Dr. Elfenbein’s interpretation of the coding guidelines. Dr. Elfenbein is found not guilty and ordered discharged.

Late 2024

Government notifies of its desire to appeal and motions are filed.The AMA and Maryland State Medical Society file an Amicus Brief (friend of Court) with the Appeals Court on behalf of Dr. Elfenbein. This is REMARKABLE as the government is accusing Dr. Elfenbein of violating rules established by the AMA — the very organization coming to his defense.

January/February 2025

President Trump declares “Ending the Weaponization of the Federal Government” a major initiative, and Attorney General Bondi issues a memo establishing a Weaponization Working Group and outlining cases of particular interest. Dr. Elfenbein falls squarely into #7 - whistleblowers. https://www.justice.gov/ag/media/1388506/dl?inline

Early 2026

Chief Judge James Bredar recuses himself from Dr. Elfenbein’s re-trial

August 2026

Dr. Elfenbein faces a new trial

FAQ

Frequently Asked Questions

What is CPT coding and why does it matter?

CPT (Current Procedural Terminology) codes are standardized codes used by healthcare providers to bill insurance companies for services. "Evaluation and Management" (E/M) codes range from Level 1 (simplest) to Level 5 (most complex). Higher levels reflect more complex medical encounters and result in higher reimbursement. The codes are developed by the American Medical Association and are used by Medicare, Medicaid, and private insurers.

What is "upcoding"?

Upcoding means billing for a higher level of service than was actually provided. It can be a form of healthcare fraud. However, the critical question in this case was whether the Level 4 billing was actually inaccurate — and the court said the evidence supported Dr. Elfenbein’s interpretation).

Why did the coding rules change during COVID?

CMS issued multiple interim final rules during the pandemic to expand telehealth access, relax documentation requirements, and encourage providers to evaluate patients alongside COVID testing. The 2021 CPT Manual also made major structural changes to how E/M codes were selected, shifting from a three-factor model to one based on medical decision making or time. These rapid changes created genuine uncertainty about what the "correct" code was.

Was the care Dr. Elfenbein's clinic provided actually real?

Yes. Every expert who testified at trial — including the Government's own witnesses — confirmed that the medical services provided were real and medically appropriate. Every patient was a real individual — not a fabricated or phantom patient, as is typical in healthcare fraud cases. Each one consulted face to face with a licensed provider (nurse practitioner or physician assistant), received an appropriate clinical workup, underwent two types of COVID-19 tests, and was followed up with results, isolation instructions, and care guidance.

If the judge overturned the conviction, why does this site exist?

While Judge Bredar granted a judgment of acquittal, the Government appealed the ruling. The new trial is slated to begin in August 2026. Dr. Elfenbein has already endured years of prosecution, and a criminal trial before being vindicated. He now faces another trial for what, at its worst, is a simple billing dispute over 5 charts/patients. This case highlights broader concerns about the criminalization of ambiguous billing disputes, and Dr. Elfenbein continues to need support for his ongoing legal defense and to raise awareness about these issues.

What does this case mean for other healthcare providers?

This case sends a chilling signal to providers who operated under confusing, rapidly changing rules during the pandemic—rules that, even outside a public health emergency, remain far from clear. The court's opinion makes clear that ambiguous coding guidance cannot be the basis for criminal fraud charges when a provider's interpretation is objectively reasonable. But the fact that it took years and a 93-page judicial opinion to reach that conclusion shows how vulnerable providers can be.

What is the current status of the case?

In late 2024, the Court entered a judgment of acquittal and ordered Dr. Elfenbein discharged. But the Government has appealed the ruling and Dr. Elfenbein faces a new trial this August. Dr. Elfenbein's defense team remains engaged.

Support

Support Dr. Elfenbein

Even after acquittal, the legal battle has taken an enormous toll. Years of prosecution, a criminal trial, and the weight of fighting the federal government require resources. Your support helps with ongoing legal defense and raising awareness about the criminalization of ambiguous billing rules.

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