Enforcement Update - Bad Actors Continue to Pay
Recent press releases provide notice of activities that draw the government's ire -- and result in serious criminal consequences. Focusing on these issues is a helpful exercise for any physician trying to stay within the law. The cases include:
* An Illinois physician ordered medically unnecessary tests for patients, used false diagnosis codes to justify the tests, and then submitted claims for government reimbursement. The government's evidence included testimony that the defendant administered EEGs, EKGs and other tests for an unusually high number of patients, which was perhaps the trigger to a more detailed government review of his practice. For his efforts, the defendant was given a 2-½ year prison sentence.
* Two Mississippi residents plead guilty to charges of billing Medicare for chemotherapy services that were never performed. The defendants were caught when the services billed exceeded the volume of chemotherapy drugs actually purchased from suppliers, and the activities were made worse by efforts to cover up the fraud in advance of a scheduled audit. The defendants will be sentenced in October, and face up to 20 years in prison.
* A 31-year old physician assistant in Texas plead guilty to his part in a scheme involving pre-signed prescriptions that the assistant then issued to patients -- without the physician having participated in the consultation or the decision to prescribe medicines. The fraud took the form of false representations that the physician was involved because the services would have been ineligible for government reimbursement absent the doctor's involvement. The defendant faces a maximum sentence of five years in prison.
* A Rhode Island physician's assistant was convicted of taking kickbacks in a scheme involving payments from a medical device company in exchange for prescriptions that ordered the use of that company’s devices. This violated the Anti-Kickback Law. He was sentenced to one year in prison, and ordered to pay a fine -- with his sentence having been upgraded because he lied to a grand jury and a government investigator. The investigation with respect to others is ongoing.
* A New Jersey doctor was convicted of accepting cash kickbacks in exchange for referring patients to a medical diagnostic facility, and was caught when he accepted payments from a cooperating government witness.
* Finally, this month's special award goes to a California physician who was sentenced to six years in prison for medical services provided by a health clinic. Unfortunately, the clinic provided no services. Instead, the mostly non-English speaking visitors to the clinic were paid $100 per visit for their Medicare eligibility, which the clinic then used to create false charts for tests that were never conducted -- and submitted these as claims to Medicare. Compounding the problem, the defendant tried to flee to Canada with cash, a fake passport and a bottle of hair dye. Needless to say, the sentencing judge did not find her sympathetic. In fact, the judge made a point of emphasizing the defendant's exemplary education, finding a lack-of-knowledge defense ridiculous. (Other participants in the conspiracy received extended prison time or still await sentencing).
These cases provide lessons for practicing physicians. First, assume the government will be reviewing records of the tests administered to patients, and ensure that all tests are medically necessary. Next, it also may be advisable to periodically compare the quantity of drugs utilized to the services rendered to ensure that there is a reasonably relationship between the two. Third, any offer to provide remuneration in exchange for services or referrals should be a "red flag" for fraud. Finally, and perhaps most importantly, any activities that are handled by others should be periodically examined -- preferably without advance notice lest a criminal actor hide his/her tracks -- to make sure that others are not submitting false claims without approval. Otherwise, you might be the next physician whose education renders a lack-of-knowledge claim incredible.
