Tag Archives: healthcare fraud

A Way to Attack Healthcare Fraud

If insurers want to mitigate risk, rather than risk their time and money with litigation, if they want to guard against fraudulent claims, if they want to protect good doctors against wrongful claims, then they should invest in sound legal counsel.

Insurers should highlight the value of retaining healthcare lawyers with the intelligence to know—and the strength to do—what is necessary to defeat false allegations of fraud or abuse. A doctor’s career can hang in the balance when defending against a professional liability claim.

Without sound counsel, our best doctors may not be able to practice medicine. Unless we work to stop fraudulent claims, or make it more difficult for fraudsters to enlist the government to pursue these claims, our healthcare system will continue to suffer. Stopping this injustice starts with healthcare lawyers in search of justice—namely, healthcare lawyers whose expertise doctors need.

See also: Proof of Value for Medical Management  

According to Fenton Law Group, which specializes in defending healthcare providers against allegations of fraud and abuse, the charges themselves have their own nuances and degrees of sensitivity.

Take the firm’s representation of Dr. Alwin Lewis (Lewis v. Medical Board) before the Supreme Court of California, regarding a purported violation of a patient’s privacy rights. Because HIPAA prevents people from delving into personal medical records, an insurer cannot muster much of a defense without access to and knowledge of the very things that would exonerate a doctor from a wrongful claim.

Bear in mind, too, that insurance companies often hire panel counsel to defend against claims of fraud. Which is not to say that all insurance companies put savings ahead of saving doctors from fraudulent claims.

Given these circumstances, doctors need effective counsel. Insurers should, in turn, at least listen to what healthcare lawyers have to say about what constitutes a smart legal strategy.

Perhaps elevating the role of defense counsel will benefit insurers, reducing the number of fraudulent claims by increasing the difficulty of bringing claims against doctors who have done nothing wrong. Perhaps hiring the right healthcare lawyers is the right thing do.

Perhaps, indeed; but until then—until the honest unite against the dishonest—we need defense lawyers who can expose fraudulent claims and dismantle claims of fraud against innocent doctors.

We cannot afford to do otherwise. Not if we want to preserve our healthcare system and protect our preferred providers of healthcare.

We cannot afford to have insurers settle all fraudulent claims, either, because we will pay the price for these payouts in higher premiums and deductibles.

See also: 4 Reasons to Join Agency Networks  

The price will come at the expense of choice, leaving us with one of two choices: less affordable care or no care at all.

We must avoid that false choice.

We must have lawyers who champion our rights. We must have lawyers who defend the rights of doctors and healthcare providers. We must have lawyers who expand our rights.

To have lawyers at the forefront of this cause is a good thing, an altogether just and necessary thing.

The Worst Doctors From 2015

This list of worst doctors came to me via email, and I thought it was too good not to post. The origin of this is a Medscape article written by Lisa Pevtzow, Deborah Flapan, Fredy Perojo and Darbe Rotach. Please read the Medscape article in full. It’s a gem. The Medscape article shows pictures of these offenders.

Here is a summary of the worst doctors:

1) In July, Farid Fata, MD, was sentenced to 45 years in prison in Detroit for administering excessive or unnecessary chemotherapy to 543 patients. Some of them he deliberately misdiagnosed with cancer. In addition to enduring needless chemotherapy, the patients suffered anguish at the possibility of death. The massive criminal scheme netted at least $17 million from Medicare and private insurers.

2) Ophthalmologist David Ming Pon, MD, was found guilty in October of cheating Medicare by pretending to perform procedures on patients who did not need them. A federal jury convicted Dr. Pon on 20 counts of healthcare fraud. The scam netted Dr. Pon more than $7 million, according to the Department of Justice.

3) Joseph Mogan III, MD, was sentenced to about eight years in prison in March for operating two “pill mills” in suburban New Orleans. He gave out illegal prescriptions for narcotics and other controlled substances on a cash-and-carry basis. Dr. Mogan might have received a longer sentence had he not previously testified against a former New Orleans police officer who gave advice on how to operate under the radar of law enforcement. Prosecutors said the officer helped Dr. Mogan and his co-operator, Tiffany Miller, because Miller provided sexual favors and thousands of dollars in cash.

4) Dr. Aria Sabit pleaded guilty in a federal district court in Detroit in May to conspiring to receive kickbacks from a medical technology company. In 2010, Apex Medical Technologies, which distributes spinal surgery instruments, told the surgeon that, if he invested $5,000 in the company and used its hardware, he would share in the revenue. Ultimately, he received $439,000 from his investment. Dr. Sabit also pleaded guilty to stealing $11 million in insurance proceeds after billing Medicare, Medicaid and private insurers.

5) A Virginia jury awarded a patient $500,000 in June after an anesthesiologist made mocking and derogatory comments, which the patient accidentally recorded on a cellphone while he was sedated. The case inflamed the public after the Washington Post reported the story. The recording captured anesthesiologist Tiffany Ingham, MD, commenting on the patient’s penis and making fun of him. The surgical team also entered a fake diagnosis of hemorrhoids into his medical record.

6) A former researcher at Iowa State University was sentenced to 57 months in prison in July for systematically falsifying data to make an experimental HIV vaccine look effective. The researcher, Dong Pyou Han, PhD, was supposed to inject rabbits with a vaccine and test their sera for HIV antibodies. Dr. Han not only gave the head of the lab false test results about the vaccine, but he also injected the rabbits with human antibodies.

7) The Washington Medical Quality Assurance Commissions suspended the license of Arthur Zilberstein, MD, in June for sexting from the operating room. The commission said Dr. Zilberstein “compromised patient safety due to his preoccupation with sexual matters” during surgery. He was charged with exchanging sexually explicit texts during surgeries when he was the responsible anesthesiologist, improperly accessing medical-record imaging for sexual gratification and having sexual encounters in his office.

8) An Ohio cardiologist was convicted in September of billing Medicare and other insurers for $7.2 million in unnecessary tests and procedures. Dr. Harold Persaud put lives at risk by performing stent insertions, catheterizations, imaging tests and referrals for coronary artery bypass graft surgery that were not medically warranted, according to prosecutors.

Alas, such patient mistreatment and fraud is not that rare, as my readers.

Rising Risks of Medicare Audits

Texas physician Dennis B. Barson Jr. and his medical clinic administrator are headed to prison. The 10-year prison sentence imposed against Barson, like an $8 million-plus healthcare fraud civil settlement announced by the Justice Department on July 24, 2014, illustrate the significant legal risks that physicians and other healthcare providers face when physician charges are improperly billed to Medicare, Medicaid, Tricare or other federal or state healthcare programs for services actually provided by non-physician staff.

Physicians and others should heed the lessons from these and other similar federal and state healthcare fraud enforcement actions when deciding when it is appropriate to bill federal healthcare programs for physician services where physicians assistants, nurse practitioners or other nursing staff or other non-physicians perform part or all of the procedures billed.

Dr. Barson Prison Sentence Highlights Criminal Risks

On Monday, July 27, 2015, U.S. District Court Judge Melinda Harmon ordered Barson to serve 120 months in prison, followed by three years of supervised release, and to pay restitution of approximately $1.2 million for his Nov. 5, 2014, conviction on all 20 counts of conspiracy to defraud Medicare of $2.1 million.

With Judge Harmon presiding, a Houston jury found Barson and his medical clinic administrator, Dario Juarez, 55 years old, guilty on the Medicare fraud charges last November. Another co-defendant, Edgar Shakbazyan, entered a guilty plea to the 21-count original indictment on Oct. 27, 2014. Shakbazyan, of Glendale, CA, was sentenced to 97 months in prison, while Juarez, of Beeville, Texas, received 130 months. Both will also serve three years of supervised release.

The jury convictions of Barson and Juarez followed a trial where Department of Justice prosecutors proved the healthcare fraud charges based on evidence that Barson, Juarez and Shakbazyan fraudulently billed Medicare for rectal sensation tests and electromyogram (EMG) studies of the anal or urethral sphincter that were never performed. Shakbazyan was additionally charged and pled guilty to conspiracy to pay kickbacks for payments made to recruiters and beneficiaries.

According to the testimony at trial, Barson was the only doctor affiliated with the medical clinic located at 8470 Gulf Freeway in Houston. However, Juarez represented himself to be a doctor and was the one who actually saw patients at the clinic. Barson, Juarez and Shakbazyan caused Medicare to be billed for procedures on 429 patients in just two months. The three men also billed Medicare for seeing more than 100 patients on 13 different days, including a high of 156 patients on July 13, 2009.

Barson’s defense attempted to convince the jury that he was a victim of identity theft and was not the perpetrator of the crimes. The conviction shows the jurors did not believe his story. The criminal charges are the result of a joint investigation conducted by agents of the FBI, Department of Health and Human Services-Office of Inspector General and the Medicaid Fraud Control Unit of the Texas Attorney General’s Office.

Margossian Settlement Shows Even More Common Civil Penalty Risks

Barson’s sentencing is one of a growing series of criminal convictions and sentencing of physicians and other healthcare providers for healthcare fraud by participating in arrangements where Medicare, Medicaid or other federal healthcare programs are billed for services not provided or not provided as required to qualify for reimbursement. On July 24, 2015, for instance, the U.S. Attorney for the Eastern District of New York and the State of New York announced that Brooklyn, NY, OB/GYN Haroutyoun Margossian will pay $8 million as part of a civil settlement with the U.S. and the state of New York. The settlement resolves charges brought under the federal False Claims Act and the New York False Claims Act that Margossian wrongfully billed Medicare and Medicaid for physician services for treatments of women suffering from urinary incontinence that unlicensed and often unsupervised staff, rather than Margossian or another physician, actually administered. The government has also filed a criminal charge against Margossian for making false statements to Medicare and entered into a deferred prosecution agreement with him.

Healthcare Fraud Investigations Raise Other Licensing and Practice Risks

The Barson and Margossian actions are just two of the already long and ever-growing list of criminal convictions, civil sanctions and civil settlements that federal and state healthcare fraud fighters already can count as notches of success in their war against healthcare fraud by physicians and other healthcare providers. With these successes fueling more investigations, physicians and others should be prepared to “do time” for improperly billing physician fees to federal healthcare programs for services not provided by the billing physician or for engaging in other inappropriate billing practices. Targets of audits and investigations also must prepare to deal with a host of other threats to their practices that almost inevitably arise regardless of whether the government investigation leads to a conviction, civil sanctions or a settlement.

As demonstrated by the Margossian settlement, even if physicians, practice management and others swept up into these investigations escape being criminally charged, subjected to civil sanctions or penalties or suspended or excluded from Medicare or other federal healthcare programs, healthcare fraud investigations or charges still will carry a heavy cost. Healthcare fraud warriors are realizing great success in securing civil sanctions and settlements, federal program exclusions and other civil and administrative punishments against physicians and other healthcare providers that the government accuses of violating the False Claims Act or other federal healthcare fraud rules.

Of course, whether healthcare fraud investigations ultimately result in any civil or criminal prosecution, conviction or settlement, physicians and other licensed healthcare providers under suspicion of healthcare fraud inevitably must deal with a broad range of other professional fallout. These activities almost always trigger scrutiny or other actions by employers and medical practices, healthcare organizations and licensing boards.

Act to Strengthen Your Defenses

Physicians and others should take steps to minimize the risk of an investigation or audit as well as take steps to help ensure sufficient resources to defend themselves if the government comes knocking.

Of course, the first step should be to take proper, well-documented efforts to comply with the rules. Physicians and the clinics, hospitals and management working with them should carefully evaluate what can be defensibly billed as physician services to Medicare or another federal healthcare program — keeping in mind that the billing party, not the government, generally bears the burden of proving that the amount bill qualifies for coverage. Physicians and others must carefully consider the adequacy of the physician’s involvement in prescribing and delivering services intended to be billed as physician services. In areas where questions could be raised, physicians and their organizations are strongly urged to take extra care to retain documentation of their analysis and efforts to verify their compliance, including consulting legal counsel for advice within the scope of attorney-client privilege.

Physicians and others working with them also should familiarize themselves with their obligations and rights under employment agreements, shareholder or partnership agreements, medical staff bylaws, managed care contracts, medical licensing board rules and the Health Care Quality And Improvement Act. In many cases, these arrangements will compel a physician to provide notice of an investigation, audit, allegation or charge, will trigger separate investigatory or disciplinary action against the physician, or both.

Along with the stiff civil sanctions or settlements imposed, physicians and others investigated or charged with healthcare fraud often incur significant legal and other costs. Physicians and others should consider if they can expect to have sufficient funds to pay the legal and other costs of their defense. Physicians and their organizations concerned about the adequacy of these resources may wish to explore, where available, raising their malpractice policy coverage limits, purchasing other supplemental coverage and taking similar steps to better position themselves. Physicians generally will want to review the adequacy and limits of the coverages that their practices provide, as well as consider the reliability of that coverage in the event that the physician is terminated or leaves the practice.

Because of the 10-year statute of limitations applicable to False Claims Act claims, billings can come back to haunt a physician 10 years after their submission. With this tremendously long liability period, even in the absence of government investigation, a significant risk exists that a physician may experience a practice relocation or other change that would affect his coverage during this period. When an investigation happens, the possibility that the physician will relocate his practice skyrockets. Consequently, physicians should consider purchasing tail coverage, maintaining separate, portable professional liability coverage or both.

Physicians and their practices also should consider the adequacy of the coverage provided by their professional liability or other policies. If the policy provides no or limited coverage, both the physician and his associated organization or practice may want to explore purchasing additional riders on the existing policy, purchasing separate coverage or both, as well as to raise the limits on the coverages.

Practice leaders, hospitals and other organizations that would be swept up into these investigations generally share an interest in ensuring that the physician possesses adequate resources to defend herself, as their organization and its billings are likely to be hurt if the physician is unable to defend the billings.