Friday, April 29, 2016

Patient Recruiter for Miami Home Health Agencies Convicted of Receiving Health Care Kickbacks and Conspiracy

A patient recruiter for several Miami-area home health agencies was convicted on April 1, 2016 for his role in a fraud and kickback scheme that resulted in the submission of millions of dollars in false and fraudulent claims to Medicare.

After a jury trial, Carlos Rodriguez Nerey was convicted of one count of conspiracy to defraud the United States and pay and receive health care kickbacks and one count of receiving health care kickbacks.  According to evidence presented at trial, Mr. Nerey presented that he worked at a staffing company called Sweet Life Staffing Inc. but was in fact a patient recruiter for Dand D Home Health Inc. and Mercy Home Care, Inc., two home health care agencies in Miami.  Evidence at trial was that Mr. Nerey's company received approximately $250,000 for payments for the referrals of patients. The Medicare billing for the referred patients involved more than $2 million in payments to D and D and Mercy.  Sentencing is set for May 27, 2016 before U.S. District Judge Gayles.

Posted by Tracy Green, Esq.
Office: 213-233-2260
Green and Associates, Attorneys at Law

Thursday, April 28, 2016

Chicago Marketer Convicted of Violating Anti-Kickback Statute for Receiving Money in Exchange for Marketing and Referring Elderly Patients to Home Health Company. Marketing Is Risky Business Unless Done Right.

Marketing for home health businesses and other health care providers is subjected to many federal and state statutes and regulations. Violation of those laws is a crime. Often people will ask "how can marketing can be a crime where the services were provided?" 

The marketing is so pervasive in the home health and hospice businesses that it is often difficult to persuade those in the business that just because everyone engages in "marketing" does not mean that it is legal. I spend hours in privileged attorney-client meetings trying to convince home health clients that their marketing model must be changed or they risk criminal prosecution, loss of licenses and their business. Often they do not know any other way of growing and keeping their business and do not understand the importance of compliance. It is an outdated model and a risky one. I would rather represent someone in compliance than work on a criminal investigation or Indictment but business models are not easy to change.

The federal and state governments are taking an aggressive stance towards marketing in home health.  This case shows how these cases are prosecuted.  Out of one home health business there were 11 convictions of marketers, nurses, doctors, office managers and owners of the home health business. The services were provided. That was not the issue. The issue was the marketing. Plain and simple.

On Mach 22, 2016, after a three-day "bench trial" where a jury was waived, U.S. District Judge Darrah convicted a Chicago marketer Jenette George of taking illegal payments in exchange for referring elderly patients to an Illinois home healthcare company Rosner Home Healthcare Inc. (Rosner). The government used a cooperating defendant to tape and record Ms. Rosner in order to provide hard evidence against her.

Ms. George was convicted on two counts of violating the federal Anti-Kickback Statute, and one count of conspiracy to violate the statute. Sentencing is scheduled for August 10, 2016, at 1:30 p.m.

Between January 2008 and July 2012, Rosner officials paid marketing payments (which the government calls "kickbacks and bribes") to doctors, marketers, medical office employees and nurses to refer patients to Rosner.  The marketing payments did not comply with the law which makes each of the billings that arose out of the marketing a "false claim." The government's view is that the referrals enabled Rosner to bill Medicare for home healthcare treatment that it subsequently provided.

“Physicians did not refer patients to Rosner; Defendant [Jenette George] did,” Judge Darrah wrote in an opinion supporting the verdict. Thus, Judge Darrah saw that while the physicians wrote referrals for home health a marketer decided what agency was selected based upon the amount of compensation she received rather than what is based for the patient. 

This is part of the reasoning behind the anti-kickback laws. One other reason for the rules is that marketers (and home health companies) may encourage physicians to order home health services that are not medically necessary so they can earn more  income.

Rosner has since closed. Ms. George operated Ttenej Senior Referral Agency, which provided senior citizens with referrals to home healthcare firms in the Chicago area.  Evidence at her three-day bench trial in October 2015 revealed that Ms. George received approximately $500 from Rosner for each patient she referred to the company.  

In one undercover surveillance video presented at trial, Ms. George is seen counting out the cash that she received from Edgardo Hernal, a former Rosner employee who by then was cooperating with federal authorities.  Evidence at trial further showed that nurses at Rosner regularly put false information into patient charts to make Rosner’s services appear to be medically necessary, and to make patients appear to be sicker than they actually were.

Tuesday, April 26, 2016

California Podiatrist Sentenced to 3 Years for Federal Health Care Fraud for Upcoding, Providing Services Not Medically Necessary or Performed By Unlicensed Staff, and Altering Records

On April 15, 2016, a podiatrist Dr. Neil Van Dyck of Roseville, California was sentenced by United States District Judge Garland E. Burrell Jr. to three years in prison and a $10,000 fine for committing healthcare fraud. This sentence came after a guilty plea on October 23, 2015.  

According to the plea agreement and court documents, Dr. Van Dyck was a California-licensed podiatrist who operated a podiatry practice in Roseville called Placer Podiatry. The issue in Dr. Van Dyck's case was whether the “spa”-like or routine foot care treatments were properly billed to Medicare, Medi-Cal, Tricare and other private insurers.  

The government and insurers alleged that Dr. Van Dyck falsely claimed that he performed more expensive procedures than he actually performed, or that the routine foot care that was provided was justified because of illness or symptoms that were not present. it was alleged that often the treatments were performed by unlicensed staff, sometimes when Dr. Van Dyck was not present at his practice. Additionally,  it was alleged that Dr. Van Dyck altered a single-use skincare patch by cutting it into pieces and billed Medicare for multiple applications. 

As typical in these cases, responses to audits are used to show scienter or criminal intent. The government alleged that in 2011, in response to a request for documents from an investigator for Medicare, Dr. Van Dyck altered patients’ medical records to justify his bills. Medicare, Medi-Cal, Tricare, and the private insurers paid Van Dyck over $1 million for his claims.  

There was a forfeiture component to this case.  Judge Burrell previously entered an order requiring Dr. Van Dyck to forfeit $1.2 million from a retirement account into which proceeds of the healthcare billing were traced. The date for a further restitution hearing is set for May 27, 2016.

Posted by Tracy Green, Esq.
Green and Associates
Office: 213-233-2260

Monday, April 25, 2016

Marin Doctor Pleads Guilty To Prescribing Controlled Substances (Oxycodone, Methadone, Hydrocodone) Outside Course of Professional Practice and Without Legitimate Medical Purpose

On March 9, 2016, Dr. Michael Roger Chiarottino pleaded guilty in federal court in Oakland to distribution of oxycodone outside the usual course of professional practice and without a legitimate medical purpose.

In pleading guilty, Dr. Chiarottino, 67, of San Rafael, admitted that on six occasions between February 12, 2013, and March 6, 2014, he prescribed large quantities of controlled substances (including oxycodone, oxymorphone, hydromorphone, methadone, and hydrocodone) to undercover DEA agents posing as patients in exchange for cash. 

On each occasion, Dr. Chiarottino admitted that he failed to conduct an appropriate medical examination of, or obtain a sufficient patient medical history from, the undercover agent to support a prescription for such a large quantity of narcotics. 

In total, Dr. Chiarottino prescribed 46.8 grams of oxycodone which amounts to 1,530 thirty-milligram pills.  Dr. Chiarottino admitted that in prescribing the pills, he did so with the intent to act outside the usual course of professional practice and without a legitimate medical purpose. 

Dr. Chiarottino also admitted that, as a licensed physician and DEA registrant, he abused a position of trust and used a special skill to intentionally prescribe controlled substances without a legitimate medical purpose. 

Dr. Chiarottino was indicted by a federal grand jury on September 14, 2014.  He was charged with fifteen counts of distribution of controlled substances in violation of Title 21, United States Code, Section 841(a)(1).  Pursuant to the agreement, Dr. Chiarottino pleaded guilty to one count of distributing oxycodone, a Schedule II Controlled Substance. He is scheduled to be sentenced on June 14, 2016 before Judge Jeffrey White in Oakland, California.

Attorney Commentary: Dr. Chiarottino appears to have had his own personal issues that led to this case. He was a pain management doctor who ended up with his own addiction issues and was arrested for driving under the influence and possession of narcotics prior to being indicted. He surrendered his physician license to the Medical Board on June 10, 2015 after there was an interim suspension order.

The decision making impairment issues that a physician has with depression or substance abuse tend to lead to other issues such as the ones that occurred in this case. Physicians and professionals with personal issues need to address them at the earliest possible time since they tend to snowball and lead to greater issues. The cases we see tend to show physicians who have impaired medical judgment for a variety of reasons rather than some grand scheme to prescribe controlled substances to drug addicts.

Saturday, April 23, 2016

Georgia Doctor Pleads Guilty to False Billing to Private Insurers and Medicare for Surgical Monitoring Performed by Medical Assistant

Analysis of billing data is leading to more investigations, audits and prosecutions. Anonymous complaints to the HHS-OIG Hotline at 800-HHS-TIPS are also an increased source of investigations. One recent health care fraud case against a physician came about due to both analysis of billing data and anonymous complaints to the HHS hotline.

On March 25, 2016, Dr. Robert E. Windsor, an Atlanta-area physician, pleaded guilty to health care fraud for filing claims for surgical monitoring services he did not perform before U.S. District Court Judge Amy Totenberg.

According to the charges and other information presented in court: Dr. Windsor, a licensed Georgia physician, entered into a contract with American Neuromonitoring Associates, P.C. (ANA), a Maryland corporation, to provide a medical service called intra-operative monitoring. In this medical procedure, a physician monitors a patient’s nerve and spinal cord activity during surgery to reduce potential adverse effects to the patient.

The contract stated that Windsor would provide real-time monitoring services for patients in surgery via an online platform with technologists in the operating room. Windsor was responsible for providing a final monitoring report at the conclusion of each surgery, and ANA and its sister company would thereafter bill patients and health care benefit programs, including private health insurance companies, for the monitoring. Dr. Windsor was paid a fee for each surgery monitored.  

Between at least January 2010 through July 2013, Dr. Windsor instead assigned the monitoring to a medical assistant who impersonated Dr. Windsor by using Dr. Windsor’s log-in credentials in the online platform. The medical assistant was not a doctor and was not permitted to perform the monitoring under the contract with ANA. Dr. Windsor submitted final monitoring reports which by their nature falsely stated that he had conducted the monitoring, which ANA and its sister company relied upon in billing health care benefit programs for his services. On several occasions, Dr. Windsor allegedly billed ANA for monitoring services he purportedly performed when he was actually traveling on an international flight and this type of proof was used as an example of his conduct.

In total, after collecting reimbursements from insurers, it was alleged that ANA paid Dr. Windsor over $1.1 million for monitoring services he did not perform during this time period. Sentencing for Dr. Windsor is scheduled for June 3, 2016 at 10:30 a.m.

Attorney Commentary: Big data and billing data analysis is making audits for private and government carriers easier. I have seen an increase in the number of audits for even small providers since it is much simpler to see patterns in billing that trigger red flag audits. This ability to analyze billing data makes it more important than ever for providers to be compliant given that private insurers and government providers will pursue cases criminally if there is consistent billing for services not provided.  The old days of simply making an overpayment are going away.  The use of big data analysis, the allure of whistleblower lawsuits and anonymous complaints are also reason to self-report when appropriate.  

Wednesday, April 20, 2016

Respironics to Pay $34.8 Million in Qui Tam Case for Allegedly Paying Kickbacks in Form of Free Call Center Services to DME Suppliers That Bought Its Masks for Sleep Apnea Patients

On or about March 23, 2016, a national medical supply company Respironics Inc., based in Pennsylvania, agreed to pay $34.8 million to resolve alleged False Claims Act violations for paying alleged kickbacks in the form of free call center services to durable medical equipment (DME) suppliers that bought its masks for patients with sleep apnea.  

Respironics will pay roughly $34.14 million to the federal government and roughly $660,000 to various state governments based on their participation in the Medicaid program. 

The Anti-Kickback Statute prohibits the knowing and willful payment of any remuneration to induce the referral of services or items that are paid for by a federal healthcare program, such as Medicare, Medicaid or TRICARE.  Claims submitted to these programs in violation of the Anti-Kickback Statute are also false claims under the False Claims Act.

The United States alleged that Respironics violated the Anti-Kickback Statute and the False Claims Act by providing free services to DME suppliers to induce them to purchase Respironics masks that treat sleep apnea.  Respironics allegedly provided DME companies with call center services to meet their patients’ resupply needs at no charge as long as the patients were using masks that Respironics manufactured; otherwise, the DME companies would have to pay a monthly fee based on the number of patients who used masks manufactured by a competitor of Respironics.  

The government alleged that the conduct began in April 2012 and continued until November 2015. The settlement resolves a lawsuit originally brought by Dr. Gibran Ameer, who has worked for different DME companies, under the qui tam provisions of the False Claims Act.  The Act permits private citizens with knowledge of fraud against the government to bring a lawsuit on behalf of the United States and to share in any recovery.   Under the civil settlement announced today, Dr. Ameer will receive $5.38 million out of the federal share of the recovery.

Posted by Tracy Green, Esq.
Office: 213-233-2260



DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

The information provided on this website is for informational purposes only. It is not intended to create, and does not create, a lawyer-client relationship with Green & Associates, Attorneys at Law. Sending an e-mail to Tracy Green does not contractually obligate them to represent you as your lawyer, or create any type of client relationship. No attorney-client relationship will be formed absent a written engagement or retainer letter agreement signed by both Green & Associates and client and which specifies the scope of the engagement.

Please note that e-mail transmission is not secure unless it is encrypted. E-mail messages sent to Ms. Green should not include confidential or sensitive information.