California Attorneys Representing Licensed, Regulated And Other Professionals
Thoughts And Articles From Attorneys At Green and Associates Who Represent Professionals, Businesses and Invididuals In Administrative, Criminal Defense, Regulatory, Health Care and Civil Litigation Matters In California
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. Email: firstname.lastname@example.org Office: 213-233-2260 Green and Associates, Attorneys at Law
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 meetingstrying 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 It is an outdated model and a risky one.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 Illinoishome 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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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. Email: email@example.com
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