Monday, February 23, 2009

Health Care Fraud - Attorney Commentary On Four Potential Empty Chair Defenses

One difference in the defense of health care fraud from traditional financial crimes is the role of integral third parties – the government, insurance companies who process payments for the government, public health agencies who address social problems and patients. Although securities fraud and public works fraud have similar regulatory frameworks that allow the government agencies to be named an empty chair, the complex and personal nature of health care creates more empty chairs for you to point at during pre-filing and pre-trial stages and trial itself. Four potential empty chairs are:


The provider does not usually send the electronic/paper billing to the government itself but to these private, for profit companies such as EDS, Transamerica, NHIC, Empire, etc. Look how the contracted companies get paid. Are there bonus or percentage arrangements in the billings paid out and collected? Some companies get paid based upon the amount of billings and then get paid for the amount of money they later seek to recover in overpayment (paying and seeking recovery for same $$ later). There is little incentive for these companies to ensure that the billings are correct. Look at these companies transmittal memoranda, manuals and see if you can find discrepancies or ambiguities that will help your client. The rules can be complicated and often the companies don't understand the rules. So why should your client? Naturally, this goes to intent to defraud. In addition, these companies’ rates of error may be greater than those of your client. Look for public records re: rates of error. Seek such information in discovery.


Pull all manuals, transmittal memos, and regulations for years at issue. Pull all website information and publications given to beneficiaries. Talk to billers for the codes at issue. Understand the manuals and rules. If there was a mistake in billing -- understand how it could have occurred in the regulatory world. For example, rules are often different for Medicare than Medicaid. Private insurance is also different. This confusion and complicated rules will go to the heart of the issue of intent to defraud.


Look at public health policies that are contrary or inconsistent with the government’s position. For example, high incidence of disease and health issues among the poor; large immigrant populations; illegal immigration; high birth rates of certain low-income groups; etc. Wear the public policy and public health hats if you can. Physicians are often the front line between large urban cities and third world diseases, family planning and cost-effective prenatal care that save taxpayers much more money that the programs cost. Use conflict between public health and administrators at Medicare/Medicaid to your benefit.


In some cases, the patients are the victims. The empty chair does not apply there. However, some patients are perpetrators of the crime, unindicted co-conspirators or have given false information to the government or their health care provider. In some cases there are "professional patients" who receive money to receive medically unnecessary services.

Understanding the role of the patients will help you understand the case and craft your defense. Some patients know how to manipulate the system and are not truthful to physicians or the government in their quest for services. For example, the patient may not report the existence of other insurance to avoid copays; may lend/borrow ID cards to family and friends; may overutilize medical services because they are free or because culturally they came from a country (former USSR) where they were used to free health care; and may lie to government when interviewed. Patients are usually not charged even if they were involved as a policy decision by the government.

These three entities and the beneficiaries are a starting point to examine the health care world in which health care providers operate. Where cases have been filed that do not reflect the actual complicated regulatory world of health care, the analysis of the roles these "empty chairs" play can help you understand potential defenses in your case.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates. They focus a significant part of their practice on the representing health care professionals and providers at trial and in administrative, civil and criminal matters.  


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