For
over ten (10) years, podiatry has been a red flag for Medicare auditors. The
rules for podiatry services are strict and a podiatrist recently agreed to
plead guilty to Medicare fraud based solely on podiatry services.
On October 23, 2015, a podiatrist, Neil A.
Van Dyck DPM, who operated a podiatry practice in Roseville, California called
Placer Podiatry pleaded guilty to health care fraud in the Eastern District of
Caifornia. This was under a plea agreement and was negotiated between the
government and Dr. Van Dyck’s attorney.
According
to court documents, Dr. Van Dyck was a California-licensed podiatrist. Van Dyck
offered “spa”-like treatments and performed routine foot care at his practice.
Between
2009 and 2014, however, the government alleges that Dr. Van Dyck submitted over
$2.8 million in fraudulent claims for reimbursement to Medicare, Medi-Cal,
Tricare and private insurers (where about $1 million was paid) by doing the
following:
1. Dr. Van Dyck allegedly falsely
claimed that he performed more expensive procedures than he actually performed
and that some of these procedures were “spa-like” rather than medical
procedures;
2. Dr. Van Dyck allegedly falsely
claimed that the routine foot care that was provided was justified because of
illness or symptoms that were not present;
3. The treatments
were allegedly performed by unlicensed staff sometimes when Dr. Van Dyck was
not present at his practice;
4. Dr. Van Dyck allegedly
altered a single-use skincare patch by cutting it into pieces and billed
Medicare for multiple applications; and
5. In response to
a request for documents from an investigator for Medicare, Dr. Van Dyck allegedly
altered patients’ medical records to justify his fraudulent bills.
Dr.
Van Dyck is scheduled to be sentenced by Judge Garland E. Burrell Jr. on
January 15, 2016. The plea agreement is sealed and thus the sentence that he faces is not know. Dr. Van Dyck faces a maximum statutory penalty of 10 years
in prison and a fine of $250,000 or twice the loss or gain but with a plea agreement it would be highly unlikely that the maximum sentence would be imposed. The actual
sentence, however, will be determined at the discretion of the court after
consideration of any applicable statutory factors and the Federal Sentencing
Guidelines, which take into account a number of variables.
Attorney
Commentary: As I have seen in many cases over the years, the alteration of
patient records in request to an audit or subpoena for records is being used to
show fraudulent intent. While physicians may see issues in records and seek to
correct them, they do not understand that changing records (unless those
changes are noted in the charts on the date performed) can be used against the
physician.
Moreover, physicians
who bill services need a compliance plan and method for evaluating billing and
procedures. Billing mistakes will happen but when it goes on for over 5 years,
the billings add up. In fraud cases, it is the amount “billed” that is used for
sentencing on loss amounts and not the amount “collected.” While the amount
collected is relevant for sentencing, it is better for providers to catch
mistakes themselves. Physicians will bill and be paid for years and assume that
they must be doing it right.
Medicare
is a “good faith” billing system. Medicare and Tricare pay and reserve the
right to audit and challenge all billing for the prior 6 years. Do not assume
that simply because you are being paid that the billing and documentation is
correct. Get a compliance plan to keep your billing out of the claims that
there is any “fraud,” “lack of medical necessity,” or “lack of documentation.”
Posted by Tracy Green, Esq.
Green and Associates
Email: tgreen@greenassoc.com
Office: 213-233-2260
