The government is resorting to more traditional law enforcement investigation methods in order to obtain hard evidence of payment of kickbacks, lack of medical necessity and other types of "health care fraud." In this recent case from Miami, it involved cooperating witnesses (working off their own legal problems) working undercover as marketers and recording their work at the clinic which included payment of kickbacks.
On January 26, 2010, in the Southern District of Florida, Lisset Lombera and Yamilet Cardenas of Miami-Dade County were sentenced after both having plead guilty in November 2009 for conspiring to commit health care fraud in violation of Title 18, United States Code, Section 1349.
In Miami, U.S. District Court Chief Judge Federica A. Moreno sentenced Ms. Lombera to 30 months’ imprisonment and three years’ supervised release; and sentenced Ms. Cardenas to 24 months’ imprisonment and three years’ supervised release. Chief Judge Moreno ordered both defendants to pay restitution of $254,469 to Medicare (the total amount received by the clinic). Both of the women were immediately remanded into custody to begin serving their sentences.
The allegations underlying the case were as follows. From February 2006 to December 2006, Ms. Lombera and Ms. Cardenas allegedly conspired with Dr. Alberto Gonzalez-Gomez and others to defraud Medicare through the submission of fraudulent claims from an HIV-clinic known as Medley Clinic. Medley Clinic submitted $3,018,400 in fraudulent Medicare claims and was reimbursed $254,469.
The government's case was built on undercover cooperating witnesses wearing recording devices. This is becoming more common in health care fraud cases. In 2006, two cooperating witnesses, posing as marketers or recruiters, brought individuals purporting to suffer from HIV-related ailments to the Medley Clinic in exchange for kickbacks from the Clinic. Ms. Lombera and Ms. Cardenas, who allegedly controlled Medley Clinic, instructed the individuals complete paperwork, fraudulently claiming that Medley provided them with expensive HIV-related drugs, when, in fact, in most cases, the drugs were neither provided nor medically necessary.
In July and August 2006, the cooperating witnesses wore hidden devices that recorded conversations with Ms. Lombera and Ms. Cardenas in which the defendants admitted being aware of the fraud.
The physician, Alberto Gonzalez-Gomez, was prosecuted separately and was sentenced to 24 months’ imprisonment.
Related court documents and information may be found on the website of the United States District Court for the Southern District of Florida at www.flsd.uscourts.gov or http://pacer.flsd.uscourts.gov.
Attorney Commentary: Health care providers who are generally honest and have no intent to commit any type of fraud need to be very careful in dealing with any marketers or patients or third parties. In this day of age when there are many cooperating witnesses working for a better sentence, you must assume that everyone is undercover and you are being recorded.
I have seen honest doctors who when facing financial pressure have a laboratory representative show up in their office offering to pay part of their overhead by paying rent or paying for a medical assistant -- and go along with it not realizing the ramifications of taking $600 a month.
If you are offered any type of arrangement that involves your receipt of any money or consideration for rent, payroll or other potentially legitimate reasons, run - do not walk - to your health care attorney and seek a consultation and legal opinion as to whether it is legal. There are certain occasions where payment of rent for space, for example, can be in a safe harbor but do not rely on your own judgment or the fact that "everyone else does it."
Posted by Tracy Green. Should you have any questions regarding your own situation or this post, you can email Tracy at tgreen@greenassoc.com. Green & Associates in Los Angeles, California focuses their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and have handled hundreds of health care fraud cases. Their website is: http://www.greenassoc.com/
