Friday, December 25, 2015

Two New Orleans Doctors and a Registered Nurse Convicted by Jury for Roles in Home Health Care Billed to Medicare and Sentenced to Federal Prison. Health Care Professionals Face Challenges in Taking These Cases to Trial.

The investigative agency for Medicare is the Office of Inspector General (OIG). OIG has targeted home health services as being prone to fraud, abuse, illegal kickbacks and over-utilization. 

In cases where there is evidence of actual fraud with a knowing intent to violate the rules (providing services for patients who are not homebound), billing for services not provided, or where there are underlying illegal referral arrangements or kickbacks --  the cases will be pursued criminally.

In a recent case, two doctors and a registered nurse in New Orleans were sentenced to prison on December 16, 2015 for their roles in home health involving multiple companies. The parties went to trial and were convicted by a jury. Most of other defendants plead guilty. 

Medicare fraud cases involving claims to the government where the billing parties agree to follow all the Medicare rules can be difficult to defend especially when there is a large pattern of non-compliance. Juries often hold professionals such as doctors and nurses to higher standards. In this case, the alleged "mastermind" plead guilty as did other parties other than the medical professionals, which also complicates the defense in these types of cases.

Often the physicians who get involved in these cases are somewhat older or have some other issues, and often the others involved hide the fraud from the professionals. This case is no different. Dr. Barbara Smith is 67 and was sentenced to 80 months, Dr. Roy Berkowitz is 69 and was sentenced to 64 months, and the registered nurse Beverley Breaux is 67 and was sentenced to 50 months in prison. The case was before  U.S. District Judge Sarah S. Vance of the Eastern District of Louisiana.  Judge Vance also ordered Dr. Smith, Dr. Berkowitz and Ms. Breaux to pay $9,484,939, $4,952,816 and $2,057,179 in restitution, respectively. 

The restitution in these cases represents all the billing to the government and not the funds received by the defendants. Restitution also is a factor on the length of the sentences. 

The government produced evidence introduced at trial that Drs. Smith and Berkowitz falsely certified that thousands of Medicare recipients were homebound and required nursing or therapy services to be provided in their homes.  The government presented evidence that RN Breaux falsely certified that these patients were homebound and falsely claimed to have treated patients that she had not seen.  There were other facts involving kickbacks paid by the companies and wrongdoing by the other parties.

The government claimed that from 2007 through 2014, the companies involved submitted more than $56 million in claims to Medicare. The government contended that the vast majority of the claims were fraudulent.  Medicare paid approximately $50.7 million on these claims. 

When the government tells the juror taxpayers that the "United States" paid for unnecessary services which causes higher taxes and makes services needed lack funding, the jury members become sympathetic to the government case.

The days of physicians, nurses and other individuals in health care assuming that others are complying with the rules are over. Failure to be vigilant about compliance and mindful of red flags can drag someone into a case that is unimaginable in scope and exposure to prison time and restitution.

Posted by Tracy Green, Esq.
Office: 213-233-2261


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