Podiatrist Sentenced in Upcoding Medicare Fraud Case for Patients Seen at Assisted Living Facilities

Years ago, health care fraud cases would generally only be brought for outright fraud where there was ghost billing for patients not seen or other type of fraud. However, upcoded billing is now being charged more often when there is a significant pattern. A recent case involving a podiatrist illustrates this.

On May 17, 2019, podiatrist Loren Wessel of Tucson, Arizona was sentenced by U.S. District Judge James Soto for his role in a Medicare fraud scheme to serving a 24-month term of imprisonment. Mr. Wessel had previously pleaded guilty to Health Care Fraud. The Court also ordered Wessel to pay $965,985 in restitution to the Centers for Medicare and Medicaid Services.

In the plea agreement, Mr. Wessel admitted that from 2008 through June 2016 that he as a licensed podiatrist defrauded Medicare out of hundreds of thousands of dollars. In his plea agreement, Mr. Wessel admitted he submitted false claims to Medicare. As part of his practice, Mr. Wessel conceded that he regularly provided routine podiatry care for patients at assisted living facilities in and around Tucson, but fraudulently billed Medicare for more complex and significantly more expensive services that he had not performed. To further this upcoding, Mr. Wessel admitted that he falsely documented patients’ medical records with alleged ailments they did not have and with care Mr. Wessel did not provide.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

California Psychologist and Doctor Charged with Fraudulent Workers’ Compensation Evaluations Where Psychologist Was Not Certified as a Qualified Medical Examiner and Doctor's Certification Had Lapsed

In billing for evaluations of workers' compensation patients, health care providers should be very careful to ensure that they do not misrepresent themselves as a certified  Qualified Medical Examiner (QME) on a medical legal evaluation or billing statement. 

In addition, it is important to ensure that the bills for medical legal expenses have been reviewed so that the criteria for medical-legal billing has been met. A recent case shows how a report by two provider who were not properly certified QMEs led to criminal insurance fraud charges. 

On May 7, 2019, psychologist Danita Stewart and Dr. Catalino Dureza were charged for allegedly submitting fraudulent insurance claims for Medical Legal Evaluations. They are presumed innocent and charges are not evidence.

Dr. Stewart, a licensed psychologist, allegedly submitted 36 fraudulent insurance claims between April 2015 and June 2015 to five different insurers for Medical Legal Evaluations for a total of $90,714. A Medical Legal Evaluation is conducted to evaluate an employee’s work-related injury and is governed by the California Labor Code. 

Even though Dr. Stewart was a licensed psychologist she was not certified as a Qualified Medical Examiner as required to conduct and bill for Medical Legal Evaluations. Dr. Stewart allegedly conducted these fraudulent evaluations at clinics in Fresno, Tulare, and Kern Counties. Dr. Stewart was charged with 36 felony counts of Penal Code Section 550(a)(1) [one for each report], and 1 felony count of Penal Code Section 550(a)(7).

Dr. Dureza, a licensed medical doctor, had obtained the proper certification to conduct and bill for Medical Legal Evaluations, but his certification lapsed. Dr. Dureza allegedly continued to conduct and bill for Medical Legal Evaluations, and once he was recertified he conducted and billed for unauthorized Medical Legal Evaluations. Between January 2014 and May 2015, Dr. Dureza allegedly submitted 17 fraudulent insurance claims for Medical Legal Evaluations conducted in Fresno County to five different insurers for a total of $16,292. This is not a large loss amount but shows that they will prosecute for amounts under $25,000. Dr. Dureza was charged with 17 felony counts of Insurance Code 1871.4(a)(1).

Whether or not someone is a QME is a public record so it appears the insurance carriers must claim that they paid these bills understanding that the providers were CMEs. I have seen cases where a biller has placed a QME, IME and AME near the providers' name, not realizing that there could be confusion on what type of report is being billed. The carriers have been aggressive about billings for these reports even though the providers could have billed for treatment without a QME certification.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Florida Gynecologist Who Treated Incontinence Sentenced to Federal Prison After Being Convicted at Trial of Health Care Fraud

Going to trial is a difficult choice for health care providers in paper fraud cases where there are numerous and obvious billing errors. The issue is usually whether the government can prove beyond a reasonable doubt that there was intent to defraud and not billing errors. A recent case shows what happened when a Florida physician went to trial, testified and lost at trial. Obviously, it was a very difficult decision for her and her family which included teenage children. The sentence was dispensed this week.

On April 21, 2019, Sheetal Kanar Kumar, M.D. of Stuart, Florida, was sentenced to a total of 24 months in prison, to be followed by 2 years of supervised release. This sentence came after a trial in February where a federal jury convicted her of committing 23 acts of health care fraud. She was acquitted of 6 counts of health care fraud. Dr. Kumar testified on her own behalf at trial. 

According to the court record, including evidence introduced at trial, Dr. Sheetal Kumar owned and operated the medical practice Advanced Healthcare for Women in Stuart, Florida.  Dr. Kumar was an obstetrician and gynecologist who treated incontinence.  Dr. Kumar testified at her trial and according to the press testified that she did not plan a fraud and if there were billing errors she should have been allowed to pay the amounts back before being indicted.  

From January 2014 until July 2017, the government alleged that Dr. Kumar submitted or caused the fraudulent submissions of claims to Medicare, Medicaid and private insurance companies.  The fraudulent claims sought money for specific health care benefits, items, and services that were not provided as billed.  As a result of such false and fraudulent claims, Medicare, Medicaid and private insurance companies, made payments in the approximate amount of $637,000.

Attorney Commentary: The problem with a felony case is that it is not just the conviction but the collateral consequences that will follow a professional for the next 5 to 10 years, long after any sentence is served. Whether it is loss of a professional license, exclusion from Medicare and Medicaid programs, loss of a DEA license, loss of insurance contracts, the list of effects goes on and on.  This is why anyone billing Medicare and Medicaid should have a compliance plan which will give a "safe harbor" and avoid the allegations of criminal fraud and keep the case in a civil and administrative place. 

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law

Sutter Health LLC, a Medicare Advantage Provider, Pays $30 Million To Settle Alleged Overpayment Based on Beneficiaries' Health Status Risk Scores

It is not just fee-for-service providers that have audits and civil qui tam cases. Managed healthcare is facing review as well. Even providers who are paid capitation fees should be mindful of the codes submitted to managed care. A recent case illustrates why. 

On April 12, 2019, Sutter Health LLC, a California-based healthcare services provider, and affiliated entities (Sutter East Bay Medical Foundation, Sutter Pacific Medical Foundation, Sutter Gould Medical Foundation, and Sutter Medical Foundation) agreed to pay $30 million to resolve allegations that these affiliated entities submitted inaccurate information about the health status of beneficiaries enrolled in Medicare Advantage Plans known as "risk scores," which allegedly resulted in the plans and providers being overpaid. Sutter Health is headquartered in Sacramento, California.  

   

Under Medicare Advantage, also known as the Medicare Part C program, Medicare beneficiaries have the option of enrolling in managed healthcare insurance plans called Medicare Advantage Plans (“MA Plans”) that are owned and operated by private Medicare Advantage Organizations (“MAOs”).  MA Plans are paid a capitated, or per-person, amount to provide Medicare-covered benefits to beneficiaries who enroll in one of their plans. 

Federal Charges Can Come From Billing Private Health Insurance: San Francisco Acupuncturist Indicted On Health Care Fraud Charges For Alleged False Billing and Upcoding

We are seeing an increase in investigation of acupuncturists and chiropractors relating to billings to private insurance companies. The charges can result from upcoding, billing on the wrong dates, miscoding and other acts and omissions. There is a difference between fraud and billing errors. Criminal fraud cases require proof beyond a reasonable doubt of an intent to defraud.

Health care providers have often thought that if they are not billing Medicare or Medi-Cal, they will not be the subject of federal investigation. Now that private insurance is subsidized by the government for low income individuals, there is a significant push to investigate these cases. In addition, private insurance companies are submitting the cases for prosecution. One recent case shows what these cases can look like. It also show that coding matters and claim submissions if not accurate can lead to fraud allegations.

On March 7, 2019, a federal grand jury indicted San Francisco acupuncturist Haichao Huang, charging him with health care fraud and making false statements relating to health care matters.  An indictment is not evidence and Mr. Huang is presumed innocent. 

According to the indictment, the government alleges that from February 2013 through June 2018,  Mr. Huang, age 46, was a health care provider who offered acupuncture, physical therapy, massage, and other services at his office in San Francisco.  The indictment alleges that Mr. Huang submitted claims for reimbursement to his patients’ health insurance plans, claiming that he provided reimbursable services and treatments when, in fact, he knew that the billings were false and not properly reimbursable.  

The indictment gives three examples of the ways in which Huang allegedly submitted billings for reimbursement.  First, Mr. Huang allegedly submitted requests for reimbursement for acupuncture and other treatments when, in fact, the patient had received either much shorter periods of treatment or no treatment at all.  This could be an upcoding situation or what is called "ghost billing" (billing for service that was not provided).

Second, after a patient reached the limit of acupuncture sessions allowed by the relevant insurance plan, Mr. Huang allegedly billed the plan for other types of treatments and services that were not provided in order to continue receiving improper reimbursements.  

Sentencing Update: California Doctor Sentenced To 63 Months In Federal Prison For Health Care Fraud. Doctor's Testimony At Trial Resulted in Longer Sentence. Doctor Husband Sentenced to One Year and One Day. Case Is On Appeal.

In federal court, one important issue is whether to testify or not testify. It is a more critical issue in federal court due to a federal judge's ability to increase the sentence for "obstruction" if the judge thinks the defendant misrepresented the truth. 

These same concerns are in state court but there is not usually the concern about the impact on sentencing. Instead there is the usual concern about making it appear that the burden of proof has shifted to the defense.

In a recent case, a doctor defendant received a harsh sentence based in part on the judge adding time for "obstruction" due to her testimony at trial.  On August 28, 2018, family practitioner Dr. Vilasini Ganesh was sentenced to 63 months in prison for health care fraud and making false statements related to a health care benefits program. We had reported on this case previously after the 8-week trial when she and her partner were convicted.

During Dr. Ganesh’s sentencing hearing, Judge Koh specifically stated that Dr. Ganesh  "obstructed justice" by misrepresenting her understanding of the legal system, the amount of money she was paid by insurers, and whether she understood that it was improper to “upcharge” when submitting claims to insurers. The jury had rejected a defense as well that the doctor's mental state contributed to her lack of understanding of the billing rules.

Medical Device Maker AngioDynamics Agrees to Pay $12.5 Million to Resolve False Claims Act Allegations

Medical device companies are being held responsible for false and misleading promotional claims as well as advising medical providers on what billing codes to use. A recent case shows how these cases can proceed.

On July 18, 2018, it was announced that medical device manufacturer AngioDynamics, Inc. agreed to pay the United States a total of $12.5 million to resolve allegations that the company caused healthcare providers to submit false claims to Medicare, Medicaid, and other federal healthcare programs relating to the use of two medical devices, LC Bead and the Perforator Vein Ablation Kit (PVAK). 

The claims resolved by the civil settlements are allegations only, and there have been no determinations of liability.  

AngioDynamics will pay $11.5 million to resolve allegations that the company caused false claims to be submitted to government healthcare programs for procedures involving an unapproved drug-delivery device that was marketed with false and misleading promotional claims.  

Los Angeles Clinic Owner, Physician, Office Manager, Insurance Biller and Former Insurance Investigator Indicted for Health Care Fraud. Charged With Billing for Services Not Provided and Giving Patients Free Cosmetic Procedures for Insurance Information.

On May 22, 2018, five people linked to two Los Angeles (San Fernando Valley) clinics were arrested on federal health care fraud charges for allegedly inducing patients to visit the clinics with promises of "free" cosmetic procedures, using the patients' insurance information to submit fraudulent claims to at least eight health insurance companies and then using some of the fraud proceeds to provide patients with the free cosmetic procedures.

An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed innocent until and unless proven guilty.

The government’s unsealed Indictment claims that Roshanak (“Roxanne” or “Roxy”) Khadem operated two clinics – R and R Med Spa, which was located in Valley Village until early 2016, and its successor company, Nu-Me Aesthetic and Anti-Aging Center, which operated in Woodland Hills. Ms. Khadem was arrested and charged along with four others:

Dr. Roberto Mariano, 59, of Rancho Cucamonga, a physician who helped operate the clinics; 

Marina Sarkisyan, 49, of Panorama City, who was the office manager at the clinics;

Lucine Ilangezyan, 38, of North Hills, an employee and insurance biller for the clinics; and

Gary Jizmejian, 44, of Santa Clarita, a former senior investigator at the Anthem Special Investigations Unit, the anti-fraud unit within Anthem that is responsible for investigating health care fraud committed against the insurance company. 

United States Resolves Civil Claims That Philadelphia Cardiologist Billed Medicare For Unnecessary Stent Procedures After Voluntary Self-Disclosure

Vidya Banka, M.D., a cardiologist and former director of Pennsylvania Hospital’s cardiac catheterization lab, has entered into a civil settlement agreement with the United States to resolve allegations that he improperly submitted Medicare claims for unnecessary cardiac stent procedures.  Here is the U.S. Attorney's Office press release about this case.

The University of Pennsylvania Health System (“UPHS”), which owns Pennsylvania Hospital, brought the matter to the United States’ attention through a voluntary self-disclosure relating to conduct from 2010 to 2012. In January 2017, UPHS reached a separate settlement with the United States. The United States then continued to investigate Dr. Banka and it resulted in this settlement where he pays $126,617 and agrees to a 5 year OIG exclusion.  This is usually a civil qui tam settlement with the government and is not a criminal matter.

Voluntary self-disclosures by hospitals are obviously not a free pass for the individual providers or group providers involved and the hospital's self-disclosure did not protect the provider from exclusion.  The exclusion for a cardiologist is a tough consequence given that it will make it impossible for him to perform any procedures at any hospital that accepts Medicare or government funding for 5 years. 

Posted by Tracy Green
Green and Associates

Florida Physician and Ex-Wife Indicted in Health Care Fraud Conspiracy For Alleged False Claims to Medicare and Blue Cross Blue Shield for Allegedly Using False Diagnoses of Rosacea, Acne, and Actinic Keratosis to Perform Chemical Peels, Dermabrasions, and Acne Surgery

The world of private insurance billing has changed in that federal and state authorities will be brought in for claims of insurance fraud. In the old days, if a claim was denied it was denied. If it was approved, that was the end of it. 

There are dermatology and plastic surgery physicians who understand what procedures are covered (rhinoplasty due to deviated septum/sleep issues, laser treatments for serious rosacea or acne scars, etc.)where those procedures will also improve appearance.  There are other patients and physicians who push the envelope to create a diagnosis in order to get insurance reimbursement.  

The issue is where is the line? How far should doctors go to help patients get insurance coverage for cosmetic treatments? In today's world, a recent case can show the legal issues present when patients' insurance is billed for for cosmetic procedures.

Two Northern California Doctors Face Sentencing in April 2018 After Being Convicted by Jury of Health Care Fraud After 8 Week Trial for Billing for Unperformed Services, Unseen Patients and Other False Billing Statements

Years ago, health care fraud cases would only be brought in extreme cases for ghost billing or outrageous conduct. We are seeing cases involving upcoding the office visit, not adding a physician to the group or not dropping the physician to the group, and for exaggerating conditions. A recent case seems to fit in that profile.  

Two physicians who went to trial and were convicted of some counts are awaiting sentencing. Dr. Vilasini Ganesh, a family practice physician and head of Campbell Medical Group, was convicted of 10 health care fraud and false statements relating to health care matters and Dr. Gregory Belcher (an orthopedic surgeon) was convicted of one count of making false statements relating to health care matters. Both were acquitted of some counts. There was an 8 week trial before the Honorable Lucy H. Koh, U.S. District Court Judge, and sentencing is now set for April 4, 2018 before the same judge.

The government contended that the evidence at trial showed that from 2009 to 2014, Dr. Ganesh submitted false and fraudulent claims to several health care benefit programs for services that she knew were not properly payable, by including claims for days when the patient had not been seen by the provider, exaggerated the amount of time spent with the patient, and submitting claims showing patients were seen by another physician provider who was no longer affiliated with her practice. There was alleged billing when the office was closed or the doctors or staff were out of state.  The government also contended that Dr. Belcher had on at least one occasion submitted a false claim in connection with a billing matter related to his physical therapy practice.  

This case moved relatively quickly since it was in July 2017 that the doctors were indicted by a federal grand jury charging them with one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349; one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); and multiple counts health care fraud, in violation of 18 U.S.C. § 1347, and 2 and false statement relating to health care matters, in violation of 18 U.S.C. § 1035.   

The maximum sentence is not indicative of what the sentence will be but it still frightens any physician or individual faced with these charges. The maximum statutory penalty for each count in violation of 18 U.S.C. Section 1347 is 10 years imprisonment and a $250,000 fine plus restitution, if appropriate.  The maximum statutory penalty for each count in violation of 18 U.S.C. Section 1035 is five years imprisonment and a $250,000 fine plus restitution, if appropriate.  However, any sentence will be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553. 

I would assume that there may be motions for a new trial, possible appeals and potential resolutions given that the acquittals on the money laundering counts and some of the other counts.

Posted by Tracy Green, Esq.
Green and Associates  

Scripps Health to Pay $1.5 Million to Settle False Claims Act for Services Rendered by Physical Therapists Who Did Not Have Billing Privileges or Were Not Supervised by Authorized Provider

One issue I see happen with medical groups or providers is when physicians or other health care providers are not properly added to the group before they provide services to patients. Often this occurs when the administrators do not ensure it is done and then when it goes to billing, the biller can't use the NPI number of the rendering provider and so they use the NPI of a different provider. This can be a false claim when done this way. 

There are also complexities when a decision is made to bill the service as "incident to" a physician services but the rules here are complex and if not followed correctly that can also be viewed as a "false claim." A recent case show that this can happen at hospitals or large providers as well.

On or about January 19, 2018, Scripps Health (Scripps), a health care system based in San Diego, California, agreed to pay $1.5 million to resolve allegations that it violated the False Claims Act by charging federal health care programs for physical therapy services that were rendered by therapists who did not have billing privileges for these programs and were not supervised by an authorized provider.  The settlement resolves allegations filed in a federal qui tam lawsuit filed by a former employee where the U.S. decided to intervene and join. The settlement is not an admission of wrongdoing. 

  

Medicare and TRICARE (and private insurance and Medi-Cal/Medicaid as well) limit billing privileges to enrolled providers. Services from unenrolled providers can be billed as “incident to” the services of an enrolled physician, but only if the physician provided direct supervision. Direct supervision is quite specific in what falls under it.  

In this civil health care lawsuit dispute, the United States alleged that Scripps billed Medicare and TRICARE for physical therapy services provided by therapists without billing privileges and without the appropriate supervision by a physician. The United States intervened in a whistleblower lawsuit filed by a former Scripps employee.

Suzanne Forrest, a former Scripps employee, filed a federal lawsuit under the qui tam provisions of the False Claims Act (FCA). The FCA permits private individuals to sue for false claims on behalf of the government and to share in any recovery.  The civil lawsuit was filed in the Southern District of California and is captioned United States ex rel. Forrest v. Scripps Health, Case No. 16-CV-0634. As part of this settlement, Ms. Forrest will receive $225,000. 

While the claims resolved by this settlement are allegations only and there has been no determination of liability, this is an expensive lesson for the hospital. It is one that other providers can learn from. Understanding how billing "incident to" is allowed, the scope of "direct supervision," and when providers need to be added to a group or hospital will help prevent civil qui tam lawsuits, audits for overpayment and/or criminal investigations. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Los Angeles Dentist Charged With Fraud for Allegedly Billing Insurance Carriers for Services Not Provided Over 7 Year Period

We have seen an increase in audits of dentists by private insurers. Big data and updated computer systems have made it easier for insurance carriers to flag suspicious billings. 

If intentional billing for services not provided is found, it can be referred for criminal prosecution and/or to the Dental Board. This is one reason to handle audits very carefully and to address any billing errors or other issues in a way that does not create additional problems.

A Los Angeles dentist, Carlos Maria Vallarta Fausto, self-surrendered on a case filed by Los Angeles District Attorney's Office after he was charged with two felony counts of insurance fraud for allegedly charging insurers more than $31,000 in billings for services not performed on patients in his Los Angeles area dental practice between January 1, 2007 and December 31, 2014. Dr. Fausto is presumed innocent and a felony complaint is not evidence. The bail on this case was set at $25,000 and he was released immediately.

After an audit, an insurer filed a complaint against him with the California Department of Insurance which launched its own investigation, which allegedly revealed Dr. Fausto billed multiple insurance companies for dental treatment he did not render to his patients over this seven-year period. The case has also been referred  to the Dental Board of California, which is responsible for licensing dentists in California.

Attorney Commentary: There are several things to note from this case. First, even with a loss amount of $31,000 over a seven-year period, the case was referred criminally. Years ago, low loss amounts were not filed. Prosecutors are getting more aggressive about smaller cases especially where they believe there is "ghost" billing or billing for services not provided.

Second, these allegations are from years ago but the statute of limitation continues to run where the alleged fraud is not discovered.  Thus, even though some of the services were 10 years old (2007), charges were just filed. It takes years for these cases to be investigated and the alleged misconduct stopped in 2014.  The state statute of limitation is 4 years from date of discovery.  

Third, it should be remembered that even if the criminal case is dismissed or won, the dentist will still need to address the Dental Board which has a lower burden of proof and usually waits until the criminal case is concluded. The Dental Board can be very aggressive and the dental license is the tail that wags the dog in this type of case.

Finally, periodic self-audits, compliance and making sure that insurance billing is accurate is good business. When you bill insurance companies or the government, you need to be extra careful. The old saying of it's better to ask forgiveness than permission doesn't work in government or insurance billing.  

Even a $30,000 billing issue over seven years does not always just go away by paying the funds back in today's world.  I have seen cases where repayment upon discovery of erroneous billing helped avoid criminal and Dental Board referrals but these cases need to be handled carefully and with a view of the big picture at 40,000 feet.

Posted by Tracy Green, Esq.

Email: tgreen@greenassoc.com

Office: 213-233-2260

California Dermatologist Indicted For Health Care Fraud for Allegedly Billing Microdermabrasions or Chemical Peels Performed by Staff as Acne Surgeries to Private Insurers

The number of prosecutions for health care fraud involving private insurance is on the rise as shown by a recent case. 

In years past, the insurance carriers would have audited and demanded a repayment or cancelled their contract. That has definitely changed.

On May 11, 2017, a Fresno federal grand jury returned an eight-count indictment for health care fraud against dermatologist Dr. Basil Hantash who is the medical director of Advanced Skin Institute (ASI) in Turlock, California. 

According to the Indictment from 2011 through April 2016, Dr. Hantash submitted claims to private insurance companies requesting payment for performing acne surgeries. It is alleged that staff at ASI had performed only "cosmetic" procedures known as microdermabrasions or chemical peels.  

California Oncology Therapy Center Pays $2.8 Million to Resolve Allegations of Providing Radiation Treatments Without Radiation Oncologist Present

The nuances of "incident-to" billing and the alleged lack of physician supervision from 2006 to 2015 at one of its locations is at the heart of a false claims settlement between Valley Tumor Medical Group Oncology and the United States. The case is United States ex rel. Shindler v. Valley Tumor Medical Group, et al., CV 15-2249.

Valley Tumor paid $2,865,693 to the United States and $134,307 to the State of California on April 13, 2017 to resolve allegations in the lawsuit that it submitted fraudulent bills to the Medicare, Medi-Cal and TRICARE programs when it did not have the required supervision at its Ridgecrest location (which is now closed).  

Owner Of Pennsylvania Medical Staffing Company Sentenced For Billing Medicaid for Services Not Provided, Provided by Others or Not Qualified to Provide Services

Medical staffing companies need to be careful when billing for services and for providers. One issue that arises is when a licensed provider is not available and the services are provided by a different person or someone who is not licensed yet. 

We have seen this with home health agencies as well. Companies must be very careful about controls on who performs services in staffing agencies. A recent staffing company case shows what can happen when there are shortcuts and false documentation. The case can go criminal.

On December 21, 2016, Rose Umana, owner and operator of Vision Healthcare Services, Inc. (Vision) of Pennsylvania, was sentenced by United States District Court Judge Sylvia H. Rambo to 36 months in prison. Vision is a medical staffing company and home care services provider servicing several Pennsylvania counties and has been enrolled under Medicaid since 2006. This sentence was for making false statements relating to health care matters, engaging in monetary transactions involving criminally-derived property, and identity theft.  

According to the United States Attorney's Office, between January 2012 and January 2014, Ms. Umana, in her position as owner of Vision, created false identification documents and fictitious occupational licenses for workers. It is also alleged that Ms. Umana and Vision: 
(1) submitted bills to Medicaid for medical services not provided by the workers, 
(2) billed Medicaid for services provided by someone other than the person claimed to be the provider, and 
(3) billed Medicaid for services not provided or provided by someone not qualified to provide the service.

21st Century Oncology to Pay $19.75 Million to Settle Civil False Claims Lawsuit for Alleged Unnecessary Laboratory FISH Tests Ordered by Four of Its Urologists. No Admission of Liability But Corporate Integrity Agreement Required

On December 18, 2015, 21st Century Oncology LLC, a publicly traded entity which operates in 17 states, agreed to pay $19.75 million to the government to resolve allegations that it violated the False Claims Act by submitted claims to Medicare and Tricare forfluorescence in situ hybridization, or “FISH,” tests that were allegedly not medically necessary. As with most settlements, there was no admission of liability.

21st Century is a nationwide provider of integrated cancer care services that is headquartered in Fort Myers, Florida. False claim lawsuits often get settled once the government intervenes due to the high litigation costs and potential exposure in litigating with the government, especially oncology which relies heavily on Medicare billing. 21st Century had to pay an extra $528,000 to the qui tam relator's attorneys' fees and costs.

FISH tests are laboratory tests performed on urine that can detect genetic abnormalities associated with bladder cancer.  The government alleged that 21st Century submitted claims for unnecessary FISH tests that were ordered by four of its urologists, Dr. Meir Daller, Dr. Steven Paletsky, Dr. David Spellberg and Dr. Robert Scappa, all of whom practiced in the Fort Myers area.  

The government also alleged that 21st Century encouraged these physicians to order unnecessary FISH tests by offering bonuses that were based in part on the number of tests referred to 21st Century’s laboratory.  This type of marketing and bonus arrangement is used to show how the economics affect medical necessity decisions.

The claims here were brought to the government's attention by a former employee. The allegations were originally brought in a lawsuit filed by a whistleblower, a former 21st Century Oncology LLC medical assistant. The government intervened and this settlement resolves the lawsuits. The former 21st Century employee whistleblower will receive $3.2 million as her share of the recovery in this case.

Compliance and Corporate Integrity Agreement One of the reasons our office pushes health care businesses to have a fraud compliance plan is so that any allegations by employees are raised at the first opportunity or at the exit conference in order to avoid expensive qui tam lawsuits. Larger companies and those that are publicly traded and can afford large repayments such as the one here ($20 million) get the opportunity for Corporate Integrity Agreements while smaller companies are more hard pressed to obtain them.

As part of the settlement, the U.S. required 21st Century Oncology to enter into a Corporate Intergrity Agreement. Under this Agreement, 21st Century will be required to do the following (much of which is in a regular compliance plan) for 5 years:
(1) appoint a chief compliance officer; 
(2) maintain its existing compliance program and compliance committee;
(3) provide management certifications;
(4) screen employees to ensure they are not excluded;
(5) provide certain compliance training and education; 
(6) engage an independent review organization; and
(7) other enumerated requirements.

Failure to comply with the plan can result in 21st Century from being excluded from Medicare. Generally, companies are very careful to be compliant in these cases.

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

California Pain Clinic & Physician Settle Federal Qui Tam Case For Allegedly Upcoding Medicare, Medi-Cal and Tricare – Case Filed by Former Biller Took 6 Years to Resolve

On November 19, 2014, a federal qui tam lawsuit was settled in Los Angeles by the U.S. Attorney’s Office civil division and physician Dr. Narinder S. Grewal and his pain clinic, the Santa Clarita Surgery Center for Advanced Pain Management.  Dr. Grewal agreed that he and the clinic would pay $1,087,176.09 to the United States for Medicare and Tricare billing and $112,823.91 to the State of California for Medi-Cal billing.

This is not a criminal case only civil. As a qui tam attorney, one common driving force that parties often settle these cases, however, is to make sure that the U.S. Attorney’s Office does not use the discovery process to build a criminal health care fraud case.

The background is as follows. On April 16, 2008, a person (Chandana Basu) who did  billing and collection for Dr. Grewal and his clinic (who in qui tam cases gets called a “whistleblower”) had lawyers file a qui tam lawsuit against the doctor and his clinic.  On November 10, 2009, an amended complaint was filed. Ultimately, the key issue was whether or not the United States and/or the State of California would intervene in the case.

Basu’s lawsuit alleged that Grewal and his clinic obtained improper reimbursements from government-run health insurance programs, including Medicare, Medi-Cal and Tricare, a federal health insurance program for military and related military personnel. The lawsuit alleged that Grewal and his clinic submitted fraudulent claims by “upcoding” medical services, which means that he allegedly submitted bills that were not justified by the services that were actually provided.

Negotiations ensued between the U.S. Attorney’s Office, the plaintiff biller’s attorneys and the doctor’s attorneys. A settlement was reached. On November 19, 2014, the U.S. Attorney’s Office filed a notice that it and the State of California would intervene in some allegations in the first amended qui tam complaint and would decline to intervene in other. As part of the settlement, the case was dismissed with prejudice against the doctor and the clinic. The settlement agreement is confidential but the payment amounts have been released. 

The False Claims Acts permit a private person to sue on behalf of the United States and California, and to share in the proceeds of the suit. As a result of the settlement announced today, Basu will receive a total of $204,000. The settlement was announced after United States District Judge Andrew J. Guilford unsealed the lawsuit. The parties asked the court to dismiss the suit.

Attorney Commentary: Billing errors and upcoding can be serious issues. It is critical for practices with a significant amount of governmental billing have a compliance plan in place in order to avoid qui tam cases, audits for recovery and health care fraud allegations. This is risk management and former employees will be the first to file qui tam cases or call in an anonymous complaint to Medi-Cal, Medicare or Tricare.

Posted by Tracy Green, Esq.

Green and Associates

Phone: 213-233-2260

I Have Received A Request For Patient Or Client Files From My Licensing Board, The Government Or An Insurance Company. What Should I Do?

One of the frequent questions we have in our practice is: I have received a request for a patient or client file from my licensing board, the government or an insurance company. What should I do?

One thing to remember is that every case is different and varies upon the facts. No one strategy works for each case. However, an experienced objective attorney can help you take it seriously without panicking and help prevent the complaint from turning into disciplinary charges or mitigating the problem.

Sometimes professionals turn it over to their office manager or secretary and later find that not all of the chart or file was copied, that an issue that was apparent (such as missing operative reports or other records) was not addressed, and did not think about having an expert look at the chart. Often if notes are not legible or there is a lengthy history, we will advise clients to prepare a summary of the chart and the treatment at the time the file is submitted.

One thing to remember is that if you have received this request it means that there is a complaint and that an investigation is open.  This is the time to be the most proactive. The earlier you can prevent an investigation from going forward, the better. Once an Accusation or disciplinary charge is filed or a referral is made to the Special Investigations Unit, it is difficult to unwind it. We find that often administrative or criminal charges were filed or an insurance company issues a sanction because the professional did not adequately address the investigation at an early stage.

One important piece of advice: do not simply produce the file and nothing else. Here are some of the things, among many, that can be done at this early stage:

1.  Take the opportunity to ensure the requesting entity (board, insurance company or governmental agency) has full access to all relevant information.

2.  If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case. Have an experienced attorney, expert or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary or criminal proceedings. Remember that everything you do is evidence.

3.  If there is significant handwriting in the file, dictate the notes and have them transcribed so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.

4.  If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.

5.  The Board, insurance company or governmental agency can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.

6.  Do not alter, backdate or create any records unless such records are properly created and dated.  This can lead to professional misconduct charges and can lead to obstruction of justice charges.

7.  As mentioned above, make sure the entire file is copied. If there are any missing records, handle it now and conduct a thorough and diligent search. I have seen cases proceed to the interview stage because the file appeared to be deficient and below the standard of care simply because there were missing records.

8.  Once you hire an attorney, have him or her send a letter of representation so the
Board contacts the attorney and does not show up at your office for an impromptu interview.  Be prepared on how you and your staff can politely decline requests for interviews without your attorney present.

9.  Be prepared for any interviews. It is key to be prepared and treat it as if you were testifying in court. Lack of preparation hurts in many ways since they are recorded. Sometimes it may be decided that there should be no interview

10.  You should also look into whether your malpractice coverage will cover the cost of the attorney. Do not fear that your premiums will go up because insurance carriers prefer that things be handled professionally from the beginning because it prevents malpractice or other cases. Missing documentation in charts, failure to produce entire charts and failure to explain issues early on or obtain expert help can make things worse.

11.  Think about whether this case merits hiring an expert at an early stage. At a minimum, it may make sense to have at least another professional in the same field to review the chart in an objective to see if they spot any issues that you and the attorney may be missing.

12.  If there are issues that you see, think about whether a compliance or corrective action plan should be started.  Think about whether further education is needed (such as continuing education) in the area at issue including record keeping classes.  The Boards want to see that the professionals can spot these issues and fix their own mistakes. This is mitigating and rehabilitative evidence.

This is simply a starting point and it is critical to treat each case differently and not in a cookie cutter manner.  In cases where there are fraud or other issues that could be the basis of criminal charges, they may be handled somewhat differently but it is key to address it early.

If you want advice from our law firm, feel free to contact us or seek the advice of experienced counsel at the earliest opportunity.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Phone: 213-233-2260
Email:  tgreen@greenassoc.com
Website: www.greenassoc.com

Health Care Attorney Tracy Green Quoted in USA Today Article On Chiropractors Being One Largest Medicare Billers. Article Is Result of CMS Releases for First Time Data On Medicare Payments For 2012 By Provider.

Ever since Medicare decided last month to release its 2012 data showing all the payors (physicians and other suppliers), journalists have been reviewing the data and trying to determine how certain providers are getting paid such large amounts. The CMS website has all the data in an Excel spreadsheet that can be downloaded and each physician and supplier can be searched. It's actually an incredible disclosure of private information in that physicians' and suppliers' addresses are there as well as their collections.

I must admit that I searched for my own clients to let them know what the data revealed and gave my clients a heads' up that they may get calls from reporters (which happened in a couple of cases). But providers should review this data so they know what is there. Technically, this is private information but be aware that your patients, employees, friends, ex-spouses, et al., can review this to see your gross collections (of course it does not address

For many of the physicians and suppliers, the numbers are misleading since the billing may reflect an entire group that is being billed under the name of one owner. For others it may be an accurate reflection. However, this is the first time the collections have ever been revealed. The New York Times has posted a link that allows one to search by provider name.

One of the questions that arose is how are chiropractors such a large Medicare group and why are their billings so high? USA Today looked at chiropractors and in the article entitled "Some Chiropractors Making Big Medicare Paid Adjustments," I was quoted on why chiropractors are being looked at in particular. This reporter's editor was particularly interested in chiropractors.

My quote was:

"Los Angeles health care lawyer Tracy Green has represented many chiropractors and says the specialty has "a fair amount of regulatory problems and fraud." Part of the problem is that "they are the ones doing the care" frequently in auto insurance fraud cases and some run pain management clinics, a field that's closely watched given all the pain medication abuse and fraud."

Although it doesn't reflect fully my comments, it is important for providers to see where they are in this list and how they rank compared to similar providers since it will be used as a source of audits and scrutiny. There is no question that physical therapy and chiropractor providers will be at risk for more audits since the charting requirements are incredibly strict and CMS often challenges on medical necessity.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Los Angeles, California 90017
Phone: 213-233-2260
Email: tgreen@greenassoc.com