DEFENDING MEDICAL PROFESSIONALS
MEDICAL FRAUD INSURANCE TEAMS PARTNER WITH PROSECUTORS
Insurance Companies FRAUD Units Team With Prosecutors
Insurance companies have specialized units (SIU) dedicated to investigating physicians, chiropractors, and other medical professionals. SIUs send shock waves through the medical community with high profile arrests.
The targets are physicians whose practices trigger medical fraud “red flags”. Some red flags for medical fraud are obvious but oftentimes a truly innocent physician can’t keep up with ever changing rules and regulations. Are lasers legit for treating rosacea ? Can you bill an insurance company for it? The answer is, it depends upon when you ask the question. And even if it is reimbursable, “what is rosacea”? What is treatable “rosacea”? Medical judgments will be questioned. Poor SOAP notes, lack of photos documenting the diagnosis, angry fired staff – can all cause an avalanche of misery for even an honest practitioner.
The Federal Register and other sources create a web of rules that likely no small medical practice or third party biller can master. A Medicare fraud lawyer must navigate different rules than a Medicare fraud lawyer and there are different rules for ERISA and non-ERISA plans. In other words, the rules are maddening and ever changing ! This is why a typical prosecutor relies so heavily on “assistance” insurance companies.
Are you the subject of a billing fraud investigation ? What are the red flags?
Some are obvious. SIU medical fraud investigations often follow complaints by vengeful employees or patients. Many SIU investigators rely upon reviews of spreadsheets or complex computer fraud models. Grey areas of practice like in office physical therapy (PT) and use of laser in treatments and procedures, as well as delegation of work to nurse practitioners (NPs), physician assistants (PAs), aestheticians, are all potential SIU fraud triggers. If you have a feeling that your bills are being handled more slowly, that strange patients are presenting with peculiar symptoms, if you recently fired a staff person …. be wary.
Remember that Medicare billing fraud is the focus of many federal investigations. Workers compensation fraud a major focus of many state insurance commissioners. Fraud defense lawyers know that politics drive medical fraud prosecutions. Many practices have grey areas and if your “grey” is in the political cross hairs, be cautious.
Former Law Enforcement Agents Work for Insurance Companies
Insurance companies often hire former law enforcement agents who are experienced in developing criminal fraud cases. Their years of establishing contacts within prosecutors offices give them inside / personal connections that put their investigative target (you), at a disadvantage. Watch a California Dept. of Insurance SIU Training video HERE.
They Follow Your Money – We Can Follow Their Money
Insurance companies provide funding to prosecutors. Special taxes on employers also support fraud investigations. This means there is a financial and emotional incentive for fraud prosecutors to file charges. The insurance companies become “crime fighting” partners to the district attorney white collar crime units. Medical practice management has many grey areas. Few white collar prosecutors have sufficient medical/medical billing/delegation of medical duty background to accurately assess the legitimacy of your conduct.
Many seminars are funded by insurance companies and some local prosecutors are “honored” with the opportunity to speak at those seminars to promote their careers. Prosecutorial objectivity is often compromised.
The SIU Units Define the Law
Seminars, in house training, and political lobbying are tools that change prosecutors’ INTERPRETATION of the law. There is no back and forth dialogue, there is only Iago whispering in Othello’s ear.
Professional boards such as medical boards, can and often will, provide guidance on contested issues. They can weigh in on unfair prosecutions and provide support. Unfortunately the boards are over worked, over politicized, and often leave the issue “to the courts”.
Set Your Alarm for 6:30 am
Police raids at 7 in the morning are videotaped by invited television news teams.
Press conferences are held by the Department of Insurance while the physician sits in jail waiting to be booked. By the time the physician has been released on bail, significant personal and reputational damage has been done. So much for innocent until proven guilty.
As one of our experts once testified, it’s all about “blue skies”. Once they arrest you, the insurance companies have already won. Word spreads in the medical community and physicians become very cautious – they run from the rain to the “blue sky”. 99244’s get billed as 99243. Your arrest saves the insurance companies millions of dollars.
Why Do They Raid My Home and Have TV Cameras
The Laws are Vague
The anti-fraud laws seem clear. Don’t commit fraud. Don’t submit false billings ! Don’t bill for services that you didn’t perform ! What could be easier ?
You’re honest, so you have no worries ………………………….. ? right ?
Maybe. If you regularly bill 99241-99245, you know that it is not always clear which code applies. If you consistently bill the grey areas in “your favor”, your computer score may be “skewed”. The little “UPCODE” / “BILLING FRAUD” light goes on in SIU Headquarters.
How much volume do you do? Do you treat a target community ? Will the insurance company negotiate with you, put you on slow pay, or is it more profitable for them to get you arrested?
The Laws Are Truly Vague
Here are some seemingly clear, but in practice vague, laws. California Penal Code 550; 18 United States Code 1035. Kickbacks (any benefit) are prohibited under a variety of laws including section 1128 of the Social Security Act. (See also: California Business & Professions Code section 650)
Walnut Creek a Hub for Top Medical Care (but beware of the “bean counters”)
Walnut Creek, California is the home of John Muir Medical Center. The concentration of medical practices in areas such as Lafayette, Danville, Blackhawk (all just a few miles from Walnut Creek), makes the Walnut Creek area an epicenter for high quality medical care. However, high quality medical care in hospital influenced Walnut Creek, may seem excessive to bean counters who compare that region to less highly serviced areas. Care above the norm may be questioned as if it is fraudulent.
Areas such as Los Angeles have an SIU/government focus on cosmetic treatments hiding as medical treatments. Areas (again like Walnut Creek) with major medical centers, may have scrutiny for excessive diagnostic tests in offices with their own EKG, X-ray, labs etc.. Our experience leads us to believe that areas with significant poor populations are also scrutinized for excessive treatment. (Like Stockton, California as an example)
More Hot Button Danger Areas for Medical Fraud
Currently, dermatologists are being looked at for the use of office staff to perform certain procedures. SOAP notes are viewed for “up diagnosing” to justify unnecessary (e.g. laser) treatments. Billing codes that require EITHER complex reasoning or 80 minutes of face to face time are misinterpreted as being valid codes ONLY if an actual 80 minutes are spent.
More generically, criminal fraud investigators are focusing on:
Misdiagnosis in order to bill for services not medically necessary.
Billing for services not actually provided.
Billing for one service (covered) when an uncovered service is provided.
Billing on days when a patient is not present.
Unbundling especially when combined with deceptive billing.
Excessive treatment especially with poor clinical documentation.
Does Your Case Justify Hiring a Specialist ?
Daniel Horowitz is a criminal defense law specialist. That certification is granted by the State Bar of California Board of Legal Specialization. There are many excellent criminal defense attorneys who have not obtained this certificate but consider this; to be a specialist, a criminal defense lawyer must “survive” peer review, judicial review, pass a comprehensive written exam, and have practical experience significantly above that of the average defense lawyer. To maintain the certificate, the criminal defense attorney must complete advanced level continuing education courses that focus on the criminal defense specialty. Daniel Horowitz has been a certified specialist for over 20 years. As of 8/23/2017 there was only 1 criminal defense specialist in Walnut Creek, California, 2 in Lafayette and approximately 200 statewide.