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Medicare Fraud Enforcement Continues in Florida
You cannot overlook the seriousness of the government’s continuing efforts to root out healthcare fraud. Just last week, 10 Miami residents pleaded guilty to being part of a $25 million Medicare fraud conspiracy.
The fraud was in connection with home health care and physical therapy services — two frequent areas of fraudulent activity. The defendants included “patient recruiters” nurses, and facility administrators.
Providers must exercise caution in healthcare activities that are so competitive that aggressive and dishonest patient marketing activities are required. Home health, physical therapy, diagnostic services, and DME are several activities that are being seriously scrutinized.
Compliance plans should be put in place by all healthcare providers. Internal audits should be performed. Deficiencies should be addressed. Training is a must if an environment of compliance is desired.
Predictive Modeling Technology from HHS Could Enhance Payor Compliance Programs
My partner, Rob Slavkin, recently authored an Akerman Healthcare Practice Update about the Department of Health and Human Services’ “introduction of predictive modeling technology as part of the government’s fraud investigation arsenal, as well as a new collaborative tool that enables private payors to enhance their own monitoring and auditing programs.” The Practice Update can be found here.
This is part of the government’s ongoing efforts to root out healthcare fraud.
For a reminder at how serious the government is about this, look at what the OIG has been posting on its website.
The adoption and implementation of compliance programs continue to be one of the most valuable tools to protect healthcare providers, including medical billing companies and DME suppliers, from purposeful or accidental employee activities that may cause exposure to fines, penalties, or possible exclusion from the Medicare and Medicaid programs. Having and following a compliance can also mitigate criminal penalties.
There is much enforcement activity going on, and it too late to adopt a compliance program when the barbarians are at the gate.
Health Care Fraud is Not a Viable Business Model
Among the 20 or more separate investigations that led to arrests for Medicare or Medicaid health care fraud during the first 18 days of August are the following:
- New York Men Convicted of Health Care Fraud in Wheelchair Scam (DME)
- Two Charged in Medicaid Fraud Schemes (Home Health)
- Miami Mother Sentenced To Jail In $12.3 Million Health Care Fraud Scheme (DME)
- Baptist Healthcare, Inc. And Hardin Memorial Hospital To Pay $8,900,000 To Settle Improper Billing Of Medicare (improper DRG codes)
- Los Angeles Jury Convicts Two Church Pastors and Their Employee of $14.2 Million Medicare Fraud Scheme (DME)
- Physician And Pharmacist Among Those Arrested In Drug Conspiracy And Health Care Fraud Case
- Miami Woman Is Tenth Person Arrested For Her Role In Leading $27 Million Health Care Fraud Conspiracy (DME)
- Miami Home Health Nurse Sentenced To Ten Years’ Imprisonment For Health Care Fraud (Home Health)
- Recruiter in Multi-Million Dollar Health Care Fraud Scheme Pleads Guilty to Conspiracy to Violate the Anti-Kickback Statute (DME, Anti-Kickback)
- Hogsett Announces Indianapolis Man Charged In Health Care Fraud Scheme (Ambulance Transportation Services; Medicaid)
- Orange County Medical Center And Doctor Who Bilked Medicare Agree To Pay $7.5 Million To Settle Fraud Case (False Claims)
- Nursing Home Administrator Arrested for Health Care Fraud and Taking Kickbacks (Ambulance Transportation Services)
More of the carnage can be found at the OIG’s Civil and Criminal Enforcement website.
Owner of Orlando Diagnostic Imaging Services Company Has Duty to “Understand Medicare and Medicaid Billing Requirements”
The HHS Office of Inspector General (OIG) announced yesterday that Administrative Law Judge Steven T. Kessel has upheld the OIG’s exclusion of Michael D. Dinkel from participation in all Federal health care programs for a period of 8 years.
According to the press release, the ALJ found that Dinkel was personally responsible for ensuring that his company, Drew Medical, billed and collected reimbursement appropriately and that he demonstrated reckless indifference to the propriety of the claims that his company presented. The ALJ also held that Dinkel had a duty to understand Medicare and Medicaid billing requirements and to apply them scrupulously to the claims that he caused to be presented.
This case revolved around false claims filed by Drew Medical to the Medicare and Medicaid programs for a radiological procedure known as venography. Drew Medical had not actually performed any such services.
The OIG did not consider that the payment of fines alone was sufficient and that exclusion from participating in government healthcare programs was appropriate.
Compliance Oversight for Healthcare Leaders and Compliance Plans
In a new seven minute video presentation, OIG Inspector General Daniel Levinson and Chief Counsel Lewis Morris discuss the role of compliance and its importance to the health care industry.
By now, I think we all know that compliance with healthcare laws and regulations is good, and that noncompliance can be very bad. There is nothing much to learn in seven minutes. However, there is an important reminder in the video that the OIG wants providers to have effective compliance plans in place.
Nursing homes are required by the healthcare reform law to have such plans, and the law gives the OIG the power to require other healthcare industry groups to have compliance plans.
It is only a matter of time before this requirement is imposed on physicians. The OIG published guidance for physician compliance plans over 10 years ago. That guidance is worth reading again. Similar compliance guidance can be found at the OIG website for other kinds of healthcare providers.
This is something that healthcare providers should not put off any longer.
CMS Issues Stark Advisory Opinion 2011-01
In CMS Advisory Opinion AO-2011-01, the Centers for Medicare & Medicaid Services issued an advisory opinion permitting a group to include a covenant not to compete in its employment agreement with a physician whose recruitment to the group was funded by a local hospital.
In its advisory opinion, CMS stated that the the physician recruitment exception to the Stark law “requires that the physician practice not impose additional practice restrictions on the recruited physician other than the conditions related to quality of care.” However, CMS acknowledged that, in its commentary to the Phase III Stark rulemaking, it had concluded “that non-competition provisions should not be categorically prohibited from recruitment arrangements.”
In determining that this particular noncompetition covenant did not impose practice restrictions that “unreasonably restrict the [p]hysician’s ability to practice medicine in the geographic area served by the [h]ospital,” CMS looked at the following factors:
- The time period restriction of one year was reasonable.
- The distance requirement of 25 miles was reasonable based on the geographic area served by the hospital.
- Even with the time period and distance restrictions, the physician would still be permitted to practice at certain hospitals both within and outside of the recruiting hospital’s geographic service area within the one year time period.
- The hospital had certified that the noncompetition covenat complied with applicable state and local laws.
As with all such advisory opinions, it is issued only to the requesting party and cannot be relied upon by any other individual or entity.
Nevertheless, this advisory opinion provides guidance for the first time on how CMS will analyze the language of the statute, the regualtions, and its own commentary in specific physician recruitment fact situations.
Medicare Fraud — Physical Therapy Clinic Employees
The Department of Justice announced yesterday another Medicare fraud scheme. This announcement dealt with employees of the Solstice Wellness Center in the Brooklyn-area.
The employees pleaded guilty to paying kickbacks to Medicare beneficiaries to induce them to visit Solstice where they were to receive physicians’ services, physical therapy, and diagnostic tests that were neither actually performed nor medically necessary. Solstice billed Medicare over $3.4 million.
NEW TECHNOLOGY TO HELP FIGHT MEDICARE FRAUD
Predictive modeling once was used to help pick stocks on the rise and now is going to be used to identify Medicare cheats.
CMS announced in a press release on June 17, 2011 that it will be using new technology to track down healthcare fraud. CMS states in its press release that this technology is similar to tools used by credit card companies. This is part of the White House’s continuing campaign to cut waste in the Medicare program.
You can learn more about this technology at this CMS Factsheet.
Whistleblowers Have Rights, Too
I just picked up this story from Outpatient Surgery.
Apparently, a sheriff in Winkler County, Texas decided to punish two nurses who complained about his physician friend. The nurses had filed an anonymous complaint about a variety of questionable practices by the physician. When the shreiff discovered who had filed the complaint, he charged the nurses with “misuse of medical information.”
The sheriff now faces jail time and a $6,000 fine.
Tampa Area Sleep Doctors Come under Federal Scrutiny
In a press release yesterday, the Department of Justice announced that a complaint has been filed under the False Claims Act (“FCA”) against Bay Area Sleep Associates LLC, d/b/a SomnoMedics LLC, and its owner, Edward Kilmer, Jr.
The complaint alleges that the defendants hired unlicensed sleep technicians to perform sleep tests at one or more of their facilities beginning in 2004 or earlier.
The lawsuit stems from a qui tam or “whistleblower” suit filed by William Revels, a former sleep study technician employee. The government has intervened in that suit. If the suit is successful, Revels will receive a percentage of the government’s recovery.
One take away from all this is that health care providers cannot think that no one will find out when they do bad things. Their employees know, and those employees, especially former ones, can be the eyes and the ears of the government. So, people do find out, and fraudulent providers need to beware.
Joseph Rugg's Health Law Blog 