Here are just a few healthcare fraud cases of note during July 2016:
Three Miami men — $40 million in fines and restitution and 188 months of prison for billing for phantom home healthcare, money laundering, and kickback schemes.
New York surgeon — $25 million in false claims for billing for services not performed.
Maryland X-Ray company owner — 10 years prison for fraudulently billing bogus medical interpretations for diagnostic tests that resulted in two patients’ deaths.
New York physician — jail time for kickback with hospitals in exchange for referring patients to nursing homes.
South Carolina hospital — $17 million in fines for improper financial arrangements with referring physicians.
Illinois woman — $15.6 million and six years prison for fraudulent billing in home health services.
Texas physician — 63 months prison and $1 million in fines and restitution for falsely certifying patients for home health services.
Florida physician — 46 months prison and $2.1 million in fines and restitution for intentionally falsifying diagnoses to get higher Medicare advantage plan capitation payments.
In October 2013, the Florida Society of Anesthesiologists filed a qui tam action under seal as required, which named as defendants a large number of Florida GI physicians, surgery centers, and “company model” anesthesia providers. The action was unsealed and made public during the last week of March.
Chief among the FSA’s allegations is that the defendants violated the federal False Claims Act by billing and collecting for anesthesia services performed by captive “company model” anesthesia providers.
At its simplest, the term “company model” refers to an anesthesia company jointly owned by referring physicians and anesthesiologists that is formed to provide anesthesia services at the ambulatory surgery center that the referring physicians own. The jointly owned anesthesia company takes the place of anesthesiologists (or an entity owned 100% by them) which previously performed the anesthesia services for the ASC. By using the company model arrangement, the referring physicians are then able to share in the revenues generated by the anesthesia services that previously would go solely to the anesthesiologists who performed the services.
The OIG made it clear in its Advisory Opinion 12-06 posted on June 1, 2012 that the company model and similar arrangements “could potentially generate prohibited remuneration under the anti-kickback statute and that the OIG could potentially impose administrative sanctions.” The American and Florida Societies of Anesthesiologists had been urging the OIG to take action like this for a long time, and it is not surprising that the FSA would take the lead in filing a qui tam action on company model arrangements that continued after the OIG posted its opinion.
This is a very significant case. The U.S. Attorney’s Office has presently declined to intervene, but its investigation is ongoing.
The following infographic from the Suncoast Health Council compares various health factors between Pinellas and Hillsborough Counties, Florida:
The following email string from earlier today from physician leaders is very telling and tragic. The email discussion starts with this:
Many of you will recognize some of the themes in this piece written by a frustrated young physician who has made the tough decision to leave her practice. Some of you might have struggled with the same issues discussed in this essay.
Here are two quotes from her thoughtful essay:
“The phenomenon of patients as customers, the cultural rise of entitled incivility, and trusting Dr. Google more than their doctor has eroded some of the pleasure of patient care.”
“In the past decade, physician groups have been purchased by hospitals and conglomerations. Rather than being recognized for individual excellence by patients voting with their feet, this has resulted in doctors being interchangeable cogs in a system where patients/hour and shifts/month dictate value.”
Two physicians responded with the following:
As physicians, WE make the wheel go around. Yet we have allowed our knowledge, our expertise, and our unmatched dedication to be devalued by hospitals, insurance companies, politicians, etc.
I think that the more we are called providers and we do not educate the public about the time commitment and education that physicians put in to become the master of the profession then we lose. … medical students are very talented. We need to make this news because we are the only ones who can provide quality care and provide the impetus to decrease costs We are the only ones equipped to do so. The MD degree has tons of value and it is not an interchangeable cog in the wheel.
So true. My law practice focuses on representing physicians, which includes helping them evaluate and participate in opportunities as they deal with the onslaught of onerous laws, rules, and regulations. I constantly must remind my clients that physicians are and remain the sole source of value in healthcare. Notwithstanding that, many physicians, young and old, constantly ignore good opportunities for their practices because they are intimidated into choosing the wrong ones.
As the public member on the Board of Governors of the Florida Medical Association, I am pleased at the FMA’s focus (1) on lobbying legislators who are notoriously ignorant about physicians and the practice of medicine, and (2) on educating its members so that they can better understand and evaluate what is going on in the business of medicine.
I worry whether we can make a big enough impact quickly enough.
No other profession is faced with less respect or more demands or higher expectations than allopathic and osteopathic physicians.
This is not about “socialized” medicine, Obamacare, or anything other than economics. It has always been about the money. We are happy to make physicians work harder for less, and that has been happening for years. People don’t care because they have drunk the Kool-Aid from the insurance companies and the government that the medical profession is the problem with healthcare, and a misinformed public accepts the view that somehow physicians are the enemy.
“On July 08, 2015, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that updates payment policies, payment rates, and quality provisions for services furnished under the Medicare Physician Fee Schedule (PFS) on or after January 1, 2016. This year, CMS is proposing a number of new policies, including several that are a result of recently enacted legislation. The rule also finalizes changes to several of the quality reporting initiatives that are associated with PFS payments, including the Physician Quality Reporting System (PQRS), the Physician Value-Based Payment Modifier (Value Modifier), and the Medicare Electronic Health Record (EHR) Incentive Program, as well as changes to the Physician Compare website on Medicare.gov.”
The proposed rule includes provisions relating to the following;
- physician quality reporting system
- “Physician Compare”
- EHR incentive program
- Medicare shared savings
- advance care planning
- payment provisions on Part B drugs, misvalued codes, RVU reductions, “incident to” services, physician value-based payment modifier, etc.
Perhaps most significant in the area of healthcare business transactions are the physician self-referral (Stark law) updates:
- expansion of recruitment and retention provisions to NPPs
- updating physician-owned hospital requirements
- reducing burdens of technical noncompliance through more reasonable regulations in a number of areas (based on information learned from self-dsiclosures and the rersults of recent cases)
The complete proposed rule as published in the Federal Register on July 15 can be found here.
Comments will be accepted by CMS on the proposed rule until September 8, 2015.
Great podcast for healthcare attorneys and keeping current — The Week in Health Law.
A few weeks ago, the OIG published another one of its fraud alerts. This one was entitled, “Physician Compensation Arrangements May Result in Significant Liability.”
Everyone knows (don’t they?) that business arrangements in healthcare have to meet several legal requirements, including: (1) it cannot be based on the value or volume of referrals, (2) it must be at arms’ length, and (3) it must be commercially reasonable. When a healthcare provider enters into a transaction that violates any of these three requirements, he may have violated the anti-kickback statute or physician self-referral/Stark law or both, and any claim arising from the transaction that is submitted to the federal government for payment may be a false claim. Healthcare lawyers have long been warning their clients to be cautious about how they pay (and recruit) physician employees and contractors in order to avoid violations of the kickback, self-referral, and false claims laws. Violations carry stiff penalties and in some cases criminal sanctions.
There is nothing new in this recent Fraud Alert. Many similar fraud alerts and OIG advisory opinions and actual court cases have passed on the same message. And there is nothing surprising other than that the facts described in this Fraud Alert so obviously violate these healthcare laws that you have to ask, why is no one listening?
I have a three explanations:
- The false claims act was passed during the Civil War and was aimed at stopping corruption in how defense contractors were paid. The law made sense. There was a direct relationship between the defense contractor and the government dollars received. However, the false claims act makes no sense in healthcare — treating a patient is so separated from payment; the provider at the time of care may not know who is paying — government, commercial, the patient, or no one.
- The healthcare laws are so contrary to the economic rules that apply to other businesses and so counter-intuitive as to make them offensively ridiculous and begging to be ignored (which they are).
- As we move to a pay for performance, quality-based healthcare reimbursement system, these laws become even more irrelevant. Case in point — Accountable Care Organizations — a critical foundation for healthcare reform under the Accountable Care Act. ACOs could not operate unless waivers to these healthcare laws were implemented. Every healthcare provider is not in an ACO, but many are developing clinically integrated networks and other arrangements to oversee quality and utilization in order to compete more effectively with large healthcare systems and negotiate with payors in keeping with the goals of healthcare reform. They are forced to act as if the waivers applied to them also. In fact many consultants advise that the waivers DO apply to non-ACO networks.
It is time for a thoughtful review (and repeal) of these antiquated and economically debilitating laws in how they apply to healthcare providers. It is time to stop calling business sensible healthcare transactions fraudulent and punishing the participants.
These laws allow regulators to be lazy and stupid. Anyone can enforce laws based an strict liability or ones that have lines so faint that crossing them is unavoidable.
Seriously, who cares if someone pays a fee for referring a patient for care? Liability should be based on the quality and necessity of the care. Providing care not needed or charging for care not given — those actions should be punished. But that’s harder for regulators, so we continue to vilify healthcare providers and impose burdens on them that are far tougher than the benefits derived.