Are health care fraud investigations and criminal indictments brought only against the guilty?
The short answer is no. Given the right circumstances, the likelihood of finding oneself fighting against a criminal indictment based on billing mistakes is high.
The writings of Franz Kafka involve situations of surreal distortion accompanied by a sense of impending danger. A story along those lines well illustrates the problem.
Meet David. Despite a touch of Attention Deficit Disorder, he’s had a successful chiropractic practice for over thirty years. He’s refused to allow modern advancements to pass him by, so he’s tried to remain on the cutting edge of chiropractic care, getting advanced training in EMG application and ultrasound techniques. He purchased a hydro bed and, following the suggestion of the manufacturer, coded its use as whirlpool therapy for some time. He’s worked with a neurologist and, like some others at the hospital, coded some incidental billing under the doctor’s provider number. His practice is doing well.
Yet suddenly he has a problem. Bill, a former office manager and business associate, is disgruntled. A venture went south. David is blamed. Recrimination follows. Bill wants money. David refuses. Bill mails a letter to the FBI, accusing David of wrongdoing for performing pelvic ultrasounds and nerve conduction tests without formal certification, up-coding hydro bed therapy as whirlpool, and billing services using a medical doctor’s provider number. David reviews his EOB forms and mails back some money to cover the cost of many of these billings. If these were errors, others have made similar mistakes. Who would believe Bill? The state board doesn’t offer clear guidelines and he’s provided ten times as many free services as these questioned claims.
David is indicted for 552 criminal counts, ranging from mail fraud to money laundering. Seizure warrants are issued against his investments. Many of his patients disappear. Insurance companies refuse to pay his claims. The United States Attorney, influenced by investigators who know little about health care billing practices, assumes his guilt. After consultation with health care billing experts and analysis of eight thousand pages of documents, David’s 552 count indictment shrinks to 3 counts, offered to the government like poker chips slid across a table. After making a payment of $50,000 to free his investments, he wonders whether Franz Kafka was ever a gambler.
Larry Economos, a civil and criminal defense attorney whose practice focuses on federal health care fraud defense, is a managing partner with Mills & Economos, LLP. Mr. Economos can be contacted via his website address, www.leconomoslaw.com, or by telephone at 800-456-0460, 704-375-9913, or 252-752-6161.