Healthcare Fraud – A Hot Button Topic
Our contributor, Lawrence Hartman, wrote about healthcare fraud because it’s such a hot-button topic.
Read today’s headlines and you’ll notice that they’re full of alarming stories of doctors and other medical professionals charged with healthcare fraud. On some level, it only makes sense. Healthcare now represents one-sixth of the U.S. economy, at over $3.5 trillion dollars a year. The problem is, that the government uses a hub and spoke approach which, thanks to the amorphous crime of conspiracy, catches both the witting and unwitting, guilty and innocent.
Federal agencies make extensive use of analytics according to the Deloitte Center for Health Solutions, searching out questionable relationships and improper influence. The Centers for Medicare and Medicaid Services (CMS), in particular, scrutinizes relationships between providers, payers and life science companies on a regular basis. The analytics themselves expose certain anomalies and suspicious patterns as CMS seeks to verify identities or mine data from social networks. Once identified, the investigators seek to make a case, but with an inherent bias toward finding guilt because, after all, they have to justify their initial conclusions and time invested to their superiors. So, you can see where this generally leads.
Federal regulators are also well armed with complicated laws to help them pursue these types of cases. The False Claims Act, for example, enables prosecutors to pursue fraud and abuse claims, while the Anti-Kickback Statute is continuously defined more narrowly and can now include such menial items as dinners and tickets to sporting events, let alone elaborate trips or vacations.
Then there’s the Physicians Payment Sunshine Act which requires detailed reporting of “payments or transfers of value” by drug medical device companies and supply manufacturers, among many other laws. To make matters even more challenging, regulators often only need to allege that you either knew or should of known in order to find criminal culpability, under a legal doctrine commonly referred to as “willful blindness.” Finally, the Federal agencies in charge of enforcing health care fraud and abuse also have the largest office of Inspector General in the entire government, ensuring that cases are churned out in assembly-line fashion.
My bunkmate Christian studied physiology back in his native country of Chile. He was offered a job in the States as a physical therapist and eventually worked his way up to Rehabilitation Director, providing services the government acknowledged he performed. The government also acknowledged that he made no money from the conspiracy other than a regular salary.
Little did he know, though, that the people who owned the clinic, and several more just like it, had hired an outside group that was sending them a large number of clients in violation of patient brokering law. Now, Christian had no reason to know this law (it certainly didn’t exist in Chile) or that his boss was violating it.
However, since he’d been approving invoices (which he had no reason to believe weren’t legitimate), he was painted with the same broad brush used against those who made millions. Even more outrageous, he didn’t even know many of his co-defendants (doctors and therapists from other clinics under the same umbrella of ownership) prior to trial.
There, they were, the whole lot of them, with barely any idea what they were up against in the federal criminal justice system. The prosecutors asked for 25 years against Christian, the same length as some of the ringleaders who’d cooperated. He once too had an opportunity to cooperate himself but unfortunately believed everything he’d been told about the US justice system, so he just had to be exonerated in the end, right? Well, he ended with 12 years, wishing he’d known more about the process and handled things differently.
A physician’s assistant named Roger was a in a slightly different situation. He was working for a clinic, regularly seeing patients, billing correctly, but came to see and hear things going on around him that stoked his suspicions. So, he quit to go elsewhere and the resignation letter was part of his employment record.
The government brought charges a full six years later that included Roger as a defendant even though the statute of limitations had lapsed. Now, Roger knew that he personally hadn’t done anything wrong, so he decided to go to trial. The government, however, argued that Roger should have gone to the authorities when he suspected something unseemly and that merely quitting didn’t eliminate him from the conspiracy.
Roger tried to get people he knew in the medical field to testify in his defense, but they were too afraid of pissing off the government to get involved. Moreover, Roger had a terrible attorney who totally fumbled the statute of limitations issue. Roger ended up with a sentence of 15 years, several years longer than that given to his supervisor who made almost ten times what Roger did. The problem, however, didn’t end there. Roger’s wife, an office manager at another clinic, was fired shortly after Roger’s conviction because they were fearful she might be snooping around for information to shorten her husband’s sentence. She was never able to get another job in the medical field again.
So, if that’s how the government treats relatively low-level defendants with little or no culpability, imagine how hard they go after people they believe to be the ringleaders. Trust me, I know, I was once in that position. It takes considerable expertise, know-how and creativity in order to achieve a good result. Frankly, had I known back then what I know now, I strongly believe I would have shaved years off my sentence.
Healthcare fraud is the tempest in the teapot and will continue to be the center of government attention as it steadily grows as a percentage of our economy. As a result, prosecutors feel intense pressure to make cases and get convictions. Actual guilt or innocence is sort of besides the point, it’s all about what they can prove. The stakes are high. It’s therefore best to go in armed with the best and most comprehensive strategy in order to obtain the optimum outcome.
About the author: Lawrence Hartman, is a Columbia Law School grad who has done deals worth hundreds of millions of dollars over his lengthy career as a Wall Street attorney, General Counsel of a publicly traded REIT, internet entrepreneur and international financier. He also, found himself on the other side of the process as a defendant and then inmate, learning all too well that things don’t work how they teach in law school. He served 7-1/2 years utilizing his legal background to gain unique insights and perspectives vital for mitigating criminal legal exposure.