Medical Defense Law

FRAUD LAW – The BasicsPhoto of Dan Horowitz in Lafayette california dark suit,

The FBI states that “Health care fraud costs the country tens of billions of dollars a year.”  It calls health care fraud “a rising threat, with national health care expenditures estimated to exceed $3 trillion in 2014 and spending continuing to outpace inflation.”  (See FBI Article)

Of interest is the mixing of the cost of health care fraud with the general increase in health care costs, nationwide.  The FBI is simply a federal police agency and the gratuitous comment about the rise in health care costs is a clear warning that medical fraud investigations are highly politicized.  After all, maybe health care costs are rising because medical care is improving and people previously untreated are now receiving treatment.  Physicians practicing pain medicine, orthopedists with large Worker’s Compensation practice and chiropractors (especially chiropractors who advertise), are most at risk.

If you do an internet search on the subject, your best search words are not “chiropractic fraud” or “physician fraud”.  While certain categories of physicians and chiropractors are most targeted, the language of the governmental entities is far more general.  (Try “billing fraud” or “press release” & fraud)

The governmental entities are also publishing broadly under phrases such as Medicare fraud, Medi-Cal fraud, billing fraud, health insurance fraud, health care fraud or medical fraud.  However, in practice, the investigations tend to follow the direction of insurance company SIU units (Special Investigative Units).  Those units are more narrowly focused and recently have turned their attention to Worker’s Compensation fraud, chiropractic fraud and referral services that locate low income workers and refer them to personal injury or worker’s compensation attorneys.  Pain medicine, orthopedic practices and chiropractors are most at risk from the SIU investigations because much of what they treat is based upon a patient’s subjective report of pain.  While a chiropractor may have an x-ray or MRI that supports a diagnosis, the effect of a disk herniation varies greatly patient to patient.  Pain doctors must rely upon a patient’s subjective report of pain (to a large degree).  For these reasons, their treatment and diagnosis is vulnerable to attack by so  called experts who will deem their treatment excessive and unnecessary billing. (They call this billing fraud when it is really just a medical disagreement.)

Billing (e.g. billing fraud) is a major area of attack because CPT codes are sometimes vague, often confusing and often subject to interpretation.  This is especially true for chiropractors who use CPT codes that were developed by the competing medical profession. (CPT codes are billing codes that are developed by the American Medical Association but are used broadly in the medical profession for billing insurance companies.  While many physicians work cooperatively with DC’s, there has been a long history of competition between these two medical professions.)

The “scatter gun” approach to billing will generally not trigger the computer programs to flag you.  Peaks vs. your prior billings, vs. similar practices locally vs. similar practices nationally, we likely trigger some computer attention.

See: AMA Article on CPT Codes

The insurance companies have a cadre of trained billing experts who pretend to be objective but who survive economically by reviewing medical provider bills and reducing them. These same experts will testify in criminal trials against health care providers. Their testimony is always the same. They establish a standard for honest billing and then take honest errors or differences of opinion as to how something should be billed and they term that difference as a dishonest attempt to obtain more money than the doctor was entitled to.

Criminal cases against health care professionals usually start with an SIU investigation. The investigators then contact the Department of Insurance (DOI) and perhaps the medical board or chiropractic board. The case is then referred to a local district attorney. It is the insurance company that provides the factual and legal basis for the initial focus on the health care provider.

Here are some examples of behavior that could lead to an SIU investigation and  health care fraud charges: (Click Here for SIU Manual)

Billing for procedures that are new or experimental. For DC’s, this would include cold lasers and audible sound waves as there is a growing attempt to term those procedures as outside the scope of practice.

Billing for medical treatment where the insurance company claims that treatment was not really provided. If a medical practice has 1000 patients it is not difficult to find 10 or 20 who don’t recall all the details of their treatment.

Billing for a complex procedure when a more simple procedure was actually performed. Dermatologists face this threat as do chiropractors. This is termed upcoding. Upcoding can also take place when there is a dispute as to how many minutes the doctor spent with the patient.

Billing for two separate accidents or injuries on the same day without making it absolutely clear (to the insurance company) that this is being done. The rules for billing under these circumstances are unclear.

In California, Penal Code section 550 is the catch all statute that criminalizes medical fraud.  There are other statutes sometimes invoked. Law enforcement often alleges that chiropractors act outside of the Chiropractic Initiative Act (the voter approved initiative that defined the permissible scope of practice for chiropractors).  When these allegations are made, the Penal Code section 550 charges are also supplemented with claims of practicing medicine without a license.  (This is Business & Professions Code section 2052.)

Even if criminal charges are not filed, the physician or chiropractor will likely face license suspension through the filing of an “Accusation” by the medical board or chiropractic board. Those board Accusations are judged by professional Administrative Law Judges.  The boards have lists of expert witnesses who generally presume guilt and render opinions highly adverse to the medical provider. There are no juries and few genuine due process or procedural right guarantees. At times, the Administrative Law judge can be fair and provide a speedy (and positive) resolution for the medical professional.  However, if you get the wrong judge, his or her powers are so unfettered that it is virtually impossible to win.

In California, adverse administrative hearings can be challenged in the courts and special statutes provide a speedier remedy for medical doctors than for other medical professionals.

The vast majority of attorneys who handle medical matters that are referred to the medical boards, end up resolving the cases by negotiation rather than by full battle at a hearing.

 

Daniel Horowitz in court

There’s going to be people out there who say, ‘He got off because he had a great attorney,’ ” Origel said. “And I did. It took this attorney to bring out the truth.”   (Dr. Wil Origel to the Stockton Record following the dismissal of all charges against him.)

bear with state bar of california certification as criminal defense specialist and link to news article on horowitz if you click the picture

 

Websites that contain claims of criminal law specialization without this certification are not endorsed by the State Bar of California.  Daniel Horowitz has been a Board of  Legal Specialization approved specialist for over 20 years.

 

WHAT IS A CRIMINAL DEFENSE SPECIALIST ?

If you have a Heart Attack – Would You See a Foot Doctor ?

If you have a heart attack would you go to a foot doctor ?  Of course not.  We understand medical specialties and law specialties are similar.  “Yes”, many wonderful criminal defense attorneys are not specialists.  But if your case is really serious, the fact that only 200 (approx) attorneys in the entire state are certified as specialists should at the very least, lead you to ask “WHY”?  Why does it matter that someone is a specialist in criminal law.

The California State Bar Has Tough Rules

Daniel Horowitz became a specialist over 20 years ago.  He had to submit a lengthy application that showed extensive trial and motion experience.  He was peer reviewed both other attorneys, judges and by a penal of experts at the State Bar itself.  He took a written examination which was graded by criminal defense experts.  To keep his certification, he must take continuing education courses that are deemed technical enough to meet specialist continuing education standards.

Other Important Experience

Daniel Horowitz has been a law professor teaching trial law and an Associate Professor at Cal State College teaching criminal law for paralegals.  He has been a lecturer at many legal conferences including the prestigious CACJ/CPDA Death Penalty Conference in Monterey, California.   Daniel is one of a small group of attorneys on both the Alameda County and Contra Costa County panels for attorneys qualified to be assigned death penalty cases =in Alameda County and Contra Costa County.   Daniel is admitted to practice before the United States Supreme Court and has submitted an amicus brief in that court at the request of the State Public Defender.

Criminal Jury Trials

Criminal defense attorneys are the “trial animals” of the legal profession.  DUI cases, petty thefts and other misdemeanors are the starting point for criminal law attorneys.  Beyond that are the complex and high stakes felonies and these are the areas that often separate general practitioners from specialists. (Note: DUI and other types of crimes have their own peculiar rules and there are people who are very skilled in these discreet areas.)

Medical Cases and Experienced Counsel

Defending Medical Professionals, like DUI defense, has its own rules, code words and political aspects.   Horowitz has a web page dedicated to assisting experienced criminal lawyers in defending their first medical fraud case. Link to article on medical fraud defense for attorneys, caption reads medical fraud defense

 

 

Most professionals have a sense that “something is wrong” before charges are brought.  Bill paying by insurance carriers may slow down.  Depositions in ordinary injury or accident cases focuses on your practice rather than the condition of the patient.  Strange patients show up without being having been referred by any local practitioner.  When you sense a problem, deal with it by calling an experienced defense attorney.  Waiting is rarely the right choice.

SIU Units Are Experienced & Somewhat Cynical

Physician fraud defense (and chiropractor fraud defense) often focuses on fraud issues.  Insurance companies have their own crime specialists who use prior law enforcement experience to take normal billing disputes and escalate them to involve criminal investigations.  This is a damaging and cynical approach to financial disagreements but increasingly, honest medical professionals are being investigated criminally due to this approach by the insurance industry.

 Worker’s Compensation – Danger Area

California has a state commission which funds state prosecutor offices for the purpose of pursuing insurance fraud.  (See Website for the California Fraud Assessment Commission)  This is an industry led commission and it is instrumental in determining what type of cases are the focus of criminal investigation.

SCIF is a permanent member of the commission so you know that Workers Compensation fraud is a major focus.  More generally, the main areas where medical providers are subject to criminal charges are the areas of medical billing fraud, medical fraud involving treatment choices, medicare billing fraud, medicare fraud in terms of over treatment, insurance billing fraud including disputes over how to classify treatments (especially for dermatologists and chiropractors).

Lafayette Lawyers are a group of independent attorneys with practices focusing on criminal defense, personal injury and trial law.  The main office is located in Contra Costa County in the city of Lafayette, California.  The attorneys handle cases nationwide with recent cases in Los Angeles, Washington DC, San Mateo, Walnut Creek, San Jose, San Diego, New York and internationally.  Daniel Horowitz is certified as a criminal defense specialist by the State of California.  This is an earned rating and approximately 200 lawyers have this privilege.