Medical Defense Law

 MEDICAL DEFENSE LAWTeam doing medical defense law involving tom kensok daniel horowitz lawyers at the firm ing on March 19, 2018 in Lafayette, California. (Photo By Haley Nelson)

 

Medical Board defense law requires a specialized knowledge.  Administrative law rules are arcane and loaded against the medical practitioner.  Criminal charges often lurk just below the surface and the board, the Attorney General bringing the accusation, work with criminal investigators.  If you are hiring a medical defense lawyer, ask him/her the following questions.

 

1. If the board asks that you testify in your own defense at an Accusation hearing, can that testimony be used against you in a criminal prosecution ?   If you refuse to testify at the administrative disciplinary hearing – can that be used against you by the administrative law judge or the board ?

2. Does your board have jurisdiction over the charges filed in the Accusation ?

3. What standards does the board hired “expert” apply to his/her opinion ?  Are there factual presumptions ?

4. What is administrative hearsay and how can it be excluded ?

5. Can the board issue a subpoena for records without attaching a declaration that explains the factual basis for the subpoena ?

6. Can I force my accuser(s) to testify at the administrative hearing ?

 TOUGH LEGAL ISSUES

Excellent attorneys do not necessarily know the legal nuances in the area of medical practitioner defense.  Many of the issues are complex and often the waters are uncharted.  For example, if a chiropractor claims that he can cure cancer and a desperate parent accepts the claim and the child dies early is this murder ?  See: People v. Phillips (1966) 64 Cal.2d 574, 581 for the answer.

LINKS TO BOARDS

False Billing Practices / Medical Insurance Billing Fraud

False billing practices may consist of having a convicted felon sitting in a backroom manufacturing fake HCFA 1500’s.  But insurance billing fraud is often a criminalization of a financial dispute between insurance companies and doctors.  An audit will always find a significant percentage of billings that are grey area or billed in error.  A general medical practice will involve patients who present with multiple problems and ongoing issues.  How to bill each visit is an art more than a science.  Physical therapy prescriptions that include in house massage or modalities are subject to great scrutiny and massage billing code acceptance vary from insurance company to company.

Billing Fraud or The Best Medicine ?

New or untested medical theories are a hotbed for quacks and fraud but they are also a necessary component of excellence in medical practice.  There is a trend (for example), toward a “type 3 diabetes” theory for alzheimer;s and dementia development.  If an MD is convinced that this the cause and treats a large number of asymptomatic patients for “type 3 diabetes”, this doctor may be saving his/her patient from years of suffering.  But, the same doctor may be audited by insurance carriers and charged with various types of medical insurance billing fraud.  The Type 3 diabetes diagnosis and treatment may be spared from attack as the Mayo Clinic is involved in this research.   Still, government defined treatments and insurance dictated treatment regimens are being the safe way to practice.

Target Areas for Doctors, Nurses & Chiropractors

Photo of Dan Horowitz in Lafayette california with link to webpage discussion onn how to respond to a medical board accusationAccusations – Focus- Medical Insurance Billing Fraud

Physicians are targeted by financial investigations.  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)  Medical fraud and abuse are the way that governments shift blame for out of control health care costs from the insurance companies to the providers. But medical fraud is a lot broader than submitting a fraudulent medical bill.  Innovative treatments, creative systems of patient care can put you on the outside of standard practice.  If you try to be innovative or make a profit, you may be wrongly accused of health care provider fraud.

 

Accusations Against Nurses Are Targeted to  “Personal” Issues

As a nurse license defense attorney we see a different matrix of accusations against the nursing profession.  With nurses the focus of accusations are more personal.  Drug and alcohol abuse, theft of supplies (often related to substance abuse problems) and elder abuse issues (often involving financial transactions with the elderly)

 

Accusations Against Chiropractors – Targeted to Scope and Methods of Practice

The frequency of treatment, the use of modalities outside the purported scope of the Chiropractic Initiative Act as well as sexual abuse are the main issues that the chiropractic board is focused on.

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)

 

Compound Pharmacy Prosecutions –  Prosecution Hot Button

Creams, patient formulated RX’s, with the physician or clinic making a profit are in the cross hairs of prosecutors.   Companies that provide “billing” services and “dispensing” services to physicians who prescribe the creams (or formulas), are actually selling the product and kicking back a percentage to the physician.  Beware of these schemes, they will get you arrested.  <<Read Compounding Article Here>>

CURRENT ISSUES IN MEDICAL FRAUD PROSECUTIONS

The Insurance Companies Call the Shots

The state insurance boards and local county investigators 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.  The information is shared at anti-fraud seminars where insurance SIU teams lecture with select (and well funded) DA’s offices.  Other, (lesser funded), prosecution offices follow the templates.  Prosecutions can be challenged on the grounds of insurance company interference.

Billing Rules Change – CPT Codes are “Blurry”

Billing fraud is the catch all phrase for areas where the law is unclear but insurance companies with to make an impact.  Audits, criminal referrals and refusals to pay target medical providers whose CPT code interpretations are reasonable but differ from the insurance company interpretations.  In this way, simple civil billing disputes can become “criminalized”.

CPT codes are sometimes vague, often confusing and often subject to interpretation. Simple questions are complex. When are modifier codes used?  When does a visit become particularly complex?  Insurance companies MODIFY the CPT codes and impose their own internal audit standards on the codes.  In other words, it is not sufficient to follow the AMA CPT rules.  Each insurance carrier adds its own spin to the rules.

Prosecutions can be challenged as unconstitutionally vague.

See: AMA Article on CPT Codes

INSURANCE COMPANY EXPERTS BECOME PROSECUTION EXPERTS

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.

Insurance Experts should be challenged for extreme bias.

 

SIU MEDICAL FRAUD UNITS SHOULD BE EXPOSED

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.

Medical Fraud charges are manufactured behind closed doors.  Motions must be filed to unseal the hidden SIU practices so that the bias and influence of the financial driven SIU units are exposed.

Penal Code Section 550 Charging Abuse

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.)   Penal Code section 550 is often used to bootstrap misdemeanor conduct into a FELONY charge.  It is necessary to challenge this (mis)use of section 550.

Penal Code section 550 charges can be challenged on due process, statutory interpretation and other grounds.

 

CONSULTS WITH ATTORNEYS

Defending Medical Professionals, like DUI defense, has its own rules, code words and political aspects.    Many attorneys are consulted on medical fraud defense cases because they have a pre-existing relationship with the physician.  We value those relationships and often team with these attorneys to provide the best possible Team representation.

We  publish a guide to assist attorneys in understanding some of the key factors in medical fraud defense.  (Click the Medical Fraud Defense icon to the left)Link to article on medical fraud defense for attorneys, caption reads medical fraud defense

 

 

 

 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.

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