As a former Assistant District Attorney I supervised and charged hundreds of criminal cases, including health care fraud cases. Criminal fraud cases not involving elder abuse or embezzlement, tend to be much more policy driven. By policy driven I refer to a concerted effort by the insurance industry and the California Department of Insurance to control their health care costs.
Daniel Horowitz defends chiropractors. In 2006 he won the “MUA” (Manipulations Under Anesthesia) case in Stockton, California. Had he lost that case over 300 chiropractors would have been arrested and charged with practicing medicine without a license. Defense of Chiropractors involves knowing the players. Sometimes it is like a script from a movie. Jennifer Martin, D.C. or James Fisher J.D. are often players for the prosecution.
From the perspective of cost control, there is a normal tension between the clinical judgment of the doctor and the statistical calculations of the insurance companies. Insurance companies establish treatment norms based upon computer models.
It is shockingly simple for an honest, highly skilled chiropractor to run afoul of a computer algorithm and be targeted for investigation. If you have a working class patient population, current injuries may exacerbate prior injuries.
This creates a complex combination of symptoms that are not easily attributable to current vs. past causation. From a medical perspective this allocation of fault is usually unrelated to the treatment plan.
Medically you objectively assess the symptoms and their cause and develop the best possible plan to treat. However, if your treatment plan and frequency is compared to a patient population that has a better initial health profile, you may be flagged by the computer as “over treating.” Your allocation of fault becomes an allocation of financial liability and impacts the fight between the insurance company and your patient’s lawyer. You, as the medical professional, become a ping pong ball.
Insurance companies, the Department of Insurance, and the Chiropractic Board often considers over treatment a fraud issue. Upon referral, your patient’s bills and clinical documentation are reviewed without ever examining the patient. An assigned expert will determine whether your diagnosis, treatment plan, and actual treatment conform to chiropractic standards. See: ACA Article by Dr. Daniel Redwood.
As a prosecutor, I often received requests from the Department of Insurance to review the case for the filing of criminal charges. The SIU (Special Investigations Unit) of the insurance companies often hired retired police officers to investigate and put together reports that accompany a request for prosecution. The insurance paradigm is that in general, a few adjustments and a moderate level initial examination are all that is justified in terms of chiropractic treatment. The push is to make DC’s glorified physical therapists and to render any higher level of professional care, unjustified (meaning they won’t pay) and potentially fraudulent.
While many chiropractors refer a patient for imaging or to an orthopedist when treatment extends more than a few months, this prudent is not a guarantee of safety. Many of the physicians who accept DC referrals are “tagged” by insurance companies and subject to SIU and fraud unit scrutiny.
The Department of Insurance allocates millions of dollars to District Attorney’s Offices around the state to combat various types of insurance fraud. The allocations are often based on productivity, so It creates a self fulfilling prophecy. They need to bring prosecutions in order to get the next round of money. It is true the vast majority of referrals go to the licensing board, which creates its own set of difficulties for a practitioner. The consequences of the criminal cases go well beyond licensing board issues.
If you learn that you are under investigation, it is best to act quickly to prevent a Board Accusation or criminal charges. Remember that by the time you learn that you are under suspicion, there has already been significant investigation of the claims against you. Very rarely do these go away with a simple letter of explanation. In all cases, even those that are completely unfounded, you should seek immediate advice from an experienced medical case attorney.
Please feel free to contact me if you have questions or concerns.