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Healthcare Fraud

Contra Costa County Healthcare Fraud Lawyer

Daniel Horowitz is one of the nation’s leading trial lawyers.  He has extensive experience litigating healthcare fraud cases in the state and federal courts.  The Horowitz medical lawyers handle fraud cases nationwide with a strong presence through affiliated attorneys in New York, California, Washington, Washington D.C. and Texas.   Our physician/lawyer, Dr Mark Ravis is a key member of the Horowitz medical defense team.

Our lawyers are often asked to explain fraud in terms of the healthcare profession.  This is an important question because healthcare fraud is different from typical financial fraud.  Financial crimes are generally schemes like the FTX cryptocurrency fraudulent scheme.  Healthcare crimes are called fraud but they often involve violations of rules that are necessarily evident.  The Stark Law, Stark Law ancillary exceptions, the AKS (anti kickback law), the Federal Exclusion Statute, even worker's compensation fraud are often creatures of statute and are not inherently evil acts.  Therefore the definition of fraud in healthcare often lacks the concept of planning or outright theft that is so common in financial frauds.

Daniel Horowitz is a certified specialist in criminal law.  This certification is held only by several hundred attorneys in the entire State of California.  It is a qualification similar to board certification for physicians except that it is issued by the State of California, Board of Legal Specialization.  For medical fraud cases the Horowitz physician legal team is expert in differentiating criminal fraud from financial or regulatory disputes.  This is often the difference between facing time in prison as compared to a simple monetary dispute.   

Healthcare fraud cases carry enormous monetary and criminal penalties.  It is important to obtain legal assistance at the earliest opportunity in order to mitigate your potential criminal and monetary exposure.

What is the Physician Self-Referral Law (42 U.S.C. § 1395nn) - “The Stark Law”

Physicians setting up related medical businesses, inter-related medical practices, concierge practices with in house physical therapy are just some of the medical practitioners and medical practices that need to be aware of the physician self-referral statute.   (Note: In California many of these same “Stark Law” violations can be charged as insurance fraud under Penal Code section 550 when the payor is not the United States government.)

The Physician Self-Referral Law is commonly referred to as the (Pete) “Stark law”.  It prohibits physicians from referring patients to receive "designated health services" payable by Medicare or Medicaid. When you see a term such as Medicare fraud attorney it often refers to allegations of Stark violations but not necessarily.  The Code of Federal Regulations has a myriad of rules that a practitioner, hospital or medical practice can violate.  Generally the violations result in a compensation dispute but at times there is Stark law spillover.  Stark law violations are limited to “designated health services” and the referral has to be from entities with which the physician or an immediate family member has a financial relationship.  And then there are many exceptions.  

Read Daniel's Blog Post on Why We Track Large Hospital Stark Cases

Physicians should be careful of business relationships with promoters who will seek to use your license to spearhead a business that the promoter claims is lawful and does not violate the Stark law.  In evaluating a business proposal (or “scheme”), remember that unless there is an exception, financial relationships include both ownership/investment interests as well compensation arrangements.   For example, a cancer clinic that owns the world’s greatest imaging equipment has to be very careful (and make full disclosure) before referring patient’s to their wholly, partially or through referral fees (owned), state of the art facility.

The scope of “designated services” is very broad:

  • Clinical laboratory services;
  • Physical therapy, occupational therapy, and outpatient speech language pathology services;
  • Radiology and certain other imaging services;
  • Radiation therapy services and supplies;
  • DME and supplies Osuch as when a urology group sells urinary catheters)
  • Parenteral and enteral nutrients, equipment, and supplies;
  • Prosthetics, orthotics, and prosthetic devices and supplies;
  • Home health services;
  • Outpatient prescription drugs; and
  • Inpatient and outpatient hospital services.

There are both criminal and financial penalties for a Stark violation.  A Stark violation will trigger sanctions under 42 USC 1320a-7, the Federal Exclusion Statute.   And .... even if you were fooled by a slick business partner, you the physician, are still personally on the hook.  The Stark law is a strict liability statute, which means proof of specific intent to violate the law is not required.  If you are stuck in a business relationship where your license is embroiled in the Stark violating business, we can (at times - no guarantees !) extricate you and save your license.

Daniel Horowitz is a physician lawyer.  He is not a hospital lawyer and never will be.  Your medical practice and your hard earned professional integrity deserve respect and protection.  Daniel Horowitz is dedicated to the individual doctor and small-medium sized medical groups.   Our main office is in Lafayette, California (Contra Costa County).  We represent doctors throughout the state of California and in federal courts nationwide.  

What is the AKS (Anti Kickback Statute)

The Anti-Kickback Statute (AKS) is less cluttered than the Stark statute meaning it is easier to understand.   The statute is a federal law that prohibits the exchange of anything of value in an effort to induce or reward the referral of federal healthcare program business. It is a classic don’t give something for something if the something you get or give is a federal healthcare payment.

The law is intended to prevent fraudulent and abusive practices in the healthcare industry, ensuring that medical decisions are based on the best interests of patients rather than financial considerations.  An example would be a medical group that does massive advertising but little actual medical care.  It then refers patients to other MD’s not based upon the quality of those doctors but in an auction environment where they doctor that pays the most gets the most referrals.

But that is the easy definition.  There are so many subtle ways of giving a kickback for business.  If a physical therapist refers patients for surgery what if the surgeon then refers her/his patients to the PT for post surgery rehab? Is this an AKS violation?  The AKS makes it illegal for individuals or entities to offer, pay, solicit, or receive anything of value (remuneration) in exchange for referrals or recommendations for services covered by federal healthcare programs, such as Medicare and Medicaid.  Is the above example a quid pro quo?  Or is it mutual respect and responsible medical referral?

Here at least the AKS is fair.  There is no AKS violation unless there is actual proof of a knowing and willful intent to violate the law. Remember though, ignorance of the law is no excuse.  If you violate what the AKS prohibits you are guilty even if you never intended to violate the law.  Physicians doing worker’s compensation evaluations are sometimes scrutinized for AKS violations because there is an implication (or claim made) that a favorable evaluation is traded for more client/patient referrals.

18 USC 1347 the Federal “Catch-All Fraud Statute

Billing fraud and more generally health care fraud, is a overly broad area.  There are thousands of pages of rules and regulations and many other relevant statutes. These include 18 USC 1347 (Plain Vanilla Health Care Fraud), 18 USC 1349 (Conspiracy related to Health Care Fraud), 18 USC 1035 (Health Care related false statements) and 18 USC 1956 (money laundering related to health care fraud).

Danger Areas

Upcoding, unbundling, self referral – the list of billing fraud landmines seems endless.  Often normal billing is seen as billing fraud when a disgruntled employee or competitor makes a complaint.  Even anonymous complaints to the medical board or chiropractic board can trigger a criminal investigation.  Worker’s Compensation is a current hot spot for investigations.  Fraud investigators are using computer programs that track usage of billing codes (charted against CPT code use in the general practice population for your area).

California “Hot Button”  – Physician’s Rx Network

Physicians Rx Network provides creams and medications for physician’s patients.  They provide the materials, bill and keep 20% of the gross revenue.  They also provide urine testing for drug use, prescription compliance.  For a variety of reasons, the use of this service is placing physicians under an investigative microscope.  Has the physician disclosed his/her profit in the prescription filling process ?  Is the prescription truly medically necessary ?   With urine tests there are inquiries along the same lines.  Is there a payment for the referral ?  Are referrals necessary ?  Is the referring MD making a large profit by reviewing the results ?   Beware the non-physician run profit centers that may give even the appearance of impropriety.

Issues for Chiropractors

Some billing issues are particular to particular licenses.  The American Chiropractic Association in 2015 published an article titled Coding Policy -Coding Misuse Prompts Fraud Investigations.  

An important sentence in the article reads, “In general, it is inappropriate to bill an established office/outpatient E/M CPT code (99211-99215) on the same visit as Chiropractic Manipulative Treatment (CPT code 98940)   Was that obvious ?  The answer explaining “why” is in the article.  But if you are a DC or bill for a DC, any hestitation in answering the question underscores how fraught with peril the billing world is.

Does Your Case Justify Hiring a Specialist ?

Daniel Horowitz is a criminal defense law specialist. That certification is granted by the State Bar of California Board of Legal Specialization.  There are many excellent criminal defense attorneys who have not obtained this certificate but consider this; to be a specialist, a criminal defense lawyer must “survive” peer review, judicial review, pass a comprehensive written exam, and have practical experience significantly above that of the average defense lawyer.  To maintain the certificate, the criminal defense attorney must complete advanced level continuing education courses that focus on the criminal defense specialty.  Daniel Horowitz has been a certified specialist for over 20 years.  As of 8/23/2017 there was only 1 criminal defense specialist in Walnut Creek, California, 2 in Lafayette and approximately 200 statewide.  This expertise and extensive medical fraud experience, makes the Horowitz office a first choice for those wrongfully accused.

WHY HIRE DANIEL HOROWITZ ?

 Does Your Case Justify Hiring a Specialist ?

Daniel Horowitz is a criminal defense law specialist. That certification is granted by the State Bar of California Board of Legal Specialization.  There are many excellent criminal defense attorneys who have not obtained this certificate but consider this; to be a specialist, a criminal defense lawyer must “survive” peer review, judicial review, pass a comprehensive written exam, and have practical experience significantly above that of the average defense lawyer.  To maintain the certificate, the criminal defense attorney must complete advanced level continuing education courses that focus on the criminal defense specialty.  Daniel Horowitz has been a certified specialist for over 20 years.  As of 8/23/2017 there was only 1 criminal defense specialist in Walnut Creek, California, 2 in Lafayette and approximately 200 statewide.  This expertise and extensive medical fraud experience, makes the Horowitz office a first choice for those wrongfully accused.

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