As the federal government roared back to life this week, the U.S. Attorney's Office in Tampa announced a slew of sentencings and settlements. There was the standard fare expected from federal prosecutors — important cases involving the conviction of child predators, drug dealers, and felons carrying guns. Also of note, however, were a series of high-impact health care fraud cases. Health care practitioners — and their patients — would be wise to learn from the mistakes of their peers and adjust their course accordingly.
The health care fraud cases announced this week span the gamut. There were cases involving allegedly deficient autism treatments being billed in Jacksonville. In Orlando, a skilled nursing facility agreed to a settlement of more than $1 million to resolve allegations that it improperly paid kickbacks to doctors. In a national case, with a Tampa nexus, a pathology laboratory likewise agreed to pay more than $63 million to resolve allegations of kickbacks.
Perhaps most notable this week is a case involving a pain-management doctor in Clearwater. The government announced that this doctor will be spending six months in federal prison for improperly dispensing opioids to patients. The physician in this case was not a run-of-the-mill fraudster handing out opioids indiscriminately for cash nor was she running a "pill mill" operation where long lines of patients waited for opioids.
Instead, the government alleged a much subtler form of fraud and abuse. According to the prosecutors, this doctor defrauded Medicare by not seeing patients each time that she prescribed opioids. Instead, while the doctor saw the patient on an initial visit and made a determination about whether the patients actually needed opioids, the doctor did not see the patients each and every time she renewed their medications. Instead, according to the government, family members of patients visited the doctor's office for subsequent visits, where the doctor issued prescriptions for controlled substances to the family members. In all, according to the government, the doctor billed nearly $50,000 for bogus office visits. This, in sum, was the crime that is sending the doctor to jail.
This case does not involve the headline-grabbing details that make crimes readily apparent to the public. For example, the government did not establish that the patient did not have a need for opioids. Nor did the government establish that the doctor had failed to spend considerable time in gathering information from the patients or their family members. Nevertheless, in the government's quest to crackdown on health care fraud, it focused on strict adherence to all technical requirements, including proper billing methodologies. This is hardly unusual. We are both former prosecutors from this office and have spent considerable energies both prosecuting, and now defending, allegations of health care fraud. And we recognize that health care prosecutions do not always have salacious details. Instead, many times, prosecutions involve failure to comply with arcane or nuanced regulations.
These settlements and criminal prosecutions should be a warning siren for health care practitioners. A few practical pointers for clinicians include:
• DOCUMENTATION MATTERS. When prosecutors review clinicians' practices, they often start at the actual patient files. As clinicians know well, documentation matters — not just in the exam room, but also the courtroom. Make sure your patient files fully and accurately reflect the work you actually do.
• SCRUTINIZE YOUR FINANCIAL RELATIONSHIPS. As many practitioners have learned the hard way, well-intentioned and otherwise legitimate business deals that would be lawful in any other realm might be inappropriate in health care. Carefully review your existing financial relationships and make sure that these arrangements will pass regulatory requirements.
• BE EXTRA MINDFUL OF RULES REGARDING OPIOIDS AND CONTROLLED SUBSTANCES. The government has placed an intense focus on opioids and those who prescribe these drugs. If you're prescribing controlled substances, understand the attendant scrutiny.
We end with practical suggestions for patients. As fellow consumers wanting honest health care, we understand that it can sometimes be difficult to delineate between trustworthy clinicians and those that may be less trustworthy. Nonetheless, we know from personal experience that the vast majority of health care practitioners are honest and well-intentioned. Regardless, our advice is to carefully scrutinize your own documentation after each health care visit — your explanation of benefits, for example. When you see a discrepancy, say something. And, carefully review your physicians' history online to ensure that you are visiting only reputable physicians.
Health care fraud enforcement is here to stay. With the government re-opened, we expect to see more of these press releases. Clinicians would be well-served by heeding the warning signs and carefully following the letter of the law. As the old adage goes, an ounce of prevention is worth a pound of cure.
A. Lee Bentley III is the former presidentially appointed U.S. attorney for the Middle District of Florida, historically one of the most active health care enforcement judicial districts in the country. Jason Mehta is a former assistant U.S. attorney in that office. Both are now partners at Bradley LLP, advising clients on proactive compliance as well as responding to government inquiries.