Tag Archives: fraud

“Doctor of Death” Trial Could Ignite Stricter Oversight in the Healthcare Industry

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On paper, one Detroit-area oncologist appeared to be a wildly successful professional with impeccable medical credentials. According to his medical practice’s website, he went to medical school at Cornell Medical College, did an internal medicine residency at Maimonides Medical Center in Brooklyn, New York, and then completed a medical oncology fellowship at Memorial Sloan-Kettering Cancer Center, a very well-respected facility. The oncologist ran a professional practice of seven locations with a total of 60 employees.

However, on September 24, 2014, his reputation and accolades faded when he pleaded guilty to intentionally and wrongfully diagnosing healthy patients with cancer. He also admitted to giving these patients chemotherapy solely for the purpose of making a profit.

For healthcare professionals, this act is an obvious violation of the oath they took to serve their patients and to do no harm. But, if this oncologist is found guilty, you can be assured that oncologists, physicians, dentists, and all other healthcare professionals will be under a microscope to help ensure that something this egregious and dishonest does not happen again.

Allegations Against the Oncologist.

The details of the allegations, obtained from various employee whistleblowers, range from the mundane to the horrific. In the Federal Bureau of Investigation’s (FBI) complaint against the oncologist, there are dozens of examples of his wrongdoing described. The activities of which the doctor is accused include:

– Administration of unnecessary chemotherapy to patients in remission;
– Deliberate misdiagnosis of patients as having cancer to justify unnecessary cancer treatment;
– Administration of chemotherapy to end-of-life patients who would not benefit from the treatment;
– Deliberate misdiagnosis of patients without cancer to justify expensive testing;
– Fabrication of other diagnoses such as anemia and fatigue to justify unnecessary hematology treatments; and
– Distribution of controlled substances to patients without medical necessity.

There is also an issue of Medicare fraud. For the past six years, the doctor is accused of seeing a large number of patients per day. He would then bill every patient at the highest possible billing code, even though he allegedly only spent a few minutes with each patient. The amount of money related to the doctor’s Medicare fraud scheme is a staggering $35 million.

Click here to read the FBI’s complaint against the oncologist.

Charges.

The oncologist is facing a an abundance of legal issues. In all, the oncologist pleaded guilty in U.S. District Court to 13 counts of healthcare fraud, one count of conspiracy to pay or receive kickbacks and two counts of money laundering. He will be sentenced in February 2015 and faces up to 175 years in prison.

Other Healthcare Providers Could Pay for Oncologist’s Greed.

If the oncologist is found guilty, the aftereffects will surely be felt throughout the industry. For example, healthcare providers will need to more closely watch their Medicare billing. Any reimbursement submitted to Medicare will be under tight scrutiny. Keep in mind that Medicare pays close attention to the percentage of patients billed at each level. If a physician bills for every patient at the highest level, it’s going to send up a huge red flag. If you or your practice is being audited, click here for some tips on responding to a Medicare audit.

On top of the extensive healthcare fraud charges, the oncologist allegedly misled, endangered, and injured his patients. He betrayed the trust and privilege given to him as a physician by society, all in the name of greed. According to an article in The Washington Post, more than one patient died under the care of the oncologist. These families are now left to figure out whether their loved ones actually had cancer and died of chemotherapy complications, or whether they died of an actual cancerous ailment.

It’s crucial to remember that cutting corners to make a profit as a healthcare professional leads to great ramifications. Once a healthcare professional’s license and reputation are questioned, it is not an industry one can easily get back into.

Comments?

In your opinion, what is the worst offense this oncologist allegedly committed? Explain. Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in accusations of disruptive behavior, Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Sullivan, Gail. “‘Death Doctor’ Who Profited from Unnecessary Chemotherapy for Fake Cancers Could Resume Practice in 5 Years.” The Washington Post. (October 1, 2014). From: http://www.washingtonpost.com/news/morning-mix/wp/2014/10/01/death-doctor-who-profited-from-unnecessary-chemotherapy-for-fake-cancers-could-resume-practice-in-three-years/

“Prominent Michigan Cancer Doctor Pleads Guilty: ‘I Knew That It Was Medically Unnecessary’.” The Inquisitr. (September 24, 2014). From: http://www.inquisitr.com/1485160/prominent-michigan-cancer-doctor-pleads-guilty-i-knew-that-it-was-medically-unnecessary/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

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The Importance of Complying with the Stark Law and Other Anti-Fraud Laws

By Lance O. Leider, J.D.

The federal government has several tools in its toolbox to combat Medicare fraud.  Among those are the Stark Act, Anti-Kickback laws, and Civil Monetary Penalty Laws.  Each of these typically focuses on a particular type of behavior that is prone to abuse by healthcare providers.

The following focuses on the Stark law and what is prohibited by it.  Primarily, the Stark laws exist to combat the problems that can arise from physician self-referrals.  Self-referrals are cases in which a physician orders a test or service and refers the patient to a provider in which the referring physician has a financial interest.  This second provider will then bill Medicare for the service, essentially allowing the referring physician to cash in twice.

The concern is that if physicians are permitted to benefit from referring to an entity that they have a financial interest in, they will be prone to order tests and services that are not medically necessary. Our President and Managing Partner George F. Indest recently wrote an article on the legal ramifications of unnecessary tests, which was published in Medical Economics. Click here to read that article.

Know the History Behind the Stark Law.

There are essentially two Stark laws.  The first one is often referred to as “Stark I” and dealt primarily with physician referrals for clinical laboratory testing.  This law was in effect from January 1, 1992, to December 31, 1994.

The second Stark law, known as “Stark II,” took effect on January 1, 1995.  This law greatly expanded the types of prohibited referrals.  Instead of focusing on clinical laboratory testing, Stark II expanded the prohibition to “designated health services.”

A List of the Designated Health Services (DHS).

According to the Stark laws, designated health services (DHS) refers to the following services:

(i) clinical laboratory services;

(ii) physical, occupational, and speech-language pathology services;

(iii) radiology and certain other imaging services;

(iv) radiation therapy services and supplies;

(v) durable medical equipment and supplies;

(vi) parenteral and enteral nutrition and supplies;

(vii) prosthetics, orthotics, and prosthetic devices and supplies;

(viii) home health services;

(ix) outpatient prescription drugs; and

(x) inpatient and outpatient hospital services.

To see the complete statutory definition, click here.

It should also be noted that the regulation states that it only applies to DHS that are payable in whole or in part by Medicare.  While there are no Stark prohibitions on self-referral for non-Medicare reimbursed services, many states have their own laws that prohibit these referrals.

Stark Compliance.

Stark II compliance is a two-way street. Not only is the physician prohibited from referring to an entity in which he has a non-exempt financial interest, the provider receiving the referral is prohibited from accepting it.

Medicare conditions payment of a claim upon the certification by the claimant that it is in compliance with the Stark law.  What this means is that there is an obligation on the recipient of a referral to make sure that it is proper.

In the complicated world of healthcare business entities, it is incumbent upon the management of a supplier of DHS to know who all of its owners, investors, and stakeholders are so that it can remain in compliance and avoid any charges of impropriety.

Exceptions to the Rules.

Like many other regulatory frameworks, the Stark law have exceptions.  The law provides a number of exceptions to the rules which allow otherwise impermissible referral arrangements to pass muster.

Because the exceptions are numerous and often subject to change, it is highly recommended that any new  business arrangement, or substantial change to an existing one, is reviewed by a health law attorney experienced in the area of Stark law.

Contact Health Law Attorneys Experienced in Handling Stark Compliance.

If you are involved in referring or providing DHS it is crucial that your arrangements are reviewed for compliance with Stark and other anti-fraud laws.

Violations of these laws can carry severe financial and criminal penalties.  One of the best ways to avoid these sanctions is to have your current or potential arrangement reviewed by an attorney who is experienced in these matters.

The Health Law Firm routinely advises healthcare providers on Stark compliance issues for practitioners and providers of all types of DHS.  We can advise you on the legality of a particular arrangement and can assist with remedying any perceived compliance issues.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.Copyright © 1996-2012 The Health Law Firm. All rights reserved.

411-PAIN Settles with Florida Attorney General

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida Attorney General Pam Bondi announced that her office has reached a settlement with 411-PAIN. The settlement requires 411-PAIN to pay $550,000 and change its advertising practices for allegedly making misrepresentations to consumers. 411-PAIN is a Florida-based attorney and chiropractic referral service.

411-PAIN Allegedly Misrepresented Consumer Entitlements.

The Attorney General pursued action against 411-PAIN for the company’s alleged violation of Florida’s Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes. To view Florida’s Deceptive and Unfair Trade Practices Act, click here.

Allegedly, the company misrepresented that consumers could be entitled to $100,000 or more for injuries and lost wages as a result of accidents. The company also allegedly misrepresented that consumers could be entitled to more than $10,000 in personal injury protection compensation or benefits for injuries and lost wages. The alleged misrepresentations were made through the company’s advertising.

Additionally, 411-PAIN was accused of falsely stating that police officers require consumers to call 411-PAIN after calling emergency services following an auto accident. This was allegedly conveyed through the company’s advertisements which used actors dressed as police officers. The advertisements allegedly did not feature a disclosure that the individuals in the commercials were actors and not actual law enforcement officers.

Attorney Services Allegedly Misrepresented by 411-PAIN.

411-Pain also allegedly misrepresented attorney services to consumers. The company is accused of stating that consumers would be referred to a “qualified” attorney or “specialized” attorney who specializes in the type of injury or accident they sustained, when no such attorney specialization exists in Florida.

Settlement Restricts the Company’s Advertising.

The settlement reached by the state in Broward Circuit Court prohibits 411-PAIN from
 • Promising any monetary compensation in its ads; 
 • Saying it’s referring victims to a “specialized attorney;” 
 • Using images of law enforcement officers to suggest that officials are directing consumers to use 411-Pain after calling 911, unless the officer is labeled as a “paid actor.”

To view the full settlement, click here.

Sources:

Cohen, Bryan. “Florida AG Settles with 411-PAIN.” Legal Newsline. (June 5, 2012). From:
http://www.legalnewsline.com/news/contentview.asp?c=236354

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Clinical Trial: When Research Goes Wrong

Three patients died in an unapproved medical trial conducted between 2003 and 2004. Now, the executives of Snythes Inc., a medical-device company, are awaiting sentencing this week after pleading guilty to a misdemeanor as “responsible corporate officers,” according to Business Week.

The Synthes officials allegedly bypassed FDA protocol to have surgeons test bone cement in people with spine fractures. The product was not approved for that use, and three people died in the operating room in 2003 and 2004. The patients who died suffered a severe drop in blood pressure following the injections. The surgeons involved could not rule out the bone cement as a factor in the deaths, but it also wasn’t definitively responsible.

Synthes pleaded guilty to corporate health care fraud charges and agreed to pay $23 million in fines.

Prosecutors in the case want one-year prison terms for”human experimentation.” According to prosecutors, the executives not only tested the bone cement on humans, but failed to report the deaths and lied to FDA investigators. Each defendant has lost his job and been fined $100,000.

Although this is an extreme example of a recent case, clinical research fraud allegations are common. Medical and clinical researchers, whether in an academic community or in a practice setting, may be accused of research misconduct, altering data, falsifying results, misrepresenting data, or other forms of research misconduct. It is imperative that the researcher obtain experienced legal counsel to represent him or her in such matters.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of the researcher, cause him or her to lose grants, bonuses and promotions and may even lead to termination of employment. There are many additional more serious and far-reaching consequences that may also result.

In addition to possible immediate consequences already mentioned above, the following are other consequences that may result from such complaints being made against a researcher:

  • Suspensions from employment.
  • Termination of employment.
  • Removal from the department or school.
  • Placement into an administrative position or transfer to another campus or another job site.
  • Removal from positions such as Department Chair, Vice Chair, or Lead Investigator positions.
  • The requirement to retract a published article or chapter in a book (or certain potions of it).
    Please note: if this occurs, there are a number of websites and organizations which monitor such matters which will pick up this information and will republish it with the implication that the researcher was required to do this because of falsification of data or lack of integrity. This alone will permanently tarnish the reputation of the researcher.
  • A requirement that the institution refund the grant money for the grant.
  • Loss of tenure of the researcher.
  • Loss of the authority of the researcher to participate in any other government contracting activities (often referred to as “debarment” or exclusion”).
    This will also cause the researcher’s name and identifying information to be placed on websites and list maintained by the General Services Administration (GSA) and other federal agencies. This also prohibits a person who is “debarred” form being an owner, operator, employee or contractor of anyone else (or any other business entity) that is a government contractor. This also causes the researcher to be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), which means that the researcher will also be excluded form the Medicare Program and any state Medicaid programs.
  • Reporting to the National Practitioner Data Bank (NPDB) for any individual who is a licensed health professional such as a medical doctor or registered nurse.
  • Loss of any future grants by the individual.
  • Publication on the research fraud website maintained by the National Institutes of Health (NIH) Office of Research Integrity (ORI).
  • Administrative discipline by the institution overseeing the investigation or research.
  • Civil or administrative complaints being bought for the recovery of salaries, bonuses, expenses, fines or costs of investigation.
  • Criminal prosecution for fraud, theft or other applicable crimes.

In many cases, the researcher accused of such misconduct may actually be the victim of one or more unscrupulous individuals who make the complaint for his or her own ulterior motives. These may include disgruntled former employees or researchers who have lost their jobs or who have been denied renewal of contracts. They may include those who have racial, sexual, religious or other prejudices. They may include those who seek monetary rewards under laws and statutes that promote such reporting (including “whistle blower” and qui tam statutes). They may include persons who perceive that they have been wronged or slighted by the researcher involved. They may include those who make such complaints “preemptively” because they fear that their jobs, contracts or tenure will be jeopardized in the future. In many cases such complaints will be based on the honest motives of the person making the complaint who may have just misunderstood or mis-perceived facts and circumstances. Regardless, the best approach will usually be to take the high road, avoid personal attacks (in most cases) against the complainer, and just defend against the allegations being made with accurate facts, documents and information.

Obtaining an experienced attorney at the earliest stages of an investigation can help the researcher to avoid many pitfalls and mistakes that can harm or even give up defense opportunities the researcher may have. At the very least, legal guidance can assist in presenting the researcher’s side of the case in an effective and organized manner that does not compromise a legal defense.

Going out and retaining an aggressive trial attorney who is unfamiliar with such matters can often be counter-productive and actually lessen the chances of a researcher coming out of an investigation unscathed. A “scorched earth” or “bull in a china shop” approach is often employed by some litigation attorneys not experienced in handling such cases. This is often perceived by the academic or physician members of the committee appointed to investigate the matter as being an impediment to reliable communication and academic honesty, as well as an obstructionist attempt to hide the truth. In some rare cases this may be necessary, but in most it will be counter-productive and will hurt the chances of the researcher obtaining a favorable result.

Although federal statutes and regulations provide the authority and general guidance for conducting such proceedings, including a requirement that any such accusations be reported to the NIH, the actual procedures that must be followed will be set forth in state administrative rules or the internal policies and procedures of the academic institution concerned. The state’s Administrative Procedure Act (APA) will also govern such matters. A working knowledge of how such procedures work and of administrative law is crucial. Although criminal charges may come out of such investigations, a knowledgeable, experienced health law attorney may be able to obtain a resolution without anyone even considering such action.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians and clinicians who are the subject of such complaints. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators and “whistle blowers” who report such matters including those who become the victim or reprisals and retaliation by the person against whom the report is made.

Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late. For more information visit http://www.TheHealthLawFirm.com.

Emergency Suspension Orders and Medicaid Fraud

In the recent case of Mendelsohn v. State of Florida Department of Health, Mendelsohn’s license to practice medicine was suspended under an Emergency Suspension Order (ESO).

According to the ESO, Mendelsohn is licensed to practice medicine in Florida pursuant to the provisions of chapter 458, Florida Statutes. On December 9, 2010, he entered a plea of nolo contendere in federal court to a charge of conspiracy to commit fraud upon the United States in violation of 18 U.S.C. § 371. As a result of his conviction, the Florida Department of Health immediately suspended his medical license without a hearing pursuant to section 456.074(1), Florida Statutes (2010), which states:

(1) The department shall issue an emergency order suspending the license of any person licensed under chapter 458 . . . who pleads guilty to, is convicted or found guilty of, or who enters a plea of nolo contendere to, regardless of adjudication, to:

. . .

(b) A misdemeanor or felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program.

Mendelsohn argued that his federal conspiracy conviction was not related to the Medicaid program, so the Florida Department of Health could not issue an ESO without establishing that his actions posed an immediate danger to public safety.

Florida law requires that an order directing the immediate suspension of a practitioner’s license contain “every element necessary to its validity . . . on the face of the order.” In general, an ESO will not be upheld unless the order on its face sets out the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare, as well as the Florida Department of Health’s reasons for concluding that the procedure used is fair under the circumstances.

However, Section 456.074(1), Florida Statues, however, requires DOH issue an emergency order suspending a medical license in certain circumstances without regard to specific proof that a petitioner is acting in a way that poses an immediate danger to public safety.

But Mendelsohn asserted that the Florida Department of Health incorrectly found that his conviction required an ESO under section 456.074(1)(b). Section 456.074(1)(b) requires the Florida Department of Health to issue an ESO when a practitioner has been convicted of a “felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program.”

Although Mendelsohn was convicted of a felony in violation of § 18 U.S.C. 371, he contended his conviction was not related to the Medicaid program, and thus, did not support the issuance of an ESO without further proof that he posed a threat to public safety.

The court ultimately agreed with Mendelsohn, deciding “the underlying facts do not qualify as one of those instances where the Florida Department of Health may issue an ESO without providing specific reasons why the suspension is necessary to prevent immediate harm to the public.”

Do not let the Florida Department of Health take away your license unless it is warranted. Contact a board certified health law attorney who is knowledgeable in handling these matters. For more information about Emergency Suspension Orders and other legal matters concerning healthcare providers visit www.TheHealthLawFirm.com.

George Indest is an attorney, board certified by the Florida Bar in Health Law, who represents health care professionals and providers, including pain management clinics and pain management physicians.