Dr. Robinson, who owns Quality Care Chiropractic Center, has a run in with the State Employees Health Insurance Program (SEHP). He’s accused of up coding surface electromyographies and failing to maintain documentation necessary to show medical necessity for the treatments. He explains that it’s all due to negligence, and a civil settlement agreement is reached where, in return for continued program access, Dr. Robinson promises to adhere to a probationary period of two months, wherein he will not submit claims, and to attend several claims filing seminars.
During the probationary period, Dr. Robinson reorganizes his clinic, switching title ownership to a partner, while retaining beneficial ownership of the practice. In the absence of strict guidelines as to incidental billing rules, Dr. Robinson, in order to make ends meet, instructs his partner to submit many jointly treated patients under his partner’s provider number, so full payment for services can be obtained. The claims are electronically filed and checks are returned in the mail representing payment.
Just prior to passage of the probationary period, a civil subpoena arrives from SEHP’s legal counsel, requesting all medical records documenting several of the claims filed for jointly treated patients. Dr. Robinson and his partner agree that only the partner’s medical records should be furnished for review.
Guilty or not guilty? In this case, guilty. Dr. Robinson and his partner have committed health care fraud and mail fraud by devising a scheme to obtain insurance monies to which they were not entitled. Despite the electronic filings, the requirement of a mailing is satisfied by the insurance company’s mailing of checks in payment of the claims that misrepresented the fact that only the partner had treated the patients.
Confusion as to incidental billing rules is not a good defense, especially given the explicit terms of the settlement agreement. As the two agreed to engage in the claims’ filing, the two are guilty of conspiracy to commit mail fraud, as well as conspiracy to commit health care fraud. And, as if that’s not enough, they both will need a good attorney to try to wiggle themselves out of an obstruction of justice charge for failing to comply fully with the subpoena.
Larry Economos, a civil and criminal defense attorney whose practice focuses on federal health care fraud defense, is a managing partner with Mills & Economos, LLP.
Go to www.leconomoslaw.com, or call 800-456-0460, 704-375-9913, or 252-752-6161.