Wednesday, January 16, 2013

Medicare Fraud

     Medicare paid out $528 billion for medical services in 2010.  The Office of Management and Budget says that almost $50 billion was for "improper"--i.e., fraudulent--claims.  That's about ten percent, and the government is hell-bent on recuperating it from physicians.
     The biggest Medicare fraud raid in U.S. history involved Florida's current governor, Rick Scott.  He was CEO of Columbia-HCA when the corporation pleaded guilty to many criminal and civil charges and paid out $1.7 billion.  $500 million of this was distributed to whistleblowers, and Rick Scott was fired.  This didn't ruin his career;  in fact, it may have prepped him for politics.  Since the case was settled, it's unclear how much "fraud" really occurred.
     The U.S. government allocates hundreds of millions of dollars a year to fighting Medicare fraud.  It relies on whistleblowers to help rake in money, which funds many more raids and keeps FBI agents employed.  It's hard to know how successful the Medicare Task Force against Fraud really is, because pre-trial settlements like the one at Columbia account for "recuperated" money, and fewer than one-third of arrests for Medicare fraud result in convictions.  Medicare tends to report how many charges it has made against doctors, and how much money it has taken--but not how many cases ended up in trial and were proven to be bona fide fraud. 
     Obama's Affordable Care Act added $350 million more to the coffers of federal agents, whose job is to find and prosecute fraud.  At the same time, it has made it easier for government officials to meet the requirements to indict physicians under Anti-Kickback legislation and the Healthcare Fraud Statute.
      In 2011 the government claims to have collected $4.1 billion in fraudulent payments.  That's the year the FBI raided my clinic and took $400,000 of assets earmarked for clinic functioning.  The prosecutor in my case has yet to divulge the reasons for the forfeiture and, if it's "Medicare fraud," the nature of my fraudulent acts.  Nevertheless, I wouldn't be surprised if the money stolen from my bank accounts has been included in that big anti-fraud figure officials quote as a way of bragging to Americans about what a good job they're doing at the Department of Justice.  It's easy to do a good job collecting money when you're allowed to walk into banks and rob people's accounts, without having to explain a thing, and without fear of repercussions.
     The Physicians Practice web article on April 24, 2012 outlines three ways physicians commit Medicare fraud, by violating one of the following statutes.
     1.  Physician self-referral.  This is when a physician refers patients to a relative who could benefit financially from the referral..  For example, if my brother owned a dialysis center, I couldn't refer my renal patients to him without violating the Stark law and being guilty of a federal crime.
     2.  Anti-kickback.  This law prohibits doctors from paying people, such as my patients, for recruiting other patients into my practice.  The consequences for this are "dire," the article says, and there is "considerable gray area" in its interpretation. 
     3.  Civil false claims.  This covers:  a) sending claims for services that weren't provided.  b) sending claims for patients who weren't seen.   When erroneous claims are sent without the physician's knowledge, the crime is called "reckless disregard."  If I billed Medicare for an EKG but didn't do an EKG, I'd be guilty of breaking this law.  Medicare and law enforcement officials have expanded this violation to include times, for instance, when an EKG was performed,  but "wasn't necessary."  Here's where it behooves the government to pretend it knows how to practice medicine.  While it may be true that a doctor shouldn't be doing an EKG for foot pain, that's not the kind of transgression FBI agents are catching.  Medicare's software is smart enough to reject such claims, because the diagnosis of foot pain doesn't match the list of acceptable diagnoses for doing an EKG, hence no payment would be made.
     One way for government agents to collect money is to interpolate themselves between doctors and patients, without having been in the exam rooms and without knowing anything about patients' medical history, and say that the tests and procedures done weren't necessary.  They can make accusations that doctors have broken the law by billing false claims.  The threat of an indictment, felony, jail time, or ignominy is so terrifying to doctors that they settle out of court, paying big "fines," to make the case go away.  That's how the feds make so much money.
     The fines and penalties for false claims include:  a) refunding the amount the government says it shouldn't have paid;  b) paying three more times that amount in "damages;" c)  paying a fine of between $5,500 and $11,000 per error/false claim.  These fines add up to millions of dollars.  Most doctors work out a "deal" with government officials to pay less and shut up.
    A healthcare attorney on the Physicians Practice site says, "Physicians really can't fly under the radar like they thought they used to be able to, now."   Have physicians been trying to fly under the radar?  That's news to me.
     A podcast on civil false claims violations at Physicians Practice starts with a warning, saying the law is so complicated that physicians can't hope to understand it without the help of a healthcare attorney.  As far as I'm concerned, the law should be as simple as, Thou shalt not lie.  There can only be one reason for it being more complicated:  it makes it easier for government officials to trip doctors up, and collect fines.
     I can't guess how the government might twist and reframe my office visits with patients so they can come up with charges against me in any of the above categories.  I don't accept law enforcement officials telling doctors how to practice medicine.  And, I will not settle, nor will I balk at bringing my case to court for a real jury to hear, if it should come to that.

        

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