Guilty/Not Guilty

June 1 2005 Larry Economos
Guilty/Not Guilty
June 1 2005 Larry Economos

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 agree- ment 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 re- taining 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.EH Larrv 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. lecononioslaw.com, or call HOO-456-0460. 704-375-WI3. or 252-752-6161.