Recent criminal investigations, prosecutions and convictions related to health care fraud across the country signal a new and aggressive approach by the federal government against physicians and other providers. Many of these prosecutions are breathing new life into a dormant criminal statute that has broad applicability to a wide range of provider conduct. On March 4, 2016, a federal jury convicted a licensed anesthesiologist of seven counts of health care fraud. The physician faces a maximum statutory penalty of 10 years in federal prison and a $250,000 fine on each of the seven counts. Restitution is also mandatory under the law. The physician will likely have to forfeit any property, (including real estate, cash, and personal property) that was acquired with proceeds derived from proceeds of fraud. The anesthesiologist was convicted of violating 18 USC § 1347, entitled “Health Care Fraud.” This statute is unique, in that it applies to fraudulent billing of all types of health insurers, including commercial health plans. The Health Care Fraud statute is not limited to false claims arising from governmental programs. The government appears to be utilizing this statute more frequently in federal criminal prosecutions. The statute provides, “whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to defraud any health care benefit program; or to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both.” Key here, is that the statute is not limited to federal healthcare programs such as Medicare, Medicaid and Tricare.
The government presented evidence that the anesthesiologist ran a scheme to defraud a variety of commercial health insurers by submitting, or causing to be submitted, false and fraudulent claims that the doctor had personally directed anesthesia services for Certified Registered Nurse Anesthetists (CRNAs). The anesthesiologist falsely represented that he was present at the time the CRNAs’ services were performed and that he was supervising the CRNAs when in fact he allegedly was not.
To appropriately bill for anesthesia services performed by the anesthesiologist, the physician must provide and document a variety of individual procedures or tasks. When he or she is billing for the supervision of CRNAs, the anesthesiologist must personally perform a sub-set of anesthesia services including pre-anesthetic examination and evaluation, prescribe the anesthesia plan, as well as remain physically present and available to address emergencies. In this case, the anesthesiologist submitted claims indicating that he was present for procedures when he allegedly was not. He also was found to have been personally performing anesthesia procedures himself while concomitantly supervising CRNAs, thereby making him unavailable to assist the CRNAs should a complication or emergency arise.
This case demonstrates how aggressive the government has become in pursuing fraud cases. 18 USC § 1347 is a powerful weapon available to the government and it has broad applicability to all types of providers, including physicians, pharmacies and ACSs. In essence, any claim filed for health care services, whether or not submitted to a federal payor, can invoke the use of this statute. Moreover, transgressions by providers that in the past had been perceived and handled as simple billing disputes are rising to the level of federal criminal probes. Providers of all types, including physicians, pharmacies, and ASCs should be cognizant of the government’s increased enforcement activity.
The attorneys at Frier Levitt have vast experience in counseling clients on how to avoid running afoul of federal and state law, as well as defending civil and criminal allegations. We assist clients in avoiding suspect behaviors and counsel them on how to develop corrective action plans. Contact us today.
