On October 15, 2021, the U.S. Attorneys’ Office for the District of Connecticut announced the sentencing[1] of an unlicensed and unqualified individual posing as an applied behavioral analysis (commonly referred to as “ABA”) provider in connection with a health care fraud scheme to fraudulently bill the Connecticut Medicaid Program (“Medicaid”). The defendant was sentenced to 27 months of imprisonment and three years of supervised release. Following an investigation by the U.S. Department of Health and Human Services Office of the Inspector General (“HHS-OIG”) and the Federal Bureau of Investigation, Defendant pled guilty to one count of health care fraud, in violation of 18 U.S.C. §1347, and using false information in connection with another crime, in violation of 18 U.S.C. §§1028(a)(7), (c)(3)(A), and (b)(1)(D)[2].
In this case, Defendant knowingly caused the submission of false claims to Medicaid for ABA services that Defendant was not qualified to furnish. To submit claims to Medicaid, a Board-Certified Behavior Analyst (“BCBA”) must either furnish the services, or supervise a technician’s or other professional’s provision of services. BCBAs are required to have graduate level education and certification, and to fulfill Medicaid credentialing requirements. Defendant did not have the requisite education and certification as a BCBA, or any formal ABA training; nor was she supervised by a BCBA while providing ABA services to twelve pediatric Medicaid beneficiaries diagnosed with autism.
Using a legitimate BCBA’s name without that provider’s knowledge, Defendant effectively impersonated a BCBA for the presentation of a minor client’s ABA information to Connecticut’s behavioral health Administrative Services Organization for Medicaid, causing the submission of over 1900 false claims to Medicaid. As a result, the employer wrongfully received at least $369,439.96 in reimbursements, and reportedly paid Defendant at least $146,000.00. The owner of employer also pled guilty to healthcare fraud and awaits sentencing.
This case demonstrates a growing enforcement focus on the provision of behavioral health services. In March 2021, the Department of Justice announced a $2.7M settlement[3] following an audit of claims submitted to TRICARE for behavior health care services to children with autism spectrum disorder, in which the alleged identity of providers and time associated with the billed claims were in dispute. This week, two defendants, one of which owned a counseling agency and the other of which acted as the manager of said agency, pled guilty[4] to healthcare fraud in connection with $3.5M of fraudulent claims for behavioral health services submitted to Medicaid programs in Louisiana. In addition, in September 2021, the HHS-OIG published its report of a study[5] that identified the need for states to monitor Medicaid programs for fraud, waste and abuse in connection with behavioral health services furnished via telehealth[6]. Frier Levitt is monitoring these enforcement activities, as well as the development of more stringent licensing requirements for ABA providers in many states.
How Frier Levitt Can Help
Behavioral health providers are increasingly being subjected to audits and investigations for a variety of reasons, including but not limited to unqualified clinical personnel, and documentation deficiencies. Our firm routinely advises clients regarding licensure requirements, payor audits, government investigations, and other regulatory matters. In light of the potential for civil and criminal liability, providers facing an audit or investigation are well-advised to seek the advice of experienced healthcare counsel. For providers who identify billing improprieties as a result of an internal audit, self-disclosure may be an option to help to avoid the harshest penalties. For more information, call Frier Levitt to speak with an attorney.
[1] https://www.justice.gov/usao-ct/pr/imposter-provider-autism-services-serve-prison-time-fraud-and-identity-theft-offenses
[2] See 3:21-cr-00083-JAM ECF No. 10
[3] https://www.justice.gov/usao-sdtx/pr/former-children-s-autism-service-provider-pays-over-27-million-resolve-health-care
[4] https://www.justice.gov/usao-wdla/pr/owner-counseling-agency-and-supervising-manager-plead-guilty-conspiracy-commit
[5] https://oig.hhs.gov/oei/reports/OEI-02-19-00401.asp
[6] Georgia Woman Pleads Guilty as a Result of a Nationwide Telehealth Fraud Investigation (frierlevitt.com) or Recent HHS Announcement Further Expands Access to Telehealth, But Does CMS’ Final Rule Do the Same? (frierlevitt.com)
