Reports on Unnecessary Treatments in the Medical Industry
There is a fine line between a medical professional being thorough and cautious while diagnosing and treating patients and that same medical professional as being seen prescribing unnecessary treatments to patients.
For the most part, what is considered an unnecessary treatment is subjective — every medical professional and patient could, potentially, have a different opinion on the matter.
What this means is there is no law outlawing the prescription, and conduct of unnecessary treatments. Instead, if a medical professional is caught providing useless therapies to their patients, they may be found guilty of health care fraud.
What Could be Considered an Unnecessary Treatment?
There is no steadfast rule for what is to be considered an unnecessary medical treatment. Since every patient may require a different course of treatment, what is necessary for one patient may be deemed unnecessary for another.
Typically, in cases where the health care fraud comes into play, the treatments in question stood out as obviously unnecessary and were conducted so that the doctor could bill the patient for them.
While standard medical practices determine the basis for what is considered necessary and unnecessary, and while certain are performed with the patients best interest in mind, the issue here is that medical standards and common practices are always changing.
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How can I tell if a Treatment is Unnecessary?
There is no way to tell if a court, or insurance company, will define a treatment as unnecessary.
Instead, it is advisable that whenever you, as a medical professional, prescribe a course of treatment to take note of why you chose this treatment and why it is necessary for that particular patient.
In the event, that you become the subject of an investigation, or charged with health care fraud, these notes may help dismiss any claim of fraud against you.
There is a general list of commonly unnecessary treatments. This list includes:
● Computed tomography pulmonary angiography;
● Computed tomography in any patients with respiratory symptoms;
● Carotid artery ultrasonography and stenting;
● Aggressive management of prostate cancer;
● Supplemental oxygen for patients with chronic obstructive pulmonary disease;
● Surgery for meniscal cartilage tears;
● Nutritional support in medical inpatients;
● Use of antibiotics; and
● Use of cardiac imaging
What is Health Care Fraud?Health care fraud is illegal under 18 U.S.C. §1347, as it provides false information to an insurance provider to obtain money or other property from the provider. The federal crime requires prosecutors to prove 4 elements to obtain a conviction for health care fraud. These elements are:
1) Knowingly or willingly attempts to execute
This means the defendant must have provided the false information knowing it was false. The defendant must have had the intention to falsify or omit information to be submitted to the insurance company, that relies on that information and send money or property in return.
For example, a chiropractor prescribes, then bills an insurance company for additional chiropractic appointments the patient did not need. This may, or may not be considered health care fraud, depending on whether the chiropractor had the patient’s best interest in mind.
2) A scheme or artifice
3) Through false or fraudulent means
Fraud is the deliberate deception of another to secure an unfair or unlawful gain or to deprive a victim of a legal right. Fraud differs from abuse of position as a medical professional or employee. It is an action that is inconsistent with the general practices of the medical industry.
For example, if an oncologist lies to a patient about their health status in order to prescribe them, and bill their insurance for, additional chemotherapy treatments when they do not need them, this would be considered fraud.
However, a doctor prescribing a course of treatment that has a questionable record of working that may be considered abuse.
4) Obtain property or money from a health care benefit program.
Under 18 U.S.C. §24(b), a health care benefit program is any public or private plan that provides medical benefit, item, or service is provided to any individual or provides the payment for those things.
If due to prescribing a course of treatment, a medical professional receives a payout from an insurance provider, they may be guilty of health care fraud. There is no knowledge of, or intent to violate, the federal statute necessary, as they deliberately misled the insurance company.
This statute applies to licensed medical professionals, non-licensed individuals, medical practice owners, health care businesses, and even universities. All may be held liable for health care fraud; even though a medical professional is the prescriber in most cases.
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Unnecessary Treatment SchemesThere are many common schemes that are employed by medical professionals to defraud insurance companies based on unnecessary treatments. Below are some examples of those schemes: Administration of Medically Unnecessary Drugs
Oncologist Charged in Superseding Indictment with Medically Unnecessary Cancer Treatments Scheme
On September 18, 2013, Oncologist Dr. Farid Fata was indicted for 6 years’ worth of health care fraud for prescribing medically unnecessary treatments. He then billed Medicare for $225 million in fraudulent claims, which paid out at a total of $91 million.
Medicare was not the only insurance company that Dr. Fata was defrauding through those 6 years. In one instance, over the course of 2 ½ years, he prescribed over 155 chemotherapy treatments to a patient who did not have cancer.
In 2015, he received 45 years in prison for his role in the health care fraud scheme. One can
read more about this, by clicking this link or copying and pasting the URL below:Prominent Tri-State Cardiologist Sentenced to 78 Months in Prison, $19 Million Billing Fraud Scheme, Exposing Patients To Unnecessary Medical Treatment.
In November 2013, Dr. Jose Katz was sentenced to 78 months (about 6 ½ years) in prison, 3 years of supervised release following his sentence, and was ordered to pay $9 million in restitution.
Dr. Katz, the owner and CEO of two large companies in New York and New Jersey, used his companies to bill Medicaid, resulting in close to $15.6 million in payouts. For about 7 years, he ordered and performed the same tests for most of his patients, regardless of their symptoms.
One can read more, namely how he instructed his non-physician employees to order and perform the same diagnostic tests, by clicking this link or copying and pasting the URL below:
On Thursday, January 7, 2016, Dr. Arthur Davida was sentenced to 2 years in prison for his role in a health care fraud scheme. From 2010 to 2013, he signed orders stating how certain patients were confined to their homes, and needed in-home care. These patients, in reality, did not.
In order for a patient to receive an in-home health aide, a doctor must certify that they are confined to their home. Said doctor must also sign off on a treatment plan. His fraudulent claims cost Medicare about $20 million dollars.
To read more from the DOJ press release, click this link or copy and paste the URL below.
Penalties for Convicting Health Care Fraud?
If convicted on charges of health care fraud due to actions as a home health aide, severe penalties may include:
- Up to 10 years in prison.
- If death or serious bodily injury are involved, up to 20 years in prison.
- Fines ranging form $250,000 to $500,000, depending on if one is an individual defendant, or a member of a defendant organization.
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How Will a Health Care Fraud Case Proceed?Enforcement of the Statute
There are several government agencies that are tasked with enforcing the federal health care law statute.
The “heavy lifting,” so to speak, typically falls into the Department of Health and Human Services Office of Investigations (HHS-OI), since they are charged with the oversight of the Medicare and Medicaid programs.
The Federal Bureau of Investigation (FBI), the Medicare Strike Force, and the United States Department of Justice (DOJ) will also help in the investigations and enforcement of the statute.
Investigations into potential fraudulent conduct can begin in many ways.
Some examples may be, a patient reports you for not providing them with proper treatment; a former, or current employee alert the authorities for suspicious legal activities; or, due to questionable results from a Medicare billing audit.
Please note if you become the subject of a health care fraud investigation, you should contact an attorney immediately, and comply with the warrant you are given. But never answer questions or make statements without your counsel present. You may risk incrimination.
The DOJ will file charges in the appropriate federal jurisdiction, which means the court that can hear the case. This determination is made based on where the criminal activity took place. It may also take place where the victim(s) are located, or where the defendant(s) live.
For example, if your medical office is registered as a business in New York, but the fraudulent conduct took place in conjunction with medical work you did in New Jersey, either may be considered proper jurisdiction for the case to be heard in.
It is imperative to enlist an experienced attorney as soon as possible. Having someone to protect your rights and interests at every level or a case, from investigation to sentencing — if it comes to that, will help make sure you receive the best result possible.
What You Can Do
First and Foremost, contact an attorney. Under investigation or not, an attorney can help ensure you never become a fraud victim. And always remember to never speak to investigators without your counsel present. Your responsibility is to yourself and your patients.
Our attorneys possess knowledge in medical billing and coding, in the different health care fraud schemes that commonly affect home health aide services, and in the importance of patient confidentiality, which allows them to individualize the help they can provide you.
You take care of your patients, when they are going through hard times, and let an experienced attorney do the same for you.