The Grey Area Between Civil and Criminal Fraud

This segment is rated ‘F’ for fraud. It is not for the meek of heart. How many of you have read a newspaper or seen the news about Medicare and Medicaid provider fraudsters? There is a grey area between civil and criminal prosecutions of fraud. Some innocent providers get caught in the wide, fraud net because counsel doesn’t understand the idiosyncrasies of Medicare regulations.

Health care fraud GENERALLY exists as one of the following:

  1. Billing for services not rendered;
  2. Billing for a non-covered service as a covered service;
  3. Misrepresenting the DOS
  4. Misrepresenting location of service;
  5. Misrepresenting provider of service
  6. Waiving deductibles and/or co-payments
  7. Incorrect reporting of diagnoses or procedures;
  8. Overutilization of services;
  9. Kickbacks/referrals for money
  10. False or unnecessary issuance of prescription drugs

To err is human. Or so Alexander Pope says. I am here to attest that many of those accused providers are innocent and victims of unspecialized criminal attorneys.

One plastic surgeon knows this only too well. Quick anecdote:

Doctor was audited for removing lesions from the eye area and accused of billing for removing cancerous lesions even when the biopsies came back benign. Yet Medicare instructs physicians to NOT go back and change a CPT code after the fact. The physician is supposed to make an educated guess as to whether the lesion removed is benign or malignant. There are no crystal balls so he makes an educated determination.

Since plastic surgery is highly specialized and the physician is highly educated. Deference should be given to the physician regardless.

This plastic surgeon was accused of upcoding and billing for services not rendered. He performed biopsies around the eye of possible, cancerous lesions. Once removed, he would send the samples to lab. Meanwhile, before knowing whether the samples were cancerous, because he believed them to be cancerous, billed for removal of cancerous lesion to Medicare. Correct coding for skin procedures is not impossible. 

In a Local Coverage Determination (“LCD”), beginning 2008, Medicare instructed physicians to not go back and change codes depending on the pathology. “If a benign skin lesion excision was performed, report the applicable CPT code, even if final pathology demonstrates a malignant or carcinoma diagnosis for the lesion removed. The final pathology does not change the CPT code of the procedure performed.” See LCD: Removal of Benign Skin Lesions, 2008. This plastic surgeon relied on CMS’ Medicare regulations and policies, including the Medicare Provider Manual and LCD 2008, which are published by the government and on which Dr. relied.

Doctor hired two criminal attorneys who did not specialize in Medicare. Doctor gets charged, and attorneys convince him to plead guilty claiming that he cannot fight the government. And that the government will seize his property if he doesn’t settle.

He pled guilty to a crime that he did not do. He paid millions in restitution, was under house arrest for 15 months, the Medical Board revoked his medical license, and he lost his career.

The lesson here is always fight the government. But choose wisely with whom you fight.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on May 10, 2021, in Credible Allegations of Fraud, Criminal Medicaid Fraud, Doctors, Federal Government, Fraud, Health Care Providers and Services, Knicole Emanuel, Legal Analysis, Medicaid, Medicaid Attorney, Medicaid Fraud, Medicaid Providers, Medicaid Reimbursements, Medicaid Services, Medicare, Medicare Attorney, Medicare Audits, Physicians and tagged , , , , , , , , . Bookmark the permalink. Leave a comment.

Leave a Reply

%d bloggers like this: