Healthcare Fraud

Healthcare Fraud Defense Attorney

Daniel Horowitz: Leading Trial Lawyer in Healthcare Fraud Defense

In federal courts from New York to Oakland and San Francisco healthcare fraud defense lawyer Daniel Horowitz specializes in criminal defense. Few healthcare fraud defense groups have even a single attorney certified as a “Criminal Defense Specialist” by the State Bar of California (Board of Legal Specialization). Lawyers in Lafayette has three affiliated specialists, Daniel Horowitz, Dan Russo and Carmela Caramagno. Board specialization makes a difference in medicine and in criminal defense law.

A healthcare fraud lawyer needs to be expert not just in criminal law. It is necessary to be expert in healthcare law specifically and medical issues as they relate to medical fraud counts. Our group has that medical expertise as well as over 500 jury trials by the three criminal law specialists.

Healthcare Fraud is Different from Financial Fraud

Our lawyers are often asked to explain how medical fraud differs from standard criminal fraud. This is an important question because healthcare fraud charges are often filed against doctors and medical practices that have not deliberately violated the law.

Are Kickbacks Legal?

Think of this “Are kickbacks legal?” Of course not. The minute you put the label “kickback” on the conduct the answer is obvious. The real question is what is a medical kickback? Can a PCP refer to a surgeon? Yes. Can that same surgeon refer to the PCP? Yes as well. And yet, depending upon their motivations this may be an improper referral. On a larger scale if a surgery center provides assistance to surgeons providing transportation for the surgeon's patients, high scale housing and restaurants when the surgeon commutes over 50 miles and stays for a week to do scheduled surgeries and the center handles the surgeon's paperwork, coding and provides supplies - is this good medical practice or kickbacks? What if the surgery center provides payments for marketing services and other contractual payments? See the Dr. David Payne case for some answers.

The Stark Law, Stark Law ancillary exceptions, the AKS (anti kickback law), the Federal Exclusion Statute, even worker's compensation fraud are often creatures of statute and are not inherently evil acts. This means that doctors facing criminal fraud charges are often shocked to learn that their innocent conduct may involve criminal consequences.

COMMON MEDICAL FRAUD STATUTES

Physician Self-Referral Law (42 U.S.C. § 1395nn):   The Physician Self-Referral Law is commonly referred to as the (Pete) “Stark law”.  It prohibits physicians from referring patients to receive "designated health services" payable by Medicare or Medicaid. When you see a term such as Medicare fraud attorney it often refers to allegations of Stark violations but not necessarily. The Code of Federal Regulations has a myriad of rules that a practitioner, hospital or medical practice can violate. 

Generally the violations result in a compensation dispute but at times there is Stark law spillover. Stark law violations are limited to “designated health services” and the referral has to be from entities with which the physician or an immediate family member has a financial relationship.  And then there are many exceptions.

See AMA Summary of the Stark Law

See CMS Summary of the Stark Law

See OIG Summary of Stark & Other Healthcare Fraud Laws

Anti Kickback Statute (AKS) 42 U.S.C. § 1320a-7b(b): The AKS is a criminal statute carrying potential time in federal prison. It is a crime that requires a low level of criminal intent. You need not intend to violate the law (counterfeiting is an example of a crime where there is a clear (and obvious) intent to violate the law. To violate the AKS you need only act knowingly and intentionally to do something that is prohibited.

What is prohibited under the AKS? Many things including paying (remuneration) money or providing something in exchange for getting a patient referral. It gets more complex and involves creating business for any item reimbursed from a federal healthcare program. AKS penalties include prison terms, fines and exclusion from participation in the Federal health care programs.

Eliminating Kickbacks in Recovery Act (EKRA): EKRA is codified at 18 U.S.C. § 220. The key provisions of EKRA include:

● Prohibiting the solicitation or receipt of any remuneration in return for referring a patient to a recovery home, clinical treatment facility, or laboratory.

● Prohibiting the offer or payment of any remuneration to induce such referrals.

The law is focused on people or companies that were getting paid for making referrals to:

● Recovery homes
● Clinical treatment facilities
● Laboratories

18 USC 1347 the Federal “Catch-All Fraud Statute: Billing fraud and more generally health care fraud, is a overly broad area. There are thousands of pages of rules and regulations and many other relevant statutes. These include 18 USC 1347 (Plain Vanilla Health Care Fraud), 18 USC 1349 (Conspiracy related to Health Care Fraud), 18 USC 1035 (Health Care related false statements) and 18 USC 1956 (money laundering related to health care fraud).

California Penal Code Section 550 (Similar as a “catch-all” to 18 USC 1347, the Federal Health Care Fraud statute): In California, Penal Code section 550 is used as a catch-all provision for health fraud by physicians, providers of ancillary services and even attorneys representing injured workers.

(a) It is unlawful to do any of the following, or to aid, abet, solicit, or conspire with any person to do any of the following:

(1) Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance.

This section is often used in very creative and aggressive ways. Minor violations and billing disputes are rocketed into a felony charge (PC 550) because any error or minor infraction can be deemed a “false claim” once it is put in the form of a bill sent to an insurance company.

Chiropractors forming medical corporations with physicians are often charged with this section and with practicing medicine without a license. Physicians and chiropractors may see this charge filed in the context of anti-kickback or self referral charges made more serious by being charged under this felony section. Physicians operating physical therapy centers and chiropractors who do more than simple adjustments are the targets of special scruitiny.

Beneficiary Inducement Statute:

The beneficiary inducement statute (42 U.S.C. § 1320a-7a(a)(5)) imposes financial penalties on Medicare / Medicaid providers if they pay patients to use their practices. Seems easy to avoid. But what is payment ? Does your medical practice provide free ancillary services that medical other practices bill for ?

What about free diagnostic services provided by an imaging center for you and your office staff? How many chiropractic offices advertise free diagnostic exams or free massage with treatment ? Can you waive copayments for client’s having financial difficulties ?

What is the "Eliminating Kickbacks in Recovery Act" (EKRA)?

Read Daniel's Blog Post on Why We Track Large Hospital Stark Cases

PHYSICIANS BEWARE - DON'T LEND YOUR NAME

FEDERAL SENTENCING FOR HEALTHCARE CRIMES

What Happens to Doctors Charged with Fraud

Factors that Increased the Federal Sentence

♦ the number of victims or the extent of harm to victims (16.9%); ♦ conviction of a federal health care offense involving a government health care program and a loss or more than $1 million (32.6%); ♦ using sophisticated means to execute or conceal the offense (20.2%);5 ♦ using an unauthorized means of identification (4.5%); ♦ leadership or supervisory role in the offense (25.2%); ♦ abusing a public position of trust or using a special skill (34.4%); ♦ obstructing or impeding the administration of justice (8.5%).

Factors that Decreased the Federal Sentence

Sentences were decreased for: ♦ minor or minimal participation in the offense (6.1%)

Cooperation

Attorneys pay attention to “cooperation”. This is a key sentencing factor in federal cases. Cooperation means you admit what you did early in the process and assist in prosecuting other persons involved. 40.7%f the persons sentenced received a substantial assistance departures. This means 40% cooperated with authorities against others.

United States Sentencing Commission - Quick Facts re: Health Care Fraud Sentencing

Daniel Horowitz is a physician lawyer. He is not a hospital lawyer and never will be. Your medical practice and your hard earned professional integrity deserve respect and protection. Daniel Horowitz is dedicated to the individual doctor and small-medium sized medical groups. Our main office is in Lafayette, California (Contra Costa County). We represent doctors throughout the state of California and in federal courts nationwide.

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They Follow Your Money – We Can Follow Their Money

Insurance companies provide funding to prosecutors. Special taxes on employers also support fraud investigations. This means there is a financial and emotional incentive for fraud prosecutors to file charges. The insurance companies become “crime fighting” partners to the district attorney white collar crime units. Medical practice management has many grey areas. Few white collar prosecutors have sufficient medical/medical billing/delegation of medical duty background to accurately assess the legitimacy of your conduct.

Many seminars are funded by insurance companies and some local prosecutors are “honored” with the opportunity to speak at those seminars to promote their careers. Prosecutorial objectivity is often compromised.

BIG PROFITS – False Claims Act, 31 U.S.C. 3729 (FCA)

The False Claims Act, 31 U.S.C. 3729 (FCA), is a federal civil fraud statute. The FCA allows healthcare fraud, medicare fraud, and false claim lawsuits to be filed by professional litigators, disgruntled former employees and others. They are called “relators” and they sue on behalf of a “defrauded” governmental entity. The incentive is a percentage of the final recovery.

The government can also file its own civil fraud claim.

Many times, a criminal case will follow shortly after the filing of one of these cases. Sometimes the False Claims Act filing with be parasitic and follow the filing of criminal charges. This is yet another expense that burdens a defendant. Fortunately, some insurance policies will defend against these claims.

A Legal Type of Corruption

Former Law Enforcement Agents Work for Insurance Companies

Insurance companies often hire former law enforcement agents who are experienced in developing criminal fraud cases. Their years of establishing contacts within prosecutors offices give them inside / personal connections that put their investigative target (you), at a disadvantage. Watch a California Dept. of Insurance SIU Training video HERE.

Insurance Company Lawyers Teach Prosecutors the Law

Seminars, in house training, and political lobbying are tools that change prosecutors’ INTERPRETATION of the law. There is no back and forth dialogue, there is only Iago whispering in Othello’s ear.

Professional boards such as medical boards, can and often will, provide guidance on contested issues. They can weigh in on unfair prosecutions and provide support. Unfortunately the boards are over worked, over politicized, and often leave the issue “to the courts”.

Shock & Awe

Set Your Alarm for 6:30 am

Police raids at 7 in the morning are videotaped by invited television news teams.

Press conferences are held by the Department of Insurance while the physician sits in jail waiting to be booked. By the time the physician has been released on bail, significant personal and reputational damage has been done. So much for innocent until proven guilty.

Blue Skies

Massive news publicity is part of the attack. California Insurance Code Section 1871.9 mandates the posting to the Department of Insurance’s public web site the names of people convicted of Worker’s Compensation Insurance Fraud. The “Blue Sky” scenario is no longer just part of the insurance company game plan. Insurance lobby groups have succeeded in getting the publicity law passed. Guilty until proven innocent is now written into the law.

As one of our experts once testified, it’s all about “blue skies”. Once they arrest you, the insurance companies have already won. Word spreads in the medical community and physicians become very cautious – they run from the rain to the “blue sky”. 99244’s get billed as 99243. Your arrest saves the insurance companies millions of dollars. When you are an attorney providing medical license defense you understand the political forces that drive prosecutions.

CONTINUING EDUCATION FOR THOSE WRONGFULLY ACCUSED

If you are reading this far down the page, you have entered the medical practice Twilight Zone. Here are additional, harsh realities.

Professional License Defense is a Bar Room Brawl

Judge Tom Rogers (Alameda County) once said, “A jury trial is a bar room brawl.” The same is true of medical license defense. Civility is fine in the legal profession but only when it comes from a place of strength.

Trial By Jury ??

If you are facing a professional board accusation you never see a jury. Your license, your career, are in the hands of an experienced Administrative Law Judge [View OAH Website for Admin Law Judges] The judge handles this type of case, over and over and over ……… . In other words, they tend to know all the players, prosecutors, experts and it is a small community.

Could it get any worse ? Yes it can ! If the ALJ rules in your favor, you still haven’t won. The medical board that initiated the action against you, gets the final say.

Click HERE to get a brief bio for your Administrative Law Judge.

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Client Testimonials

Contra Costa County Location - National Reputation for Excellence

“He believed in me and listened to what I had to say.”
I can not say enough about Mr. Horowitz and his staff. Brook was amazing to myself and my family. My case was very unique. He believed in me and listened to what I had to say. I highly recommend him and his staff. Yvett Bline

Yvett Bline
“The Best Attorney I Could Have Asked For”
Dan Horowitz was the best attorney I could have asked for during a difficult time in my career. From the moment I met him, I felt believed, respected, and safe. He and his team were endlessly responsive and empathetic to me and my family. He fought for my case day and night, always keeping my best interests at the forefront of his mind. As I learned from Dan, it is never a good time in one’s life to need legal representation - but if you need it, Dan is your person, your advocate, and your best friend. We are forever grateful for his tireless commitment to justice for the people.

Katherine
“I would highly recommend the Law Office Of Daniel Horowitz.”
My experience with Dan was great. I appreciate the knowledge Dan has and the professionalism they exhibit. I would highly recommend the Law Office Of Daniel Horowitz. My family and I are truly grateful we worked with him.

Brandon D.
“Tough, humble, has integrity - simply THE best.”
Tough, humble, has integrity - simply THE best. With Dan it is not so much about the money but about doing what is right. A very rare breed. He has honesty and integrity and the jurys see it. If he doesn't believe in the case or the client he won't waste your time or his. But you better listen to him!...Believe an trust in him. I did and I am totally indebted to him. He is "The best of the best." Thank you Dan for all you have done and continue to do. Carole~ Arbuckle v. Board of Chiropractic Examiners

Carole A.

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