Posts Tagged legal

Do You Record Patient Phone Calls? Here’s What You Need to Know.

Do You Record Patient Phone Calls? Here’s What You Need to Know.

A physician practice recently inquired about implementing a policy pursuant to which the practice would begin recording phone calls to and from patients and referring providers. The practice of recording phone calls is not uncommon. For example, every time you call a customer service number you are informed that the call “may be recorded for quality purposes.” However, there are some legal issues to consider before implementing a policy pursuant to which you record phone calls with patients.

First, from a HIPAA perspective, any entity you contract with to record the calls with patients and to store the recordings will need to sign a Business Associate Agreement, in which such entity agrees to protect the patient information it receives. Failing to obtain a Business Associate Agreement in this instance would be a violation of HIPAA.

Second, there is the question of whether you need to inform the patient the call is being recorded. Alabama is considered a “one-party consent” state, meaning you only need the consent of one party in order to record a call — and that one party can be the party making the recording. Thus, as long as the physician practice is aware of the recording, a patient located in Alabama does not have to be informed the call is being recorded. However, things get more tricky when you are making and/or receiving calls from patients located outside of Alabama.

Other states (including the neighboring state of Florida) are “two-party consent” states, meaning you need the consent of both parties in order to make the recording. If a call is made from a physician practice in Alabama, a “one-party consent” state, to a patient located in Florida, a “two-party consent” state, the general legal consensus is that the physician practice must comply with the more stringent “two-party consent” requirements. Thus, under this scenario, a disclosure would need to be made to the patient located in Florida that the call is being recorded.

Finally, the issue of malpractice liability should be considered. While a phone recording can be helpful in the event of a negative outcome (to prove what information was provided to the patient), it, just like any other documentation, can also be harmful (to prove what information was not provided to the patient). Thus, physician practices considering recording more than routine scheduling calls need to give some thought as to whether such recordings will be helpful or harmful if an issue were to arise. Practices may also want to reach out to their malpractice carriers to see if they have any opinion or policy regarding recording phone calls with patients.

Kelli Fleming is a partner with Burr & Forman LLP practicing in the firm’s Health Care Industry Group. Burr & Forman LLP is a partner with the Medical Association.

Posted in: HIPAA

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You Need to Know When to Hold ’em and Know When to Merge ’em

You Need to Know When to Hold ’em and Know When to Merge ’em

With uncertainty in the health care markets and the growing demands on medical practice infrastructure, many physicians are thinking that merging their practice with another might be a worthwhile idea. A merger might be advisable under some circumstances, problematic in other cases, and potentially illegal in certain instances. We will leave the legal issues to the attorneys, but if you are talking with the only other practice of your specialty in your city, I recommend getting some legal advice.

When physicians initiate merger discussions, they often begin with an assumption that they can share the overhead of one group and all enjoy a dramatic increase in personal income. Based on the enthusiasm generated by this monetary issue, a plan to pursue merger begins. However, there are other matters which should come before the optimistic expectation of financial gain.

Do Your Homework

The most basic consideration is whether the physicians in both groups are clinically compatible. Medical training and various academies afford latitude in clinical decision making, a medical choice at one end of that range of latitude can be questionable in the mind of an M.D. on the opposite end. Making certain your groups are clinically compatible is the first step in a successful merger. Compatibility also includes practice patterns, treatment protocols and utilization issues.

If you are a good fit clinically, look next at cultural issues. This includes the manner in which the physicians relate to their patients, the staff and to one another. Many groups will not tolerate a physician who is rude to patients, hostile to staff and abrasive with other doctors in the group or in the medical community. This behavior may have been accepted in one group, but it will be toxic in the merged practice. In my experience working to help keep practices together, cultural differences are the most common areas of disagreement and are also the most difficult problems to solve.

Devising a Plan

If the groups are deemed to be clinically and culturally compatible, the hard part is complete. Now you are ready to address any differences in work ethic. I place this third because if there are differences, they can be mitigated with a well-designed physician compensation formula. There are times when one physician’s pursuit of appropriate work-life balance might result in choices which appear to another M.D. as neglect of the practice, but those are part of the cultural difference resolution. Differences in work ethic must be accommodated in the practice of medicine, and bonus differentials are designed to do exactly that.

Finally, it is time to assess the monetary matters. Overhead can be shared and, perhaps, reduced. The practice management, billing and EMR systems needed for one practice might be able to handle two groups with little increase in costs. Ancillary activities may be more profitable with additional physicians referring to them. The best practice behaviors of each group can be shared to improve patient scheduling, procedure mix, payer mix and revenue cycle processes.

Bet or Fold

The process of determining clinical, behavioral, work ethic and financial compatibility needs an outside facilitator to keep it on track and to ensure the difficult parts of the dialogue are addressed and moving forward, rather than stalling out. A merger may be in the cards for your group, but keep in mind that one done poorly can cause many years of pain which could have been avoided.


Article contributed by Sae Evans, Maddox Casey and Jim Stroud, Members, Warren Averett Healthcare Consulting Group. Warren Averett is an official Gold Partner with the Medical Association.

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The New Department of Justice Initiative: Aggressively Investigating and Prosecuting Opioid-Related Cases

The New Department of Justice Initiative: Aggressively Investigating and Prosecuting Opioid-Related Cases

Before joining Burr & Forman, LLP, I was a federal prosecutor for a little over a decade specializing in health care fraud and general white collar matters. In that role, I was the member of a prosecution team that secured guilty verdicts earlier this year against two pain management doctors in Mobile, Ala., following a protracted jury trial. The doctors were convicted of a litany of federal crimes arising from their operation of a pain management clinic, including, among others, violations of the Controlled Substances Act and the Anti-Kickback Statute. The doctors received substantial prison sentences of 20 and 21 years, respectively, and forfeited virtually all of their assets (including bank accounts, houses and cars) to the government.

The doctors in this case were convicted of running what the government calls a “pill mill,” a pain management clinic that allegedly prescribes narcotics for illegitimate purposes. Pain management professionals should be aware this is just one example of what will likely be an onslaught of “pill mill” and other opioid-related prosecutions by the Department of Justice (DOJ) during the current administration. In fact, just a few months after the convictions in the Mobile case, Attorney General Jeff Sessions announced a nationwide takedown of 120 doctors, pharmacists and nurses – dubbed “Operation Pilluted” – who were charged with various federal crimes related to their alleged “unlawful distribution of opioids and other prescription narcotics.” In announcing the takedown, Sessions noted the DOJ would continue to “aggressively pursue corrupt medical professionals,” and “the Department’s work is not finished. In fact, it is just beginning.”

On the heels of that announcement, in August of this year, Sessions heralded a new DOJ pilot program called the “Opioid Fraud and Abuse Detection Unit.” According to Sessions, the unit “will focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to the opioid epidemic.” Sessions warned, “If you are a doctor illegally prescribing opioids or a pharmacist letting these pills walk out the door and onto our streets based on prescriptions you know were obtained under false pretenses, we are coming after you.” Sessions explained the DOJ would be appointing a special federal prosecutor in 12 select districts across the country whose sole purpose will be to prosecute “pill mill” and other opioid-related cases.

One of the districts, which has received one of the special “pill mill” prosecutors, is the Northern District of Alabama, in Birmingham. The U.S. Attorney for that district, Jay Town, separately confirmed the new prosecutor will spend “100 percent of their time working these types of cases…What we’re going after is the medical providers who are operating outside the boundaries of the law and the medical practice.” Echoing the Attorney General’s statements, Town vowed, “We’re going to rid the Northern District of these pill mills.”

Note “pill mills” are not the only opioid-related cases on the DOJ’s radar. In fact, it is also concentrating on the “diversion” of opioids in hospital settings. Such “diversion” schemes include, for instance, the theft of opioids from a hospital “Pxyis” machine (a device hospitals utilize to regulate the dispensing of controlled substances) by nurses, or the forgery or fraudulent creation of opioid prescriptions by hospital personnel.

In sum, the DOJ has fired a warning shot that physicians, pharmacists and other medical professionals involved in the treatment of patients will be under intense scrutiny for the foreseeable future. This is especially true for physicians who operate pain management clinics. These doctors should, in general, prescribe opioids reasonably and carefully in the context of each patient’s presentation and thoroughly document their treatment.

To that end, doctors should, among other things: maintain a thorough intake procedure, which requires the patient to give a detailed medical history and provide previous diagnostic studies; have the patient sign, if applicable, an “opioid treatment agreement” requiring the patient to abide by certain opioid use guidelines; perform exhaustive physical examinations during the initial visit and at regular intervals during the patient’s treatment (which should be carefully documented); consider alternatives to opioid treatment, such as non-narcotics drugs, physical therapy and surgery (and, where applicable, carefully document why alternative treatments would be ineffective); prescribe the lowest dosage and quantity of opioids possible to treat the patient’s condition; closely monitor for signs of diversion and addiction by regularly ordering urine drug screens and reviewing the patient’s prescription drug monitoring data; and have regular independent audits conducted by a billing consultant or another pain management specialist to ensure compliance with all regulations and laws. Implementing these practices should help doctors avoid government scrutiny as part of the DOJ’s new initiative to crack down on alleged “pill mill” operations.

Adam Overstreet is counsel at Burr & Forman, LLP. Prior to joining Burr, Adam practiced with the U.S. Attorney’s office and gained extensive experience with health care fraud matters. Burr & Forman, LLP, is a partner with the Medical Association. Please read other articles from Burr & Forman, LLP, here.

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Physicians Maintain High Standards

Physicians Maintain High Standards

By the time this article goes to print, a lot could change, so there’s no apparent use in guessing what will come of the next Repeal and Replace efforts or what’s happening at Main Justice. Nobody knows. The only certainties from Washington are that there will be change in the payment and insurance models, and that there will be more reports of arrests and prosecutions for alleged fraudulent schemes. Some practitioners express concern, but physician quality and innovation do not have to suffer because of these changes in law because physicians maintain high standards.

Neither Obamacare nor Ryancare nor Trumpcare nor the next iteration will actually change health care. Instead, they guide how health care services are paid. Payment certainly can influence quality, just as who pays for care can perhaps impact patient compliance. But quality care is neither guaranteed nor premised on any particular actual or proposed national structure. These laws do not provide anyone health care. You do, as physicians and nurses and hospitals. The Medical Association began with 30 physicians having a common goal of higher standards in an era with no insurance market at all, nor anesthesia like we know it today. It has always been appropriate for physician entrepreneurship to drive innovation and quality care with it, but there are limits.

The limits have always been there. Whether the changes of today will raise or lower the standard of care within any specialty, or chill entrepreneurship and innovation, is up to each provider. Understanding the legal bounds is often difficult for physicians, and sound legal advice is crucial to success because for every one announced prosecution or indictment there are untold stories of civil corporate misdeeds and aggressive strategies where specialized counsel could have maintained the high standard.

The Department of Justice under Attorney General Jeff Sessions announced in a July 13 news conference that 412 people were charged for participating in health care fraud amounting to more than $1.3 Billion. Pharmacists in Mississippi recently pleaded guilty to fraud charges, with one admitting” that he conspired with others to select compounded medication formulas based on profitability, rather than on effectiveness or patient need,” and that he dispensed medically unnecessary medications. The other pharmacist admitted to “soliciting physicians and other medical professionals to write prescriptions without seeing patients for medically unnecessary compounded medications dispensed by the pharmacy.”

In Virginia, “[a] medical doctor and entrepreneur was sentenced to [10 years] in prison . . . for defrauding his former company’s shareholders and for failing to account for and failing to pay employment taxes.” Ohio-based companies and their executives recently “agreed to pay approximately $19.5 million to resolve allegations pertaining to the submission of false claims for medically unnecessary rehabilitation therapy and hospice services to Medicare,” not that the therapy wasn’t performed or quality care – just that it was excessive and driven by profit over patients. Louisiana clinical psychologists were sentenced for a $25.2 million Medicare fraud scheme involving both unnecessary therapy and therapies never performed. A Florida physician pleaded guilty for his role in pain pill diversion and Medicare fraud scheme. An Alabama federal court enjoined a pharmacy from “distributing adulterated, misbranded and unapproved new drugs in violation of the federal Food, Drug, and Cosmetic Act.” A Tennessee physician settled false claims allegations of distributing and billing Medicare for drugs that had not been FDA-approved. This is all according to the Department of Justice in just the last month. Expect more, whether it’s from General Sessions or a successor.

These headlines should educate rather than frighten the physician entrepreneur with high standards. Each case can educate an intelligent professional that while billing guidelines and corporate laws may have positive or negative impacts on quality, usually indirectly, your standard of care owed to your patient and your business partners does not have to regress. These providers who fell into trouble with the Department of Justice may truly be outliers.

The Virginia “physician and entrepreneur” sentenced in July abused his investors’ trust, stole their money, and provided fraudulent financial statements. That’s an extreme case, perhaps, but consider the same case but where the physician and his investors lost trust in each other purely because of a lack of communication after a series of misunderstandings, and maybe some ego or fear. Perhaps the misunderstandings were fueled by further misunderstandings of medicine by the investors and misunderstandings of business by the physician. But I speculate on a hypothetical ripped from these DOJ headlines. Further, though, consider where the physician did not intend to steal anything but made blindly ignorant mistakes because he failed to ask for help or just maintained business as usual despite corporate changes. Consider the same story but where the financials were not intentionally fraudulent but in error or premised on aggressive billing practices, or an unwillingness to fully engage accountants for their services to pinch pennies. These seemingly more benign circumstances could be all too common, aggravated further by ego and competing visions or interests, and if unchecked and don’t make the DOJ alert then they could also lead to civil lawsuits.

A health care lawyer can answer questions and guide physicians to maintain high standards. The honest physician in need of compounded pharmaceuticals for patients could unwittingly become a co-conspirator like the Mississippi physician. The honest clinician is being driven to cut costs and increase revenue. The honest physician is brought into seemingly prudent arrangements that can turn sour. When a physician goes beyond medicine and into business, retaining legal counsel is critical to maintaining the same high business standards as physician strives for high standards in caring for patients. Specialists and trained sub-specialists are available.

Tom Wood is a partner in the Health Care Practice Group at Burr & Forman LLP and represents health care providers in regulatory and litigation matters. Buff & Forman LLP is a partner with the Medical Association.

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Have You Properly Obtained Informed Consent?

Have You Properly Obtained Informed Consent?

In June, the Pennsylvania Supreme Court issued a controversial opinion holding that a physician had to have face-to-face interaction with the patient to effectively obtain informed consent. This has raised heightened awareness of a physician’s obligations to obtain informed consent from their patients and caused many to evaluate their own practice of obtaining informed consent.

In Shinol v. Toms, a patient brought a medical malpractice case against a neurosurgeon alleging he failed to obtain informed consent. (2017 WL 2655387). The record and testimony at trial established that the physician met with the patient on two occasions prior to surgery to discuss potential complications. The physician testified that he explained the different approaches and options for surgery. The patient also had a telephone conversation with a certified physician assistant (“PA”) who worked for the physician, and just before surgery, the patient met with the PA who obtained her medical history, conducted a physical examination and obtained an executed informed consent form. The form gave the physician permission to perform “‘a resection of recurrent craniopharyngioma.” The patient’s signature acknowledged that she had discussed the advantages and disadvantages of alternative treatments, that the form had been fully explained to her, that she had an opportunity to ask questions, and that she had sufficient information to give her informed consent.

Despite her signature on the consent form, the patient alleged in the lawsuit that she was not fully informed of her options (total versus subtotal resection of a non-malignant brain tumor). According to the patient, if she had been given the option of a subtotal resection, she would have chosen the less aggressive form of surgery.

After the physician received a jury verdict in his favor, the state supreme court declared a mistrial based on an improper jury instruction related to informed consent. The jury had been instructed that it could consider any relevant information it found was communicated to the patient by “any qualified person acting as an assistant to the physician.” In granting a new trial, the Pennsylvania Supreme Court held that the surgeon himself had to have face-to-face conversations with the patient about the risks of surgery in order for him to have properly obtained informed consent from his patient. In other words, evidence of the discussions with the PA could not be considered by the jury in their deliberations of whether informed consent was properly obtained. The court’s opinion was an extension of a previous opinion that held informed consent could not be delegated to a hospital; the physician was responsible for obtaining it.

Similar to Pennsylvania, Alabama courts have found that a hospital and its staff do not have an independent obligation to obtain informed consent from a patient.  Wells v. Storey, 792 So. 2d 1034 (Ala. 1999). However, this does not necessarily equate to the ruling in Shinol. Based on Shinol’s strict interpretation and possible increased scrutiny as a result of the holding, a review of Alabama law on informed consent is warranted.

It is the duty of the physician to inform the patient of the risks and obtain their consent, and if the physician fails to get informed consent, a patient has a cause of action under the Alabama Medical Liability Act (“AMLA”). Historically, the cause of action for a failure to obtain informed consent evolved through the legal theory of battery. The reason being that a person has the “‘right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.'” See Fain v. Smith, 479 So. 2d 1150 (Ala. 1985) (quoting Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (1914)).

The elements of the claim are:

  1. the physician’s failure to inform the patient of all material risks associated with the procedure, and
  2. a showing that a reasonably prudent patient, with all the characteristics of the plaintiff and in the position of the plaintiff, would have declined the procedure had the patient been properly informed by the physician.

The test for determining whether the physician has disclosed all material risks to the patient is “a professional one, i.e. whether the physician had disclosed all the risks which a medical doctor practicing in the same field and in the same community would have disclosed. Expert testimony is required to establish what the practice is in the general community.” Giles v. Brookwood Health Services, 5 So. 3d 533 (Ala. 2008).

In one Alabama case, the physician entered into evidence an informed consent form signed by the patient. Although the patient stated she did not give consent, the court found the forms alone sufficient to dismiss the patient’s claims for assault and battery. There was no discussion in the court’s opinion as to how the form was presented to the patient or whether there was detailed discussion between the patient and the physician.

In another Alabama case involving the scope of consent, the physician obtained an executed form from the patient consenting to a specific procedure but also stating that the physician was authorized to perform “such additional operations/procedures during the course of the above as are considered therapeutically necessary or advisable in the exercise of professional judgment.” The patient alleged that the consent form did not give the physician “carte blanche” to perform any procedure. In this case, the physician had mistakenly removed an ectopic kidney the physician thought was a tumor. The Alabama Supreme Court overturned the lower court’s ruling in favor of the patient on the issue of informed consent and stated that there must be expert testimony as to whether the procedure performed by the physician was reasonable in light of the findings during the surgery.

Although the cases and elements mentioned above require the physician to inform the patient, there are no cases in Alabama that specifically require a face-to-face meeting/encounter with the patient to give informed consent (although this is definitely best practice) and certainly nothing in our case law that says a PA or other qualified health care professional may not explain the risks associated with a procedure. The law requires a physician to exercise that level of reasonable care, skill and diligence as a similarly situated physician and this rule should be followed when it comes to informed consent. It would also be wise to review consent forms to ensure they are not too limited in the grant of consent and ensure you are documenting all discussions with patients about the risks of procedures.

Angie Cameron Smith is a partner at Burr & Forman LLP practicing in the firm’s Health Care Industry Group. Burr & Forman LLP is a partner with the Medical Association.

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What is the ProAssurance Legal Defense Endorsement?

What is the ProAssurance Legal Defense Endorsement?

As a ProAssurance insured, did you know that in addition to medical professional liability coverage your ProAssurance insurance policy also has embedded legal expense coverage for a variety of regulatory risk exposures, certain types of disciplinary proceedings, and other types of covered investigations? It’s called the Legal Defense Endorsement, and it is an automatic part of your policy at no additional cost to you. Generally speaking – and subject to applicable deductibles, policy period aggregates, and other terms and conditions – the Legal Defense Endorsement provides up to $25,000 of legal expense coverage on a per claim basis for a laundry list of “covered investigations” specifically listed in the endorsement.*

Many of the covered investigations are of the regulatory risk variety – like HIPAA, EMTALA, the federal Anti-Kickback and False Claims Act statutes, the Patient Protection and Affordable Care Act, and others. In the event of an investigation or proceeding commenced against you by a governmental or regulatory agency charged with the enforcement of compliance with those laws and regulations, call ProAssurance because your Legal Defense Endorsement could provide up to $25,000 of legal expense coverage to help you navigate the investigative process.

Several other covered investigations relate specifically to Medicare and Medicaid. Again, in the event of an investigation or proceeding commenced against you by any federal or state agency charged with the enforcement of compliance with certain laws regulating Medicare or Medicaid and the rules and regulations related to billing and reimbursement for medical services under those programs, your Legal Defense Endorsement could provide up to $25,000 of coverage for legal expenses you incur as a result of such investigations.

Some of the remaining covered investigations include disciplinary proceedings commenced by the state’s medical licensure commission investigating alleged unprofessional conduct that could result in action being taken against your license to practice medicine. Disciplinary proceedings commenced by a hospital or its medical staff for the purpose of suspending, modifying, restricting, revoking, non-renewing, or terminating your staff privileges are also covered investigations under your Legal Defense Endorsement. Many an unwitting physician has tried to represent him or herself in these types of proceedings, only to later regret not enlisting the assistance of legal counsel.

There are additional covered investigations in the Legal Defense Endorsement not mentioned in this article. If you want to read your Legal Defense Endorsement look for the form titled “Professional Legal Defense Coverage Part” in your current ProAssurance policy. The endorsement itself is about two-and-a-half pages. You can always access your policy documents online through the ProAssurance secure customer portal at

Knowing and understanding how the coverage in your Legal Defense Endorsement works can help you to avoid spending money out of your own pocket on legal expenses that could be covered by the endorsement. More importantly, taking advantage of the coverage in your Legal Defense Endorsement can help you to avoid digging yourself into a deeper hole by attempting to handle a covered investigation on your own without the assistance of legal counsel.

For more information about your Legal Defense Endorsement or if you have questions about the coverage in the endorsement, contact your ProAssurance representative for assistance.

*Please note that legal counsel must be either appointed directly by ProAssurance or if selected by the insured, appointed by ProAssurance with prior written approval before their legal expenses can be covered under the Legal Defense Endorsement.

Posted in: Liability

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Fraud and Abuse Investigations Should Be Taken Very Seriously

Fraud and Abuse Investigations Should Be Taken Very Seriously

Editor’s Note: Burr & Forman LLP is sharing this information as a partner with the Medical Association and would like physicians to understand that the federal government is being vigilant with all health care fraud and abuse investigations. If you have questions concerning the content of this article, please contact Jim Hoover of Burr & Forman LLP at (205) 458-5111 or

For the United States Government, fraud and abuse recovery has an excellent return for each investment dollar spent. According to the Health Care Fraud and Abuse Control (HCFAC) Program Report, released by the Department of Health and Human Services and the Department of Justice on Jan. 18, 2017, the federal government recovered more than $3.3 billion in fraudulent health care claims in Fiscal Year 2016. That means for the last three years for every dollar invested into the program it generated a $5 return.

Established under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the HCFAC Program was designed to identify and prosecute health care fraud and abuse through the coordination of federal, state, and local law enforcement activities. Since its inception in 1997, the program has returned close to $31 billion to the Medicare Trust Funds.

According to the program report, during FY 2016 the Federal Government won or negotiated over $2.5 billion in health care fraud judgments and settlements. Of the $3.3 billion, the Medicare Trust Funds received transfers of approximately $1.7 billion, and $235.2 million in Federal Medicaid money was similarly transferred to the Medicaid program. Over $17.9 billion has been returned by the program to the Medicare Trust Funds for years 2009 through 2016 alone.

Other notable results of the program include, the disclosure that for FY 2016 alone, the DOJ opened 975 new criminal health care fraud investigations that led Federal prosecutors to file criminal charges in 480 cases involving 802 defendants. A total of 658 defendants were convicted of health care fraud-related crimes during the year. On the civil front, in FY 2016 the DOJ opened 930 new civil health care fraud investigations and had 1,422 civil health care fraud matters pending at the end of the fiscal year.

HHS’ Office of Inspector General (HHS-OIG) investigations conducted in 2016 resulted in 765 criminal actions against individuals or entities that allegedly engaged in crimes related to Medicare and Medicaid. There were 690 civil actions, which include false claims and unjust-enrichment lawsuits, civil monetary penalties (CMP) settlements, and administrative recoveries related to provider self-disclosures. HHS-OIG also excluded 3,635 individuals and entities from participation in Medicare, Medicaid, and other federal health care programs. Among these exclusions, some were based on criminal convictions for crimes related to Medicare and Medicaid (1,362) or to other health care programs (262), for patient abuse or neglect (299), or as a result of licensure revocations (1,448).

There were multiple highlighted cases involving physicians. In April 2016, a doctor in Maryland specializing in interventional pain management was sentenced to nine years and three months in prison, followed by three years of supervised release for one count of health care fraud, two counts of making a false statement related to a health care program, one count of obstruction of justice, four counts of wire fraud, and one count of aggravated identity theft. The convictions were based on allegations the doctor submitted claims for nerve block injections when in fact the doctor did not own nor use imaging guidance which was necessary to administer nerve block injections. The doctor also falsely documented patient files to indicate that imaging guidance was used. Finally, when Medicare contractors visited the pain clinic and inquired about the imaging guidance machine, the doctor created a false lease document reflecting the fact that he had leased the machine.

In April 2016, a licensed physician pleaded guilty to health care fraud, admitting that he submitted false claims to Medicare for purported visits with Medicare beneficiaries, including on dates when he was out of the country, for beneficiaries who were deceased on the dates he purportedly treated them, and for services totaling more than 24 hours in one day. He agreed that he submitted approximately $2.4 million in fraudulent claims to Medicare for which he was paid approximately $1.2 million.

In July 2016, following a three-week trial in the Eastern District of New York, a physician was convicted of one count of health care fraud, three counts of making false statements in connection with health care matters, and two counts of money laundering. The evidence at trial showed the defendant, a general surgeon, billed the Medicare program for thousands of wound-debridement and incision-and-drainage surgical procedures that he did not in fact perform. The defendant billed Medicare over $7 million and was paid over $3 million in reimbursement by Medicare.

It is a safe bet to assume based on the above returns government investigations and qui tam/false claims lawsuits are here to stay no matter who is President. To read more about the 2016 results and upcoming initiatives, the program reports are located on the HHS-OIG website .

Jim Hoover is a member of Burr & Forman LLP’s Health Care Industry Group and represents health care providers in healthcare regulatory and litigation matters.

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