INTRODUCTION
Let me tell you how to go to jail while practicing dentistry. You are a fine dentist and a great person. Everyone loves you. You are working hard, providing for your family, and really not being paid what you are worth.
Do a few things to set a bad example *back date Jan. work to Dec., so that patients will have a deductible *bill for work not done, so that patients will have funds available to pay for work really done. Turn the billing and books over to someone else. Don’t bother to check, even when income greatly increases. Send in claims for covered procedures, even though the procedure actually done is not covered -direct pulp caps when indirect pulp caps done. Don’t have a x-ray to back up that root canal? Use one from another patient. Does the patient really need that TMJ work? Probably not, but one or two of the symptoms are there, the patient is willing to have it done, and it sure pays well.
Are you doing more procedures of a certain type than your colleagues? Don’t worry about it. The audit people at the insurance company will understand.
Now- fire your book keeper or your dental hygienist or both, really tick off a few patients, and you will soon receive a visit from some people in suits, bearing official looking identification and wearing a slightly concealed firearm.
GOT A PROBLEM? MAKE IT A CRIME.
The fact of the matter is that we live in an age in which the solution to almost every problem is to make it a crime; then create large law enforcement agencies to discover and prosecute the crimes.
The politics of crime
Everyone is against crime; every voter is against crime; and every politician wanting to be elected or reelected is fully aware that every voter is against crime. So, every two years, normally in August or September before the November elections, we have a new crime bill enacted by Congress. Often, they not only create new crimes, they expand old crimes and give law enforcement agencies and prosecutors new and expanded powers.
FEDERAL STATUTES DEALING WITH HEALTH CARE FRAUD
Health Care Fraud -18 U.S.C. 1347
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice– (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
A Scheme to Defraud
The scheme to defraud element . . . is not defined according to a technical standard. The standard is a Areflection of moral uprightness, of fundamental honesty’ fair play and right dealing in the general and business life of members of society.
False Statements Relating to Health Care Matters – 18 U.S.C. 1035
(a) Whoever, in any matter involving a health care benefit program, knowingly and willfully–
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or
(2) makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined her this title or imprisoned not more than 5 years or both. (b) As used in this section, the term Ahealth care benefit program has the meaning given such term in section 24(b) of this title.
Theft or Embezzlement in Connection with Health Care -18 U.S.C. 669 (a) Whoever knowingly and willfully embezzles, steals, or otherwise without authority converts to the use of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds, securities, premiums, credits, property, or other assets of a health care benefit program, shall be fined under this title or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100 the defendant shall be fined under this title or imprisoned not more than one year or both (b) As used in this section, the term Ahealth care benefit program, has the meaning given such term in section 24(b) of this
Acts Involving Federal Health Care Programs 42 U.S.C. 1320a-7a(3) (a) Making or causing to be made false statements or representations Whoever– (3) having knowledge of the occurrence of any event affecting (A) his initial or continued right to any such benefit or payment, or (B) the initial or continued right to any such benefit or payment of any other individual in whose behalf he has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.
False Claims 18 U.S.C. 287
Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.
Mail Fraud 18 U.S.C. 1341
Whoever, having devised . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses . . . . for the purposes of executing such scheme or artifice . . . places in any post office or authorized depository for mail matter, any matter. . . to be . . delivered by the Postal Service. . Shall be imprisoned not more than five years. . .
Willful Blindness – Deliberate Ignorance
Some people believe that what they don’t know won’t hurt them. Unfortunately, it isn’t necessarily so. There is in the law a concept referred to as Awillful blindness or Adeliberate ignorance that can get you convicted of a crime just as if you knew all about it and did it yourself. If you are aware of facts or circumstances that create a high probability that there is a violation of the law occurring in your office, you cannot deliberately close your eyes to what is obvious, and thereby escape responsibility. For example, if your income in the practice substantially increased, but you are not seeing that many additional patients, and you become aware that some statements are not quite accurate, you cannot say to yourself, Something is going on, but if I don’t know just what it is, I can’t be hurt.
RESPONDING TO AN INVESTIGATION
How will you know that you are the subject of an investigation?
A. A call from Fraud Prevention department of an insurance company.
B. A visit from TBI, FBI, OIG-HHS, often carrying a subpoena for your records.
C. A team of law enforcement officers, serving a search warrant.
What do you do in response?
What you do depends on which of these occurs first. In any event, you simply cannot ignore the issue and hope that it will go away.
(1) If you receive a call from an insurance company or visit from a law enforcement agency, be courteous, but suggest that you must have some time to check into the matter and obtain some advice before you respond.
(2) Contact an attorney whose practice involves health care fraud investigations and follow his or her advice.
(3) Do not consent to an interview until you have had the benefit of the advice of counsel.
(4) Inform employees that an inquiry is being conducted and that they have certain rights and responsibilities. {See Notice to Employees attached}
(5) Make a complete copy of all records and documents subpoenaed.
(6) Authorize counsel to conduct a complete internal investigation, to determine the facts and circumstances which have resulted in the inquiry.
PREVENTION IS THE BEST CURE – THE FLUORIDE OF THE LAW
All of the matters covered above are important, even essential, if you are investigated by private companies or law enforcement agencies. The fact is, however, that the best course you can follow is to avoid any practice which will tend you bring you within Aharm’s way. The Rules:
(1) Never misrepresent any matter in your personal or professional records and documents and you be certain that no one in your office does so.
(2) Identify areas in which mistakes and other problems could readily occur.
(3) Establish written policies regarding accuracy and completeness of all record keeping and billing.
(4) Have periodic meetings with those primarily involved in record keeping and billing to identify any problems and/or concerns.
(5) Adopt a ACaesar’s wife approach to every issue that might involve honesty and accuracy.
(6) Deal with errors and omissions in a consistent and firm manner. Unlimited tolerance may equate with Awillful blindness.
CONCLUSION
The line between mistakes and crimes is often a matter of intent. Sometimes, those charged with the responsibility of investigating and prosecuting crimes become zealous and cynical. When that happens, your mistakes become crimes in their eyes. Innocent people are prosecuted and sometimes convicted. In today’s atmosphere, it behooves all of us to exercise caution and avoid the pitfalls of practice that can lead to the embarrassment, the expense and the trauma of a health care fraud investigation.