Understanding the Grey Area Between Civil and Criminal Law

Some unlucky individuals get caught in the fraud net, not knowing the difference.

All right, readers, this segment is rated “F” for fraud.

It is not for the meek of heart. How many of you have read a newspaper article or seen a TV spot 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 widespread fraud net because counsel doesn’t understand the idiosyncrasies of Medicare regulations.

Healthcare fraud generally exists as one of the following:

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

I have a quick anecdote:

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

In a Local Coverage Determination (LCD), beginning in 2008, Medicare instructed 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 in situ diagnosis for the lesion removed. The final pathology does not change the CPT code of the procedure performed.” This plastic surgeon relied on the Centers for Medicare & Medicaid Services (CMS) regulations and policies, including the Medicare Provider Manual and LCD 2008 – which are published by the government, and upon which he relied.

The doctor hired two criminal attorneys who did not specialize in Medicare. He got charged, and the attorneys convinced him to plead guilty, claiming that he cannot fight the government. And that the government would seize his property if he didn’t settle.

He pleaded guilty to a crime that he did not commit. 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.