By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On November 2, 2021, a doctor and his wife who had been indicted for their roles in a $1.3 million Medicare fraud scheme asked a New Jersey court to eliminate a bail condition. The doctor argued that the bail condition impeded his ability to practice medicine. Additionally, the doctor indicated that he was seeking to directly address CMS and the Medical Practice’s ability to bill Medicare and Medicaid.
According to the brief, the defendants argued that the court should not get involved in a licensed physician’s medical practice. They argued that this is the role of the state board of medicine.
Background of Their Case.
Both of the defendants, in this case, were arrested and charged in July 2020 for accepting bribes and kickbacks in exchange for ordering unnecessary genetic tests for patients. Genetic testing has turned out to be the latest area of large-scale health care fraud. According to the Department of Justice (DOJ), the scheme billed Medicare for a total of $1.3 million for unnecessary tests. Both of the defendants had been released on $250,000 unsecured personal recognizance bonds.
Is It Really Possible?
In a brief filed with the court, the doctor and his spouse specifically asked the judge to allow them to submit claims to the federal government for reimbursement and to allow the referral of patients to certain other providers.
The defendants argued that because CMS had already suspended both individuals from submitting claims, the court’s bail conditions were unnecessary. The defendants wanted to be able to approach CMS and attempt to have the medical practice’s ability to continue billing the Medicare and Medicaid Programs reinstated. They contended that certain safeguards could be put into place if the practice were allowed to do so. The brief further argued that to the extent, the court had the concern that they would continue to submit fraudulent billing, the following arguments would prevent that:
1. A proposed third-party management company and a third-party billing company, with appropriate peer review, would take over all management and billing responsibilities;
2. CMS would need to agree to reinstate the medical practice with whatever conditions and restrictions it felt necessary before the practice submitted any additional Medicare or Medicaid claims;
3. It is already a condition of their bail that the defendants commit no further crimes.
These defendants’ brief argued that these safeguards should adequately address any concerns of possible future wrongdoing.
Defendants Say Bail Conditions Are Unreasonable For a Working Medical Practice.
The defendants claim the court’s order makes it practically impossible for the doctor to keep his Pennsylvania medical practice open. They claimed that the doctor treats a sizable Medicare and Medicaid patient population. It also argued that, as a licensed physician, he must continue treating his existing patients. Lastly, the defendants argued that they are hoping to eliminate a condition which they claim forces the medical practice to choose between meeting required standards of patient care or violating the court’s bail order.
What Was The Court’s Decision?
These all seemed like some pretty well-thought-out arguments that the defendants made. What did the court finally decide on this matter? Unfortunately, you will have to tune in to this blog at a later date to find out. Hopefully, the answer will not be lost in chaos.
To read about another recent case involving bribery and kickbacks in a healthcare fraud scheme, click here to read one of my prior blogs.
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Pagan, McCord. “Indicted Doc In Kickback Case Seeks CMS Billing Privileges.” Law360. (November 2, 2021). Web.
“Two Scranton area doctors charged in genetic testing bribery and kickback scheme.” PA Homepage. (July 17, 2020). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
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