Insurance Audits: An Eye-Opening Experience for the Unprepared Health Professional

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Guests dropping by unannounced can be a stressful experience for any surprised host. Many would agree that the worst unannounced visitor of all, is the insurance plan auditor. This unannounced “guest” is looking to scrutinize your office policies, patient records, and billing files to uncover evidence of practices worthy of disciplinary action or large monetary recoveries.

Optometrists and ophthalmologists have very different audit experiences in comparison to other types of health care professionals. Third party payers, typically Vision Service Plan (VSP), perform the audits of vision care practices. Third party payers have recently increased the frequency of such audits.

Although in this blog we are speaking in reference to one particular plan, Vision Service Plan, these comments apply to all health insurers and plans and not just the one. Below is what you need to know to prepare yourself and your practice.

Two Different Types of Audits.

Like most health care audits, the objective of audits is to identify lapses in compliance with industry rules and regulations in areas such as billing, filing, and general business practices. Unlike for some governmental payors, vision plans will commonly perform routine audits to ensure quality control as well as compliance with billing procedures and documentation requirements. Eventually the auditing company will review each doctor about once every five years, as suggested by the National Committee for Quality Assurance Standards. Rules change frequently without warning, so it’s critical to stay up to date on the latest compliance rules and regulations, as well as any changes or amendments to your contracts.

Audits can take place in two very distinct formats. The most common audit is the routine quality control audit. A practitioner will be asked to submit a small number of randomly selected patient records. These records will be reviewed by the Quality Control Unit (or similar division) that will issue a report of the audit results. If issues are noted in the audit, the results may require the health provider to propose and submit a corrective action plan (CAP) identifying the necessary corrections required to address issues noted in the audit. These audits can be expected from time to time for just about all practicing optometrists and ophthalmologists.

The second type of audit is typically ordered when major patterns of inconsistency or billing irregularities are noted in an initial quality control audit. A “targeted audit” may be performed by the plan’s “special investigations unit/SIU” or similar unit, and is almost always unannounced. The SIU investigator will usually show up at an office and request on the average 30 to 50 records. These records are not randomly selected, but rather, are related to one or more areas of interest or irregularity. These audits are conducted to obtain evidence of suspected violations when it is already believed that rules are being broken.

How to Avoid Negative Audit Results.

A targeted audit can be triggered by a multitude of red flags. Disgruntled present or former employees who make a complaint, patients who make a complaint, or even a complaint made by a competitor can lead to a surprise in-office visit from an investigator. In addition, many questionable billing patterns noted by an auditor during a routine quality control audit can initiate further investigation.

Billing for services and products at a rate higher than surrounding area doctors, or at a rate higher than you traditionally have charged, are both red flags. Billing for a comprehensive eye exam and a routine exam on or near the same date will also stick out as potential fraud. Billing for more expensive products than you have in inventory may also cause you problems.

Auditors, in both a quality control audit and targeted audit, focus their scrutiny on the history, examinations, and medical decision-making parts of a patient record. For a doctor, it is beneficial to clearly and completely record the reason for a patient’s visit, their symptoms, and past health history.

Verify that you have recorded any and all tests and exams that were performed during the appointment. Auditors will argue that if you didn’t write it down, it didn’t happen. From our experience, the most poorly documented section of a patient’s record is the medical decision at the conclusion of an exam. It is very crucial to provide detailed statements in addition to a final diagnosis at the time of the patients visit. This will show the auditor you gave sufficient consideration during the exam to conclude a diagnosis. The more documentation you have the better and the more defensible those records are in an audit. The number one reason an audit may have a negative outcome is due to missing or insufficient documentation.

The Auditor is Knocking at the Door. Now What?

During an audit, the single most important action you can take is to agreeably provide the auditor with all complete records related to their requests. The less you argue and defend yourself, the better. A common mistake doctors make during an audit is not providing copies of all relevant information and keeping an exact copy for themselves. Relevant information includes any and all information you have on a patient related to the services and materials provided. Do not make assumptions when it comes to what information the auditor needs. Give the auditor copies of everything.

If you cannot locate necessary files required for the investigation, ask the auditor for a time extension and put this permission in writing. Do your best to locate these missing files. Patient charts you cannot find during an unannounced audit will be considered over billed. Also, ask the auditor for a copy of the list of patient records that were audited. Keeping track of what you provided the auditor is also important in legally protecting yourself.

The Aftermath of an Audit: What to Expect.

The results of your audit will be mailed to you in a letter. The letter may state that you passsed the audit with flying colors and do not owe the plan anything. The letter may ask for a refund of amounts determined to have been overpaid. The letter may give notice that the plan is terminating your provider agreement. The letter may state both of the immediately foregoing, requesting repayment and terminating your contract.

In any event, we strongly recommend that you review any such audit results immediately with an experienced health care lawyer.

You may be offered the option of a consent decree or a corrective action plan (CAP). The CAP was discussed above and is also rather self-explanatory. In a consent decree, you may be given a probationary time period in which the plan may decide to terminate you or not. In this time frame, you are also eligible for additional audits billable to you.

The letter will also explain the process of appealing the audit’s findings under the section called “Fair Hearing Plan” or “Hearing Rights.” You will only have a short period of time to file an appeal should you so desire, usually 30 days or less. During this process, if the audit letter demands a repayment, the plan will usually immediately start withholding these from any funds the plan owes you.

An appeal will be conducted through an internal peer review hearing before a panel appointed by the plan. Often this will be called the “Quality Control Panel” or the “Ad Hoc Committee” or some similar name. Records of the audit will be reviewed once again and you will have the opportunity to provide evidence and your own records in support of your defense. The board, consisting of three individuals selected by the plan, has the authority to overrule the initial ruling. They may revise the restitution owed, repeal the termination, or initiate another form of disciplinary punishment. It is extremely difficult to convince this panel for an appeal. Should you lose an appeal, you still may seek arbitration or legal action in court.

Click here to read one of my prior blogs on the audit process and its repercussions.

Don’t Wait Until It’s Too Late.

Ideally, it is best to have an attorney familiar with you and your business available before any audit is initiated. An experienced health law attorney armed with knowledge of industry laws can be critical in successfully surviving the audit process. If the action taken against you is considered to be adverse “peer review action” taken by a health care plan, it may be reported to the National Practitioner Data Bank (NPDB). If so, this remains on your professional file for life (actually only 50 years). You may also be reported to your state the board of optometry or licensing agency, which can lead to disciplinary action against your license. Securing a health law attorney who is familiar with the process is invaluable when considering the potential harm a negative insurance plan audit can cause.

Contact Health Law Attorneys Experienced in Handling Payer Audits, Investigations and other Legal Proceedings.

The Health Law Firm’s attorneys routinely represent ophthalmologists, optometrists or other health professionals in payer investigations, audits and recovery actions. We also represent optometrists, ophthalmologists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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.

KeyWords: Audit, Office Billing, Ophthalmologist, Ophthalmology, Optometry, Vision Service Plan, Vision Service Plan Audit, Audits, corrective action plan, defense attorney, defense lawyer, ophthalmologist, ophthalmologist attorney, ophthalmologist audit, ophthalmologist lawyer, Optometrist, optometrist attorney, optometrist audit, optometrist lawyer, Optometry, routine quality control audit, targeted audit, vision law, Vision Service Plan (VSP), Vision Service Plan Audit, VSP audit, VSP auditor, VSP defense attorney, VSP defense lawyer

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Optometrists and Opticians Should Carry Insurance That Covers Complaints Against Their Professional Licenses

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Health care professionals, especially optometrists and opticians, sometimes have difficulty hiring an experienced attorney in Florida to defend them after they receive a complaint regarding their license from the Florida Department of Health (DOH). To me, this is the main reason that they should be sure that their professional liability insurance policy covers the payment of all legal defense fees and expenses for a complaint against their license. They should also be certain that it provides at least $25,000 of coverage as $5,000 or $10,000 in coverage just isn’t sufficient in most cases.

For example, one insurer that we deal with frequently that does provide coverage for license complaints is Healthcare Providers Service Organization (HPSO) Insurance. Although we deal with several different insurers which cover professional licensure defense costs for their insureds, HPSO is probably the one we deal with most often. It provides good coverage for professional licensure defense, even if the complaint is completely unrelated to any civil law suit or claim for malpractice.

Legal Fees are Expensive, Having Good Insurance Helps.

The health care professionals who are covered by HPSO Insurance have excellent coverage. HPSO Insurance does provide professional liability coverage that protects in the event of a lawsuit or negligence claim against you. However, much more often than a claim for damages, the health care professional receives a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment, a complaint due to a breach of medical records confidentiality or Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action.

HPSO provides great coverage for all of these situations. For example, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation at depositions. HPSO reimburses up to $25,000 in legal fees and expenses for your defense in a DOH or Agency for Health Care Administration (AHCA) notice of investigation or complaint. HPSO also reimburses up to $25,000 in legal fees and expenses for legal representation in defense of a complaint or investigation regarding breach of medical confidentiality.

If you are an optometrist, optician, pharmacist, massage therapist, mental health counselor or social worker, physician assistant, optometrists, own an assisted living facility (ALF), or you are one of the many other types of health care professionals who HPSO insures, it should be fairly easy to find experienced health lawyers to represent you in Florida.

The Health Law Firm and its attorneys, routinely represent licensed health care professionals, interns and students in all types of administrative investigations and hearings and in defending lawsuits and other actions that have been filed. We also represent health facilities in license defense and administrative hearings. We offer representation throughout Florida, and also occasionally represent professionals in other states, as well. At The Health Law Firm, we accept HPSO Insurance assignments.

Don’t Wait Until It’s Too Late, Get Insurance Coverage Now!

It is very important for every health care professional to have insurance that covers any investigation, complaint or administrative hearing that might be filed or opened against your license. Many people make the mistake of assuming they are covered for this by an employer, but that is not the case. If your employer contradicts this, request a statement in writing that your employer will pay for your legal defense for any such matter arising during your time of employment.

What we typically see, especially in the case of a hospital employee, nursing home employee, pharmacy employee or corporate employee, is that the employer is the one who terminates the employee and then proceeds to file a complaint with the DOH. The DOH then opens an investigation against the health care professional. The employer is not going to pay your legal defense costs if the employer is the one that reported you!

You may very well end up out of work, out of money and face an investigation and complaint that could terminate your professional license and career. You should never take this chance. Insurance such as HPSO Insurance is inexpensive and reliable, buy it while you can afford it. After the actions have occurred, it is too late.

Talk to an Experienced Health Law Attorney if an Investigator Contacts You.

You should immediately contact an experienced health law attorney if you are contacted or visited by any investigator, or if you receive a letter advising you that an investigation has been opened against you. Call an experienced health law attorney immediately before you speak with an investigator or provide any documents or statements of any kind.

You cannot and should not seek “legal advice” on what to do from the investigator, DOH employee, professional board or from any attorney representing any of them. They are not on your side, you should definitely not take any advice from them.

Thoroughly Read and Understand Your Insurance Policy.

When you have good insurance, it will pay for your legal expenses from the very beginning. However, beware of cheap insurance policies from professional associations that do not provide any coverage for disciplinary complaints and licensure investigations. Always double check to be sure this is covered and get it in writing as an extra precaution. With some insurance companies, you have to pay an extra premium to obtain this coverage. With some insurers, they do not offer it and you have to purchase a completely separate policy to cover this. It is worth it and will save you money! Do it!

For more information on HPSO insurance and how The Health Law Firm can assist you, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies, nurse practitioners, lab technicians, occupational therapists, physical therapists, social workers, physician assistants, psychologists and other health professionals in many different legal matters.

Services we provide include representation before your professional board in DOH investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company. We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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.

KeyWords: administrative attorney, administrative complaint, administrative hearings, administrative lawyer, Agency for Health Care Administration (AHCA) investigation, AHCA complaint, defense attorney, defense lawyer, DOH investigation, breach of medical records confidentiality, HIPAA complaint, administrative investigations, legal representation for optometrists, legal representation for health care professionals, experienced health attorney Florida, experienced health lawyer Florida, Florida defense attorney, Florida Department of Health (DOH), Florida license defense, health facilities, health care professionals, Healthcare Providers Service Organization (HPSO) Insurance, professional liability insurance, health law, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Florida Ophthalmologist Involved in Senate Bribery Case Defends Medicare Billings

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On February 12, 2016, a Florida ophthalmologist accused of bribing his friend, U.S. Sen. Robert Menendez, said that separate allegations against him for Medicare fraud should be dismissed. Dr. Salomen Melgen was accused of using one single-dose vial of the wet macular degeneration drug Lucentis on multiple patients at his clinic called Vitreo-Retinal Consultants. He then allegedly billed Medicare as if he used one vial per patient resulting in charges that he was defrauding the government of about $105 million. Dr. Melgen claims this practice was legal stating: “By suggesting that multi-dosing is improper, the indictment is completely at odds with eminently defensible and extensively litigated interpretations of multi-dosing Medicare policy.”

To read more on Dr. Melgen’s case, click here.

Multi-Dosing Allegations.

Dr. Melgen is accused of improperly muli-dosing with the drug Lucentis and then submitting false claims to the government. The Medicare administrative contractor (MAC) for Florida, First Coast Service Options, Inc.(First Coast), alleges that Dr. Melgen’s actions were improper stating: “As approved by the FDA, and as required in the First Coast LCD [local coverage determination] for Lucentis, each vial is to be used for the treatment of a single eye only. Any excess fluid or overfill is to be discarded.”

However, First Coast later made a statement in a clarification to its LCD for Lucentis which said, “that physicians may choose to multi-dose Lucentis by administering a ‘single-use vial’ of Lucentis for three patients,” the motion states.

Medicare Charges “At Cost”.

According to the motion, the indictment in April makes multiple legally incorrect assertions about how Dr. Melgen administered and billed for the use of Lucentis. Physicians are allowed to charge Medicare as much as they want, not necessarily just “at-cost.” However, Medicare does not have to reimburse that full amount. To read more about his indictment, click here.

To read a prior blog I wrote on a similar case, click here.

Denying the Allegations.

Dr. Melgen has pled not guilty and rejects the government’s claims. In his motion to dismiss it states, “the Centers for Medicare & Medicaid Services (CMS) was obliged to pay Dr. Melgen for each unit of Lucentis that he administered, regardless of exactly what it cost him. Therefore, contrary to the indictment’s allegations, Dr. Melgen did not and could not defraud Medicare by submitting fraudulent Lucentis invoices for amounts that substantially exceeded his actual cost.”

This actually could be a good argument and he may have a good defense for any claims he submitted before First Coast published its clarifications.

Dr. Melgen reached an $18 million bond agreement in July over the charges.

To read the motion for dismissal, click here.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620.

Sources:

Kass, Dani. “Doctor Tied To Sen. Bribery Case Defends Medicare Billing.” Law360. (February 17, 2016). Web.

Iannelli, Jerry. “INFAMOUS EYE DOCTOR SALOMON MELGEN LEFT PATIENTS BLIND, LAWSUIT SAYS.” New Times Broward Palm Beach. (January 24, 2016). 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. The Health Law Firm has a national practice. Visit our website at: www.TheHealthLawFirm.com . The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, FL 32714, Telephone: (407) 331-6620.

KeyWords: Medicare billing, Medicare fraud, improper billing, submitting false claims, False Claims Act (FCA), Centers for Medicare & Medicaid Services (CMS), multi-dosing, multi-dosing Medicare policy, Medicare reimbursements, motion for dismissal, Medicare investigations, Medicare audits, compliance, Medicare defense lawyer, false claims defense lawyer, fraud defense lawyer, health care attorney, health law attorney, Florida health law attorney, health law, The Health Law Firm

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Helpful Tips For Avoiding HIPAA Violations on Social Media

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Digital mediums are a popular great way to connect, but they can also pose a great risk for Health Insurance Portability And Accountability (HIPAA) violations. When it comes to guarding against accidental revelations of patient identity and sensitive information, Ophthalmologists, Optometrists and all medical staff should adopt various measures to protect themselves.

In this day and age, almost everyone has some type of social media platform. Don’t end up like many health care providers who find themselves chastised, fined and fired over HIPAA violations due to common mistakes.

Protect Yourself and Your Practice.

All ophthalmologists, optometrists and medical staff should take the following steps to protect against HIPAA violations due to social media:

-Keep personal social media accounts separate from professional accounts;

-Avoid requesting or accepting friend requests from patients or professional associations;

-Be aware that even posts that have been deleted can still exist in cyberspace;

-Be aware that posts on a private personal page can be accessed by users who are not friends or followers;

-HIPAA lists 18 identifiers including photos, neighborhoods, birth dates and vehicle identifiers. All of these must stay private. Small details can reveal patient identity, especially in small communities;

-Even if a patient posts personal medical information, no health care professional can re- post any information;

-You do not have the right to take or post any image of your patients;

-You are required to report any breach of privacy committed by any fellow employee.

For more tips on social media for health care providers, click here.

Guidelines for Appropriate use of Social Media and Social Networking.

Ophthalmologists and Optometrists are discouraged from interacting with current or past patients on personal social networking sites. Online interaction with patients should only occur when discussing the patient’s medical treatment within the physician-patient relationship. These interactions should never occur on personal social networking or social media websites.

Patient privacy must be protected at all times, especially on social media and social networking websites. Breaches in patient confidentiality could be harmful to the patient and in violation of federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996 and applicable state privacy laws.

Failure to Comply With HIPAA Can Result in Both Civil and Criminal Penalties.

There has been an increase in penalties regarding HIPAA violations. With an increase in the popularity and availability of social media platforms, also comes an increase in potential privacy violations. To read a previous blog I wrote on this, click here.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent ophthalmologists, optometrists and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Veatch, Kyna. “A Checklist For Avoiding HIPAA Violations.” Law360. (January 8, 2016). Web.

Martin, Jonathan. “Tips on social media for health care providers.” Law360. (January 8, 2016). 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.

KeyWords: Health Insurance Portability and Accountability Act (HIPAA), HIPAA Omnibus Rule, HIPAA compliance, data security, protected health information (PHI), Patient privacy, U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), patient rights, HIPAA compliance audit, HIPAA violation, penalties for HIPAA violation, criminal penalties for HIPAA violation, civil penalties for HIPAA violation, HIPAA compliance, privacy, defense attorney, defense lawyer, Medicare exclusion, HIPAA defense attorney, HIPAA violation help, American Recovery and Reinvestment Act of 2009 (ARRA), Department of Justice (DOJ), HIPAA attorney, HIPAA lawyer, compliance plans, health law firm, The Health Law

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2016 The Health Law Firm. All rights reserved.

OIG Flags Questionable Billing for Ophthalmology Services Totaling $171 Million in Medicare Pay-Outs to Various Providers

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Department of Health and Human Services Office of Inspector General (OIG) flagged various Medicare providers as having questionable billing practices for ophthalmology services rendered in 2012. The services billed for and flagged as questionable include the diagnosis and treatment of wet age-related macular degeneration (wet AMD) and complex cataract surgery. Medicare paid a total of $171 million for the services now warranting further scrutiny according to OIG.

Questionable Does Not Necessarily Mean Improper.

OIG acknowledged that flags for questionable billing do not necessarily mean impropriety has occurred. OIG utilizes nine measures when considering potential indicators of fraud and abuse. If questionable billing is demonstrated on at least one of these nine measures, then it is flagged for further review.

In 2012, Medicare paid $6.7 billion to 44,960 providers for wet AMD and cataract-related services. Approximately 4% of those providers, or 1,726, demonstrated questionable billing on at least one of the nine measures. OIG reported that another 4% of that number of providers exceeded the threshold for two measures and nine providers exceeded thresholds for three, four or five measures.

While these findings do not conclusively establish the commission of fraud, OIG has advised the Centers for Medicare and Medicaid Services (CMS) to review the identified healthcare providers and take action if necessary.

To read one of our previous blog posts on the OIG increasingly issuing investigative subpoenas to ophthalmologists, click here.

Unusually High Levels of Billing for a Specific Service May Indicate Fraud.

While only about 15% of providers demonstrated questionable billing for wet AMD treatments, Medicare payments for these services totaled more than half ($91 million) of all payments associated with questionable billing. Many providers were also indicated in questionable billing for complex cataract surgery. However, the total Medicare payments for the cataract procedures at $39 million was much lower than that of wet AMD treatments.

OIG identified 355 providers with unusually high billing related to the diagnosis of wet AMD costing Medicare a total of $23 million. Another 586 providers were reported with unusually high billing for ophthalmology claims using certain modifiers totaling $18 million in Medicare payments.

The OIG observed that when providers bill for certain procedures at unusually higher levels than their peers it may be because such services are not medically necessary, thereby indicating possible fraudulent activity. On the other hand, our experience in defending ophthalmologists and optometrists has shown that it might also just be a case of a certain physician being the best around in performing that procedure.

To read one of our previous blog posts regarding billing for the performance of unnecessary ophthalmology treatments and services, click here.

More Troubling Trends in OIG’s Report.

According to OIG’s report, and in comparison to the national average of 2.6%, seven metropolitan areas had at least double the percentage of Medicare payments associated with the measures of questionable billing. Miami, Florida made the list as one of the seven areas, along with: Huntington, West Virginia; Vineland, New Jersey; Salisbury, Maryland; Grand Rapids, Michigan; Fresno, California; and Cincinnati, Ohio.

Furthermore, OIG indicated that $2 million paid by Medicare for ophthalmology services performed, was paid to 821 various providers that were not listed as eye specialists in government databases. OIG asserts that this calls into question the quality and appropriateness of services rendered by these individuals if, in fact, they were not properly trained to perform such services.

To read the full report by the OIG, click here.

Comments?

Are you an ophthalmologist who has been flagged by OIG for questionable billing? Please leave any thoughtful comments below.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent ophthalmologists and other healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Keywords: OIG defense attorney, OIG flagged for questionable billing, ophthalmologists flagged by OIG, billing Medicare for ophthalmology services, Medicare audits defense lawyer, OIG report on questionable billing, high levels of billing for wet AMD treatments, OIG scrutiny defense, flagged by OIG for exceeding threshold of measures, Medicare defense attorney, ophthalmologist defense attorney, health law attorney, eye specialist defense lawyer, potential indicators of fraud, Medicare fraud defense lawyer, Medicare payment flags, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Eye Doctor Faces Maximum of 200 Years in Prison for Medicare Fraud

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A central Florida ophthalmologist with offices in Windermere and Leesburg, was found guilty of 20 counts of Medicare fraud on September 29th. He faces a maximum of ten years in prison for each count. David Ming Pon, M.D., was convicted of health care fraud this past Tuesday by a Jacksonville federal jury. Following trial, Dr. Pon was turned over to the United States Marshals Service. He will remain in custody as he awaits his sentencing which is currently scheduled for March 14, 2016.

To read my previous blog posts as I followed this story from indictment to conviction, click here.

The Egregious Nature of the Crime.

Among allegations of defrauding Medicare out of millions of dollars, Dr. Pon is also said by the prosecution to have intentionally misdiagnosed and subsequently treated (unnecessarily) hundreds of patients. Dr. Pon provided several patients (most elderly) with phony diagnoses of macular degeneration, an eye disease that gradually progresses to vision loss. He then performed unnecessary laser treatments on his patients and billed Medicare for the services.

While the laser was set on low so as not to have caused any permanent damage per witness testimony, Dr. Pon was also found to have injected some of his patients with dangerous dyes that did have the potential to cause serious side effects.

To read the full press release from the FBI, click here.

Paying Back the Government.

Aside from the criminal charges, the federal government has filed suit against Dr. Pon in an effort to seize his assets as restitution for the Medicare funds he fraudulently acquired. Dr. Pon owns several pieces of property in the central Florida area which are vulnerable to government seizure per federal law.

Section 981, 18 United States Code details property subject to civil forfeiture. More specifically, section 981(a)(2)(A) states:

“For purposes of paragraph (1), the term “proceeds” is defined as follows:
(A) In cases involving illegal goods, illegal services, unlawful activities, and telemarketing and health care fraud schemes, the term “proceeds” means property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net gain or profit realized from the offense.”

For more information on civil forfeiture of property, read one of our previous blog posts here.


No Small Matter.

Health care fraud is a big deal resulting in big consequences. If you find yourself facing allegations of Medicare or Medicaid fraud, immediately contact an experienced health attorney to advise you of your rights.

Furthermore, if you suspect Medicare or Medicaid fraud, do not hesitate to contact a knowledgeable attorney who can assist you in reporting the illegal activity.

To read one of my previous blogs on another recent health care fraud scheme, click here.

Tips Regarding Settling Medicare Fraud Cases.

Often it is possible to settle allegations of Medicare fraud by agreeing to pay civil monetary penalties and fines. If given such an opportunity, the Medicare provider should consider whether it is worth the risk of facing decades in prison. After all, you can’t spend your millions if you’re in prison for life.

The Health Law Firm has been successful in negotiating such deals with the United States Attorneys’ Offices.

Comments?

Have you ever been a victim or suspect of Medicare fraud? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and other Legal Proceedings.

The attorneys of The Health Law Firm represent retina surgeons and ophthalmologists on many different legal issues.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Health Care Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (ALFs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions. To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Stutzman, Rene. “Eye Doctor Convicted of Medicare Fraud.” Local News: Orlando Sentinel. 30 Sept. 2015: B1-B3. Print.

United States Attorney’s Office, Middle District of Florida. “Federal Jury Finds Doctor Guilty on 20 Counts of Health Care Fraud.” Jacksonville Division: The FBI Federal Bureau of Investigation. Press Release. 29 Sept. 2015. Web. 1 Oct. 2015.

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.


Keywords:
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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Windermere Eye Doctor Faces Eye Opening Prison Term in $7M Medicare Fraud Case

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Windermere ophthalmologist charged with intentionally misdiagnosing patients and performing unnecessary surgery headed for trial in Federal Court on Tuesday. According to prosecutors, Dr. David Ming Pon, with Advanced Retina Eye Institute in Leesburg and Orlando, is charged with 20 counts of Medicare fraud.

This case is being tried in the U.S. District Court for the Middle District of Florida.


Fake Treatments for Patients.

Dr. Pon is a retina surgeon as well as a board certified ophthalmologist. Prosecutors say he lied to 250 patients, telling them they had a degenerative eye disease, then performed unnecessary laser eye treatments. This prompted Medicare to pay more than $7 million allegedly for medical treatment that was not necessary. One of his former patients, James Allen, told the Orlando Sentinel that Dr. Pon gave him monthly laser treatments for 14 years. After switching eye doctors he discovered that he didn’t have macular degeneration at all, the medical condition for which he was being treated by Dr. Pon. “Each of those treatments was a fake,” Allen is reported to have said. To find out more about Medicare fraud and the consequences, click here to read a past blog on this.

The Doctor is in.

Pon is still in practice and still seeing patients despite a federal grand jury indictment in April 2014. He was jailed but released several months later.

Federal Agents seized paperwork from his office three years ago; when Pon allegedly refused to repay a $7 million demand for repayment, Federal authorities took the case to a federal grand jury. The trial is expected to last three weeks. To read more about this case, click here.

Pon could be facing more than 100 years in prison. For more information on Dr. Pon, visit the Florida Board of Medicine website here.  To read a press release the Department of Justice released about National Medicare Fraud, click here.


Comments?

Have you ever been a victim or suspect of Medicaid fraud? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and other Legal Proceedings.

The attorneys of The Health Law Firm represent retina surgeons and ophthalmologists on many different legal issues.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Health Care Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (ALFs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions. To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Stutzman, Rene. “Windermere eye doctor headed for trial in $7M Medicare fraud case.”
(September 6, 2015). Orlando Sentinel. Print.

“Windermere doctor to go on trial Tuesday on Medicare fraud charges.” (September 7, 2015). WFTV. From: http://www.wftv.com/news/news/local/windermere-doctor-go-trial-tuesday-medicare-fraud-/nnZff/

Washington Examiner. “Florida Eye Doctor Held Without Bail in Fraud Case.” Associated Press. (May 6, 2014). From: http://www.washingtonexaminer.com/florida-eye-doctor-held-without-bail-in-fraud-case/article/2548119

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.

KeyWords: Medicare fraud defense lawyer, Medicare fraud defense attorney, Medicare investigation, Medicare audit, defense lawyer, defense counsel, Medicare False Claims Act lawyer, fraudulent claims, criminal defense, retina surgeon attorney, ophthalmologist legal counsel defense lawyer, macular degeneration fraud, health law criminal defense, ZPIC audit attorney, RAC audit lawyer, health law criminal representation, criminal representation, OIG Medicare investigation, Medicare False Claims Act attorney, Medicare overpayment demand, overbill Medicare, Medicare fraud, Medicare Investigation, overbill Medicare, health care fraud, Florida Attorney General, The Health Law Firm

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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.