private duty providers and federal anti-kickback statute

The owners of a company that owned home health and hospice centers in Texas were convicted and sentenced for their roles in a health care fraud scheme. Their convictions were recently upheld by the U.S. Court of Appeals for the Fifth Circuit [United States v. Mesquias, No. 20-40869 (5th Cir. Mar. 24, 2022)]. The Court said that overwhelming evidence established that the owners committed health care fraud. Here are some examples:

  • The company certified all patients referred to them. After the patients were certified once, Defendants recertified them indefinitely without consideration of their eligibility. An estimated 70% to 85% of the company’s patients were ineligible.
  • A hospice patient had a regular job at Walmart.
  • A home health patient was a boxing instructor at a local gym and was spotted drinking a beer while driving.
  • Medical Directors routinely lied about seeing patients, exaggerated how sick patients were, and made up diagnoses so that patient appeared eligible for hospice and home care, then fabricated “boxes” of medical records to cover their tracks.
  • Employees who questioned the scheme were aggressively confronted by the owners.

In short, the Court concluded that the owners were intimately involved with the fraud.

Here is language from the Court’s decision that providers need to know about:

  • “Defendants also point us to a pair of cases… declining to find that certain claims submitted to Medicare were fraudulent… But in those cases, there was no evidence of fraud beyond (1) after-the-fact expert testimony that the initial determinations of hospice eligibility were inaccurate, and (2) unrelated anecdotes of lax business practices… Both cases recognized that stronger evidence, like facts inconsistent with doctors’ proper exercise of their clinical judgment, could change the outcome… That stronger evidence – of lies, kickbacks, and fabrication – is present here.”
  • “But health care providers cannot immunize themselves from prosecution by cloaking fraud with a doctor’s note.”
  • “What is more compelling: a doctor’s testimony that he lied when certifying a patient or an expert’s testimony that he would have made a different clinical determination than the certifying doctor? Common sense suggests the former, which is in abundance here.”

There are surely lessons for providers in the language of the Court!

©2022 Elizabeth E. Hogue, Esq. All rights reserved.
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