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Summer 2015


Has Someone Gotten In Trouble For Doing That? Lessons for Anesthesia Groups from Real Cases

Vicky Mykowiac, Esq.
Principal, Myckowiak Associates, P.C., Detroit, MI

Anesthesia billing is complex and riddled with a minefield of potential compliance issues. Thoughtful anesthesia groups have effective compliance programs in place, designed to minimize the risk of government allegations of fraud and abuse. When crafting and maintaining an effective billing compliance program it is helpful to understand which areas of anesthesia billing have been the subject of legal action. Moreover, like it or not, when a compliance officer is able to point to specific instances in which anesthesia providers have been subject to criminal or civil penalties, s/he is more able to obtain the highest level of compliance from otherwise recalcitrant providers. This article will provide information on where to find details on legal cases impacting anesthesia providers and discuss strategies for implementing the lessons that can be learned from a thorough understanding of the cases.

How to Find the Cases

The government understands the value of publicizing the cases it brings against providers and uses a number of venues to report on its successful legal actions. Anesthesia providers can also learn about cases of interest from their specialty societies and the media.

The Office of Inspector General

The Office of Inspector General for the Department of Health and Human Services (OIG) was established in 1976 to fight waste, fraud and abuse in Medicare, Medicaid and more than 100 other HHS programs. Currently there are approximately 1,600 OIG employees dedicating a majority of their time to oversight of Medicare and Medicaid through a nationwide network of audits, investigations and evaluations to assist in the development of cases for criminal, civil and administrative enforcement. See http://oig.hhs.gov/about-oig/about-us/index.asp.

The OIG has an easily navigable website (http://oig.hhs.gov/) that contains information on OIG focus areas and legal actions against providers including:

  • Criminal and civil enforcement actions: The OIG posts information on its criminal and civil enforcement actions often related to its work as part of the Medicare Fraud Strike Force and the Health Care Fraud Prevention and Enforcement Action Team. In addition to information on current actions there is an archive going back to 2003. See http://oig.hhs.gov/about-oig/about-us/index.asp.
  • State enforcement actions: The OIG posts information on cases handled by state Medicaid Fraud Control Units that operate in 49 States and the District of Columbia. In addition to information on current actions there is an archive going back to 2010. See http://oig.hhs.gov/fraud/enforcement/state/index.asp.
  • Civil monetary penalties and affirmative exclusions: The OIG posts information about providers who resolved cases in which the OIG sought civil monetary penalties, assessments and/or exclusions based on allegations of fraud and abuse. Please note that these cases are generally resolved through a settlement agreement with the provider denying liability.  In addition to information on current cases there is an archive going back to 2003. See http://oig.hhs.gov/fraud/enforcement/cmp/false_claims.asp.
  • Semiannual Report to Congress: The OIG issues a semiannual report to Congress keeping it informed of the OIG’s activities, significant findings and recommendations. The Semiannual Report often contains information on significant fraud and abuse cases and initiatives. In addition to the current Semiannual Report there is an archive going back to 1996. See http://oig.hhs.gov/reports-and-publications/archives/semiannual/index.asp.

In addition, the OIG publishes a Work Plan every year. Although this Work Plan does not contain specific cases, it does set forth some of the focus areas for the OIG for the current and upcoming years. Since 2013, the Work Plan has included the following anesthesia issue:

Anesthesia services—Payments for personally performed services We will review Medicare Part B claims for personally performed anesthesia services to determine whether they were supported in accordance with Medicare requirements. We will also determine whether Medicare payments for anesthesia services reported on a claim with the “AA” service code modifier met Medicare requirements. Physicians report the appropriate anesthesia modifier code to denote whether the service was personally performed or medically directed. (CMS, Medicare Claims Processing Manual, Pub. No. 100-04, ch. 12, § 50) Reporting an incorrect service code modifier on the claim as if services were personally performed by an anesthesiologist when they were not will result in Medicare's paying a higher amount. The service code “AA” modifier is used for anesthesia services personally performed by an anesthesiologist, whereas the “QK” modifier limits payment to 50 percent of the Medicare-allowed amount for personally performed services claimed with the “AA” modifier. Payments to any service provider are precluded unless the provider has furnished the information necessary to determine the amounts due.

See http://oig.hhs.gov/reports-and-publications/workplan/index.asp. With anesthesia in the OIG’s spotlight, it behooves practices to keep abreast of current OIG enforcement actions.

The United States Department of Justice

The Department of Justice (DOJ) is tasked with enforcing all of the laws of the United States, including everything from bank robbery to drug trafficking to terrorism. Within the mix, and as a one of its top priorities, the DOJ enforces the laws surrounding healthcare fraud and abuse. The civil and criminal prosecutions for the DOJ are handled in branch offices located in each state, with some states having multiple branch offices. See “Find Your United States Attorney” at http://www.justice.gov/usao/find-your-united-states-attorney. Importantly, each branch office has its own website, most issuing press releases (and holding press conferences) on indictments, settlements and convictions. Savvy compliance officers recognize that careful monitoring of the website for the United States Attorney’s office in their jurisdiction can lead to valuable information on those areas in healthcare under the most vigorous investigation where their practice is located.

Specialty Societies

Both the American Society of Anesthesiologists (www.asahq.org) and the American Medical Association (http://www.ama-assn.org/ama) publish information on cases involving healthcare fraud and abuse. Anesthesiologists can also visit the websites for their state societies for information specific to the states in which they practice.

Media and Social Media

As mentioned above, the DOJ issues press releases on its cases and resolutions. These press releases often lead to more in-depth reporting in traditional local and national media outlets. Not surprisingly, social media has gotten into the fray with information on healthcare fraud cases in on-line publications, blogs and even on YouTube. See, e.g., https://www.youtube.com/watch?v=WeAVD0oMoHA.

Cases and Lessons Learned

The following cases give anesthesia providers a glimpse into the areas of interest to federal and state prosecutors (both civil and criminal) relating to anesthesia practices. Each set of cases is followed by the lessons that can be learned from the cases.

ANESTHESIA TIME

Endoscopy Center of Southern Nevada – Tonya Rushing and Dr. Dipak Desai

Ms. Rushing was the CEO of the now defunct Endoscopy Center of Southern Nevada and owned the billing company that submitted claims for the Endoscopy Center. The government alleged that Ms. Rushing instructed the anesthetists employed by the Endoscopy Center to overstate their time on the anesthesia records and then she instructed the billing company staff to rely on the false anesthesia times when submitting claims. The billing company received nine percent of net collections on the fraudulently billed time for services rendered. Ms. Rushing pled guilty to conspiracy to commit healthcare fraud and was sentenced to one year and a day in prison, two years of supervised release, 150 hours community service, a $10,000 fine and $50,000 in restitution.

Dr. Dipak Desai owned the Endoscopy Center. The government alleged that Dr. Desai had the CRNAs use left-over anesthesia drugs in previously opened vials and that he used the same colonoscopy scopes and bite plates from patient to patient. More than 50,000 patients were warned to be tested for hepatitis and HIV, nine patients contracted incurable hepatitis C, and at least two patients died from the illness. Dr. Desai was found guilty of second degree murder and insurance fraud and was sentenced to life in prison with possible parole after 18 years.

The CRNAs that provided the anesthesia services and knew about the reuse of the scopes and bite plates were also charged criminally. Anesthetist Ronald Lakeman was convicted of insurance fraud and criminal neglect and sentenced to eight to 21 years in prison. Anesthetist Keith Mathahs pled to criminal neglect of patients resulting in death, insurance fraud and racketeering but was sentenced to only 28–72 months in prison because he cooperated with prosecutors and testified against the other defendants. See https://www.fbi.gov/lasvegas/press-releases/2015/endoscopy-center-ceo-sentenced-in-billing-fraud-scheme, http://www.reviewjournal.com/news/nurse-anesthetist-sentenced-prison-hepatitis-c-outbreak, http://www.reviewjournal.com/news/desai-sentenced-life-prison-possibility-parole-hepatitis-outbreak.

US v. Cabrera and Arbona

The government brought a civil case against an anesthesiologist and his billing clerk alleging overbilling of anesthesia time. Interestingly, the government investigators substantiated the allegations by comparing the billed time to the operating reports, anesthesia records and nursing notes. The defendants were found joint and severally liable for $1.3 million dollars. See http://www.leagle.com/decision/2000340106FSupp2d234_1307.xml/U.S.%20v.%20CABRERA-DIAZ.

Anesthesia time is an integral part of anesthesia billing and will always be a considered a compliance risk area. An effective compliance program should include education of providers and billing staff regarding the definition and documentation of anesthesia time along with regular audits of records with a special emphasis on comparing the anesthesia record to the facility records to ensure the accuracy of the documented anesthesia time. Groups should also consider billing directly from the anesthesia record so that the billing staff can compare the anesthesia time to the monitoring grid to confirm congruence. Finally, cases that involve poor quality of care often lead to increased interest in prosecution and enhanced penalties.

MEDICAL DIRECTION

Vanderbilt University Medical Center

This case was filed as a whistleblower lawsuit by a former anesthesiologist with the group. The allegations are that the group submitted claims for medical direction without meeting the seven steps (e.g., the anesthesiologist was in a separate building and therefore not immediately available) and that the electronic medical record provided anesthesiologists with only one choice for describing the level of treatment, “medically directed,” even though treatment of patients almost never met the necessary criteria. See https://www.nashvillepost.com/news/2013/9/11/whistleblowing_docs_allege_vast_vumc_medicare_billing_deception. This case remains pending.

Dr. Richard Toussaint

Dr. Toussaint was indicted in May 2015 on 17 counts of healthcare fraud against Blue Cross Blue Shield, UnitedHealthcare and the Federal Employees Health Benefits Program. The charges against Dr. Toussaint, an anesthesiologist and founder of a chain of upscale hospitals in Texas, are for claiming that he was present and personally participating in the anesthesia services when in fact he was under anesthesia himself or on a private jet or in another state. The indictment states that Dr. Toussaint would:

  • Hand-write his initials in both the top and bottom right sections of the medical record in the ‘Pre- Anesthesia Consultation & Plan’ and ‘Anesthesia & Surgical Vents’ sections and then leave the hospital;
  • Hand-write on the chart ‘Present for induction and emergence’ along with his initials—knowing he would not be present for these events; and,
  • Order nurses and other caregivers to falsely claim he was present when he was not.

 If convicted, Dr. Toussaint faces ten years in prison for each count of healthcare fraud and a $250,000 fine in addition to forfeiture of several luxury cars allegedly purchased with the fraudulently acquired money including a 2016 Bentley, a 2012 Rolls-Royce Ghost and a 2015 McLaren 650S Spider. See http://www.dallasnews.com/news/crime/headlines/20150520-dallas-anesthesiologist-to-plead-not-guilty-to-17-counts-of-health-care-fraud.ece, http://healthcare.dmagazine.com/2015/05/20/feds-indict-founding-physician-of-forest-park-medical-center-on-17-counts-of-healthcare-fraud/.

Lessons Learned

With the medical direction modifiers included in the OIG Work Plan and the filing of cases involving the seven steps of medical direction, thoughtful compliance officers understand the need for effective training of anesthesiologists and billing staff on medical direction criteria and exceptions. Groups should consider billing directly from the anesthesia record (rather than a charge document) so that the billing staff can append the correct medical direction modifier based on the actual documentation in the record.

Moreover, compliance officers should conduct regular compliance auditing of records to ensure that the correct modifier is being billed. For anesthesia groups that are using an EMR, the compliance program should include a review of the EMR to ensure that anesthesiologists have the ability to bill all level of services and are not forced to select medical direction in those instances in which the seven steps were not met.

An effective compliance program should include policies requiring providers and other employees to report any potential fraudulent conduct to the compliance officer/compliance committee so that the group can take the necessary corrective action. Failure to correct potentially fraudulent conduct can lead to a whistleblower lawsuit.

Finally, under federal law the DOJ can prosecute cases for alleged fraud involving commercial insurance companies. An effective compliance program must include substantive and procedural policies applying to commercial insurance companies including a careful review of contracts with the insurance companies and relevant state laws.

PRE-DOCUMENTING CASES

University of California – Irvine

This case was filed as a whistleblower lawsuit by a former professor/ anesthesiologist and was settled for $1.2 million. As in the Vanderbilt case, the whistleblower alleged that the anesthesiologists were not meeting the seven steps of medical direction as the physicians would be in a different building at the time they claimed to be medically directing. What distinguished this case was the fact that the government conducted an unannounced site visit and reviewed anesthesia records in which the anesthesiologist had pre-documented cases to make it appear that s/he was present including cases where the anesthesiologist had filled out the record before the case started, and cases where the record was fully documented through emergence despite the fact that the patient was still in the middle of surgery. See http://articles.latimes.com/2013/mar/28/%20local/la-me-uci-medical-20130328, http://articles.latimes.com/2008/sep/26/%20local/me-ucirvine26.

Both the Toussaint case and the UC Irvine case focus on providers documenting anesthesia records before services were provided, which the government considers a quality of care issue as well as a potential fraud issue. Documentation of services should be done contemporaneously with the service rendered, or after the fact in an accurate and open amendment, but should never be done prior to the service rendered. Anesthesia groups should, if necessary, educate providers to ensure that they understand that records should not be pre-documented. In those instances where pre-documentation has occurred, groups should take corrective action, including disciplinary action, against the offending provider.

Moreover, compliance officers should understand and educate providers regarding the appropriate way to amend a medical record. Medicare provides guidance on this issue at http://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/SE1237.pdf.

HEALTHCARE FRAUD AND FALSIFYING RECORDS

Dr. Paul Madison and Jeanette Shin

Dr. Paul Madison and Jeanette Shin were indicted in 2012 for alleged healthcare fraud against private insurance companies and the federal workers compensation program. If convicted, Dr. Madison faces ten years in prison and a $1.5 million fine and Ms. Shin faces six years in prison and a $750,000 fine. The allegations against Dr. Madison were that he: (1) claimed to provide anesthesia services to patients undergoing chiropractic manipulation under anesthesia (MUA) that were not performed; (2) disguised fraudulent billings by creating false medical and billing records; (3) directed billing staff, nurses, chiropractors to create false records; and (4) directed staff to lie to investigators. The allegations against Ms. Shin are that she falsified her nurse’s reports by claiming the chiropractors performed MUAs under anesthesia when she knew it was not true. This case is not yet resolved. See http://www.justice.gov/archive/.

Lessons Learned:

As with the Toussaint case, the government charges included alleged fraud against commercial insurance companies. Savvy compliance officers include policies regarding accurate documentation and billing to commercial insurance companies as an integral part of their compliance program. Compliance education and monitoring should also include close attention to commercial payers.

The government will seek redress against not only the provider that benefitted financially from the fraud, but also against office staff who did not benefit directly; it is the act of fraud and not the money directly received from the fraud that dictates government action.

DISTRACTED ANESTHESIA PROVIDERS

Milne v. Medical City Dallas, Rinkenberger (surgeon) and Spillers (anesthesiologist)

Drs. Rinkenberger and Spillers were sued for malpractice after a patient died 10 hours after an AV node ablation. Allegations in the complaint against Dr. Spillers included “distracted doctoring.” Dr. Rinkenberger testified at his deposition that Dr. Spillers failed to notice dangerously low blood oxygen levels until 15 or 20 minutes after the patient turned blue and that he saw Dr. Spillers on a cell phone and an iPad when he should have been closely monitoring the patient. Dr. Spillers admitted that he goes on to the internet while personally providing anesthesia stating:

“I have logged on to the Internet before especially if—specifically if I have a question about the patient's yes, we'll often, you know, do a search and find out information pertaining to the case. I will occasionally check e-mail. I will occasionally check scheduling for the office. But in general, no, I—the time spent on the Internet during a case is, you know, very brief, a couple, three minutes.”

Dr. Spillers denied that he posted on Facebook during cases when, in fact, the plaintiff ’s attorney had obtained the following postings from Dr. Spiller’s Facebook page:

  • “After enduring the shittiest Friday I’ve had in a while I just found out my next patient has lice. Freakin lice. I didn’t even know they still made those. Help.”
  • A picture of an anesthesia monitor with the post, “Just sitting here— sitting here watching the tube on Christmas morning. Ho ho ho.”

See http://www.dallasobserver.com/news/dallas-anesthesiologist-being-sued-over-deadly-surgery-admits-to-texting-reading-ipad-during-procedures-7134970 and https://stanfordhealthcare.org/health-care-professionals/medical-staff/medstaff-update/2013-february/201302-distracted-doctoring-and-patient-safety.html. As of the writing of this article there has been no final disposition of this malpractice action.

Lessons Learned

Aside from the fact that plaintiff attorneys are increasingly including distracted provider allegations in malpractice litigation, the use of electronics and social media while providing anesthesia has implications for the relationship between the anesthesia group, surgeons and hospital administration. Anesthesia groups are increasingly evaluated on “customer service” and the use of electronics and social media during patient care looms large as a major concern to facilities and surgeons. Prudent anesthesia groups should have a policy on the use of electronics and social media including the circumstances in which electronics can be used and the consequences for failure to comply with the policy.

Conclusion

An effective compliance program is the key to ensuring that all services are accurately and adequately documented and that all submitted claims and payments are correct. Thoughtful compliance officers review government and commercial payer resources regularly to ensure that their groups remain current on the state of the law and the claims policies of both governmental and commercial insurance programs. They also educate and monitor claims on a regular basis to assess provider compliance and take corrective action as needed to safeguard the group from fraud and abuse.


 Vicki Myckowiak, Esq., is a principal of Myckowiak Associates, P.C., Detroit, MI. Ms. Myckowiak has been practicing healthcare law for over 25 years and focuses her practice on representing anesthesia and chronic pain practices on issues including compliance programs, reimbursement, third party payer coverage issues, Medicare audits, commercial payer audits, fraud and abuse defense, contracting, chronic pain informed consent, and HIPAA. Ms. Myckowiak has helped implement and maintain compliance programs for dozens of anesthesia and chronic pain practices across the country. She also works extensively with third party billing companies. A graduate of Franklin and Marshall College and The National Law Center at George Washington University, Myckowiak is a member of the American Bar Association, the American Health Lawyers Association, the Health Care Compliance Association, and the Michigan Society of Healthcare Attorneys. Ms. Myckowiak frequently writes and speaks nationally on trends in health care law including contracting, fraud and abuse, government enforcement efforts and regulatory initiatives, and compliance programs. She can be reached at vicki.mycklaw@gmail.com.