Posted and filed under Fraud, FWA, Healthcare.

The Fraud Spotlight series is a long-form examination of current fraud trends and investigative strategies from our team of retired OIG agents and expert fraud investigators. Stay tuned for weekly insights, updates, and information on healthcare’s most expensive crimes. 

Earlier in the week, this press release came out. We spent a lot of time looking through social media postings for some discussion of this, and oddly (or maybe not), there was barely a discussion.

When we read social media, the heavy focus was on what could have been done to prevent things, what should have been done, and general failures of everyone from the janitor to the investigators to the prosecutors. This coupled with the now also common, “what about……,” were “what about…” are the other potential defendants in the investigation, are never answered to the satisfaction of anyone. What makes this case interesting is that one of the cornerstones of the criminal justice process relies upon the punitive nature of being sentenced. 

For most white-collar criminals, the length of the prison sentence is not what makes the sentence the most punitive; it is the collateral effects that being adjudicated guilty carry. A traditional criminal is used to the “system,” understands the ramifications of the criminal lifestyle, and is prepared to deal with the punitive nature of committing a crime and being caught and being sentenced. A white-collar criminal, however, is not typically experienced in the criminal justice system, and the effects of a punitive sentence can have lasting effects. Well, so would be the case until the above situation. 

 In this matter, a previously convicted physician (who is nothing more than a citizen, as his license to practice was revoked by the licensing authorities in his home state), is a two-time visitor to the criminal justice system. This is an anomaly in the healthcare fraud world, since, for the most part, you do not see the recidivism that you do in the traditional criminal world. What is going to be the lynchpin for this individual is that from a Sentencing Guidelines perspective, his criminal history category will be higher, and the chances of working a plea agreement that would be to his benefit, the US Attorney’s Office will likely provide him with no relief. 

  • A few interesting points: 
  • This defendant was excluded in 2015
  • They remain an excluded individual,
  • He was slated to start his trial on November 2, 2020 (and pleaded guilty on October 30). 

In support of his defense, he had falsified documents as defense exhibits. (This would have been a challenge to his defense attorneys, who likely did not know the documents were false.)

We were struck by the audacity of this individual for several reasons. First and foremost, seeing a recidivist in a healthcare fraud-related capacity is rare. Equally as rare is that the charges included aggravated identity theft, which we often do not see in healthcare fraud cases. The sad part is that the identity theft charge alone has a maximum of two years imprisonment and had the defendant in this case been charged with that, his Sentencing Guidelines would have likely exceeded the statutory maximum. 

The additional charge of healthcare fraud works in the government’s favor to ensure that any potential prison sentence is not capped by the short statutory maximum that exists on lesser charges. These charges will likely be “grouped” by the US Probation Officer conducting the Pre-Sentence Investigation since everything was connected, but it is still an interesting exercise to understand. 

As we have written about several times, sentencing defendants in fraud, and particularly healthcare fraud cases, is extremely complex. Most readers of the last page of the book often do not have an understanding of all of the pieces of the ever-moving puzzle that exists. Billed amounts, paid amounts, numbers of victims, who is considered a victim, various enhancements and mitigations, all work to come up with a range for sentencing and fines that the courts rely upon for guidance, but only in an advisory capacity. We hope that when people read about the sometimes-short sentence or lack of a “real” sentence is affected at sentencing, those same people will retain an open mind to understand that what is reported is not always the full story. 

Advize Health LLC is a healthcare advisory and consulting company that provides a breadth of healthcare industry services in the payer, provider, and legal communities. Contact our former OIG and Fraud Investigation team by emailing info@advizehealth.com for more information on our Fraud Spotlight series.