The Obama administration views health care fraud “as one of the most urgent and destructive issues” confronting federal law enforcement and has adopted “a zero tolerance policy” of the crime, the U.S. attorney for the Southern District of Georgia said Thursday.
Speaking at conference on health care fraud Dec. 13 in Atlanta, U.S. Attorney Edward Tarver, an Obama appointee, said that for every $1 the administration has spent in prosecuting health care fraud, it has recovered $7. Tarver suggested that in his district the ratio of funds expended to dollars recovered is “probably better.”
Attorneys representing health fraud whistleblowers, he said, “like to file cases now in the Southern District of Georgia because they know their cases will be investigated.”
Tarver was among four current and former U.S. attorneys, 17 current and former federal prosecutors and U.S. Justice Department lawyers and the head of Georgia Attorney General Sam Olens’ Medicaid Fraud Control Unit who spoke at the Health Care Fraud Institute at the State Bar of Georgia.
The annual program is co-chaired by two former U.S. attorneys—Joe Whitley, who served as U.S. attorney of both the Northern and the Middle districts of Georgia, and Paul Murphy, a former U.S. attorney of the Southern District.
Health care fraud enforcement “is a hot subject and one that should matter to any health care provider,” Whitley said, “particularly those who might be facing some scrutiny from federal law enforcement.”
“Health care is such a large part of our economy,” Whitley explained. “As a consequence, significant amounts of money flow from government entities out to health care providers, and there are, as a consequence, some providers who choose not to comply with the law and enrich themselves rather than provide health care services.”
The amount of money that can be diverted from serving patients via government programs and private insurers “can become significant,” he added.
With the implementation of the Patient Protection and Affordable Health Care Act, Whitley said he expects the opportunities for fraud by unscrupulous providers will grow as federal funds for health care increase.
Tarver said his staff has been aggressive in following the Justice Department’s health care fraud mandate. This year, his office sent a Brunswick businessman to federal prison for 3½ years for billing more than $500,000 to Medicare through two medical equipment companies in Brunswick and Houston for equipment and services that prosecutors said were never provided, not medically necessary and not prescribed by a physician.
Tarver said his office also secured a 5-year prison term for an Armenian national who illegally siphoned more than $1.5 million from Medicare through a phony medical business in Brunswick.
Tarver’s prosecutors also recovered $840,000 in a settlement with Satilla Regional Medical Center in Waycross based on allegations that one of its doctors had performed procedures at the hospital’s heart center that he was neither qualified nor properly credentialed to perform—endangering patients and injuring others, one who died.
Tarver said the Satilla case sprang from a whistleblower, or qui tam, false claims suit.
Tarver issued an invitation to whistleblower attorneys, some of whom were in the audience. “The Southern District is open for business,” he said. “If you file cases in the Southern District of Georgia, they will not languish and will not sit on people’s desks.”
In addition to his office’s attention to these cases, Tarver added, several Southern District judges “don’t believe we have responded quickly enough in deciding whether or not to intervene” in whistleblower cases.
But Tarver is not the only federal prosecutor embracing aggressive law enforcement action to curtail health care fraud.
Assistant U.S. Attorney Randy Chartash, chief of the economic crimes division in the Northern District of Georgia, acknowledged that his office employs wiretaps, surveillance and other covert forms of investigation in building health care fraud cases.
“We use all the arrows in our quiver,” he said.
James Durham, Tarver’s first assistant U.S. attorney, said that prosecutors in the Southern District in one case used an undercover FBI agent posing as a disabled patient with a camera secreted in a briefcase to obtain evidence against a suspect.
Charles Richards, who oversees Olens’ Medicaid task force, said that his office also employs covert methods in its Medicaid fraud investigations.
Chartash and Chief Assistant U.S. Attorney Amy Berne, who heads the civil division in the U.S. attorney’s office in Atlanta, said that if a health care provider uncovers instances of potential fraud, voluntary disclosure to the government is a significant factor in avoiding criminal prosecution.
But, Chartash added, “It’s not immunity or amnesty.”
The Atlanta U.S. attorney’s office has also turned a spotlight on “failure of care” cases, said Assistant U.S. Attorney Lena Amanti. Those cases stem from a longtime DOJ initiative to spotlight fraud and abuse in elder care, particularly nursing homes, she said.
AUSA Glenn Baker, Chartash’s deputy chief, said that the office “is not trying to regulate nursing homes. That’s not the U.S. attorney’s job.” But, he added, “Sometimes things get so bad we are willing to take a look at it,” particularly where failures of care “have a cumulative effect” where almost every nursing home resident is impacted in some way.
One of those instances was Baker’s recent prosecution of Sandy Springs attorney George Houser, a Harvard law school graduate who owned two nursing homes in Rome and one in Brunswick.
After a monthlong bench trial in front of U.S. District Judge Harold Murphy in Rome, Houser was convicted of health care fraud and tax fraud. He was sentenced to 20 years in prison and ordered to pay more than $7.5 million in combined restitution to Medicare, Medicaid and the IRS.
In going after Houser, Baker said federal prosecutors focused on quality of care and whether the services Houser provided were essentially worthless so that his bills to the government for services were fraudulent.
Baker explained that Houser’s nursing home services were so minimal that the food budget for his nursing homes was just 20 percent of a typical nursing home’s food expenses. The nursing homes’ environments were chaotic, Baker said, with leaking roofs, visible mold and patients left to lie in their own waste. Houser, he said, was fielding emails from nursing home staff almost daily about deteriorating conditions. He ignored them, the prosecutor said.
Michael Trost, who defended Houser and is appealing his conviction, was in the audience during Baker’s comments. At Baker’s invitation, Trost said that Houser had relied on annual state surveys of the nursing homes that never indicated that any problems with their operations could be considered potentially criminal.
He said that defense attorneys had challenged the “worthless services” theory as too vague to carry a prosecution—an argument that Murphy ultimately rejected.
Baker suggested that there is a growing body of civil cases that recognize worthless services as a viable basis for a fraud allegation. Those cases, he said, resonate with prosecutors because nursing home residents are particularly vulnerable.
“Our goal,” he said, “is to protect those residents.”