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Go to jail, go straight to jail, do not pass go



Doctors who treated patients in Georgia for more than 70 hours a day while playing in Las Vegas end up in jail

The medical school does not teach how to defeat the law of relativity

Moss sometimes billed Medicare for services that amounted to more than 24 hours a day. He did it in 275 days. And some days he billed for services that would have taken him more than 70 hours that day. The services that Moss invoiced on a fantastic day would have required him to put in almost 100 hours during the 24-hour period.

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IN United States v. Douglas Mossno. 19-14548, 19-14565, United States Court of Appeals, Eleventh Circuit (April 12, 2022) the Eleventh Circuit upheld the conviction, verdict, restitution and confiscation of millions taken in Dr. Moss crime.

EXPLANATION OF MEDICARE AND MEDICAID SYSTEM

Medicare and Medicaid together spend $ 1.5 trillion a year, which is more than a third of the total health care in this country. Like other government health care programs, these two work with the honor system. Trust and more trust. Both programs charge first, ask questions later (if ever) approach. Which leads to crime and more crime, both sooner and later.

A trust-based system is only as good as the people who are trusted. Douglas Moss is one of those who was trusted but not trusted. As a physician, he fraudulently billed Medicare and Medicaid for millions of dollars for visits to nursing home patients, which he never did.

For his fraudulent conduct, Moss was convicted of conspiracy and aggravated health care fraud, sentenced to 97 months in prison, ordered to pay damages of approximately $ 2.2 million and ordered to forfeit approximately $ 2.5 million. He appealed, of course, and used the money he stole to pay lawyers to question convictions, penalties, amounts of restitution and confiscation, which is almost every part of the verdict against him.

FACTUAL BACKGROUND

To explain Moss’ crime, the eleventh district began its analysis of how Medicare and Medicaid determine how much care providers will be paid. It explained that Medicare and Medicaid are federally funded health care programs. Medicare pays “claims”, which are requests from a healthcare provider to be “reimbursed” (paid for) for services provided to Medicare recipients. It also contains a code for the procedure or service being performed.

The “CPT Code”, which stands for Current Procedural Terminology Code, is a national unified coding structure created for billing use and monitored by the American Medical Association. They are used by all health insurance companies and by Medicare and Medicaid. A code represents at least two things: the procedure or service performed and the complexity of it. One type of procedure or service may have more than one CPT code because in some cases the same procedure may be more complex than in others. In general, for a given category of procedures, the more complex the performance, the higher the number used for its code. In turn, a higher CPT code generally receives a higher compensation amount from Medicare.

Most of the frauds in this case concern demands for visits to nursing homes. In order for Medicare to be able to pay a claim, several requirements must be met. The service must be provided to a real patient who is properly registered as a Medicare recipient; it must be provided by a healthcare provider that is properly licensed and “registered” as a Medicare provider; it must be a service covered by Medicare; and it must be properly documented and invoiced. The service must also be reasonable and medically necessary. Healthcare providers sign a “certificate statement” that agrees that they will comply with all these requirements and will not file false claims.

In order to properly bill Medicare at the physician’s price for services provided in a nursing home, the physician must be the one in the patient’s room who directly provides the service to the patient. When an assistant performs the service, the claim filed with Medicare must disclose this fact.

THE FRAUD FRAUD

Moss was medical director and treating physician at four nursing homes. He recruited Shawn Tywon to be his doctor’s assistant and, as it turned out, his co-conspirator. Moss got Tywon to help with the hospital patients and he trained Tywon in how to make visits with these patients.

Between January 2012 and January 2015, Moss invoiced 31,714 claims to Medicare for visits to nursing homes; 477 was coded as 99306, the highest code for “initial care at the care facility.” And 25,468 were coded as 99309 and 5,769 as 99310, which are the two highest codes for “subsequent care at the care facility.” These figures suggest a staggering amount of work, a seemingly impossible amount of it. And, as it turned out, that amount of work was impossible.

The allegations made by Moss would have required him to see more than 50 patients a day for 293 of the days during the three-year conspiracy period, and even more than 100 a day on some days and more than 150 a day on other days. Not only that, but based on how long the CPT manual suggested these visits should take, Moss sometimes billed Medicare for services that amounted to more than 24 hours a day. He did it in 275 days. And some days he billed for services that would have taken him more than 70 hours that day. The services that Moss invoiced on a fantastic day would have required him to put in almost 100 hours during the 24-hour period. Moss alone miraculously stretched some of his days to well over 24 hours. If truthful Moss showed that Einstein was wrong and could stop the passage of time and work harder than humanly possible.

MIRACLE OR FRAUD

Of course, Moss’ miracle was not miraculous, it was old-fashioned fraud.

Moss’ billing revealed that he had personally seen 345 Medicare patients and 193 Medicaid patients in Georgia. These two sets of claims are unique in terms of Moss’ fraudulent claims because Moss, instead of being in Georgia and treating patients on those dates, as he claimed, had been in Las Vegas and played.

In addition to filing claims that were fraudulent because he had not performed the services he invoiced in his name and at his rate, he filed claims that were otherwise fraudulent. He also submitted allegations that were fraudulent because – whoever he claimed had performed them – they concerned services that were medically unnecessary or did not involve the level of complexity specified by the CPT codes that Moss imposed on these allegations.

Tywon, a medical assistant, testified that “probably for 95 percent of the time or more” when he himself had visited a patient, “there was nothing to do.” Instead, what he would do is go into the patient’s room, ask if everything was okay, and since a “majority of the time” the patient said he did not need anything, Tywon would then leave. He usually did no physical examination, took blood pressure or checked the patient’s heart rate. As Tywon stipulated in his agreement, he would only “set his eyes” on the patients and spend only “3 to 5 minutes with” them during the visits, except in the unusual case that they had some real medical need. According to him, there was no medical purpose for most of the visits and he did not think he had any reason to do them. Moss let him make the visit anyway and bill it on the highest code just because Moss wanted to increase his payments from Medicare, which he did. In that way, Moss added another layer of fraud in addition to invoicing in his name instead of Tywon’s name; he also billed for all the services provided as if they were much more complex and time consuming than they actually were.

Moss went to trial. After a seven-day trial, a jury found him guilty on all counts.

JUDGES

Moss’ survey report recommended a guideline interval of 78 to 97 months. That range was based primarily on a loss of $ 6,701,163, which was the amount Moss had invoiced Medicare and Medicaid; that factor alone caused an 18-level increase to his crime level.

The court sentenced Moss to 97 months in prison, which is the top of the guidelines. It also ordered him to forfeit $ 2,507,623.69 and to pay $ 2,256,861.32 in damages.

QUESTIONS FROM QUESTIONS

ANALYSIS

The total amount of dollars for fraudulent bills submitted to the government’s health care program shall be prima facie proof of the amount of the intended loss, ieis evidence sufficient to establish the magnitude of the intended loss, if it is not rebutted.

Moss intentionally invoiced in a way that would maximize the money he received from Medicare. As the district court put it: “[W]hile [Moss] might not have expected Medicare. . . would replace him with 100 percent, it is obvious that he manipulated his invoices to maximize his profit. The way Moss “maximized” its profit was by always invoicing its claims at a higher interest rate than that in Medicare’s schedules. By invoicing more than the planned amount, Moss ensured that he always received the full amount Medicare would pay.

REFUND

To no surprise, Moss claims that the $ 2,256,861.32 that the district court ordered him to pay in compensation is too much. According to 18 USC § 3663A (c), [the Mandatory Victims Restitution Act,] a defendant convicted of fraud must pay damages to the victims of the crime. The compensation must be based on the loss actually caused by the defendant’s conduct and reduced by the value of legitimate medical services provided.

When services are not medically necessary, Medicare reimburses a $ 0 fee. Since Moss’ assessment failed to embrace, health or even nod to medical necessity, the district court did not make a manifest error when it gave it little or no value.

Given Moss’ failure to identify a single correctly invoiced claim, he did not persuade the Court of Appeal that the district court was clearly wrong.

The Eleventh Circuit acknowledged that since Medicare and Medicaid payments are made on the “honor system”, it is widely open to fraud committed by dishonest healthcare professionals. Moss was a provider without honor. The system’s success for many years is due to the fact that the system considers all healthcare staff to be honorable and only paid Moss what he asked for even when a simple calculation would have shown that he invoiced for 70 hours of service in a single day. Moss earned a lot of dishonest money only to complain that he was not allowed to keep the fruits of his crime and as a kind and professional doctor was now obliged to practice medicine in the federal gray bar hotel – the federal prison. Hopefully, this will deter other doctors from trying to emulate his crime.


(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his internship to the position of insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

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