Douglas Moss, a convicted perpetrator of health insurance fraud on his way to federal prison, requested a restraining order from his trial and failed appeal, which I reported on https://zalma.com/blog/go-to-jail-go-directly -to-jail -do-not-pass-go /
The petition for rehearing a banc is still pending. In light of the issuance of a revised panel statement, which adds a paragraph, Moss is given 21 days to submit a supplement to his request for reconsideration a banc, if he wishes to do so. He is not obliged to submit supplements. If he submits one and the court requests a response from the government, it will be requested. The current decision, i USA, Plaintiff-Appellee v. Douglas Mossno. 19-14548, 19-14565, United States Court of Appeals, Eleventh Circuit (May 20, 2022), he again tries unsuccessfully to avoid imprisonment, restitution and confiscation.
THE GROUND FOR THE CRIME
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. 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. Someone else with a lower billing rate made some of these visits, and others never took place.
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 and questioned convictions, penalties, restitution amounts and confiscation amounts, which is almost every part of the verdict against him and he lost on every part of his appeal.
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. CPT codes are a national unified coding structure created for use in billing and are monitored by the American Medical Association. They are used by all health insurance companies and by Medicare and Medicaid.
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. It is common for doctors to file claims that exceed the amount in the fee schedule, even though they know they will not be reimbursed for the excess amount.
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.
THE FRAUD PLAN
Moss was medical director and treating physician at four nursing homes. The services that Moss invoiced on a fantastic day would have required him to put in almost 100 hours during the 24-hour period. People sometimes wish there were more hours in a day, but Moss alone miraculously stretched some of his days to much more than 24 hours. Of course, Moss’ miracle was not miraculous, it was old-fashioned fraud.
PROSECUTION AND TRIAL
Moss went to trial. After a seven-day trial, a jury found him guilty on all counts. The jury heard evidence about how the representations Moss made in the invoices were impossible: he claimed to have performed more than 24 hours a day, he claimed to have met over 50 patients a day and he claimed to have seen patients in Georgia when in fact was in Las Vegas. It was not a close case.
Moss’ survey report recommended a guideline interval of 78 to 97 months. 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. The amount confiscated was the total amount that Medicare and Medicaid had paid to Moss, without any deduction for any legitimate services he had provided.
Moss presented six character witnesses: four former patients, a former patient’s wife and a licensed nurse who had worked with him in an emergency room. These witnesses testified in detail about the medical care that Moss provided, and they consistently testified that in their opinion he had a good character and was compassionate, caring, and honest.
Moss was not prosecuted for being unfriendly or caring, or for not being compassionate when he met patients, but for lying about meeting any patients at all and for billing Medicare for services he did not provide.
It is one thing to claim that one defendant was not motivated by profit and another to claim that he did not commit a crime because there was no evidence that he had made a profit. The government does not have to prove a penny in profit to determine the elements of fraud. Lack of proof of profit is no defense. The defender was not entitled to claim that this was the case.
QUESTIONS OF OPINION
The district court did not make a clear mistake when it found that Moss’ intended loss is $ 6.7 million, not $ 2.5 million. Intentional damage is financial damage that the defendant deliberately tried to inflict and also includes intended financial damage that would have been impossible or unlikely to occur.
Moss intentionally invoiced in a way that would maximize the money he received from Medicare. The way Moss “maximized” its profit was by always invoicing its claims at a higher interest rate than that in Medicare’s schedules.
Intended loss also includes loss and damage that is unlikely to occur. The Court of Appeal’s review of the intended amount of loss is only for clear errors, and there is nothing.
Moss claims that the $ 2,256,861.32 that the district court ordered him to pay in compensation is too much. He claims that he is entitled to more than a 10 percent discount for legitimate services. Moss’ estimate was that the value of legitimate services was $ 1,079,219.39, which would reduce the refund to $ 1,428,404.30.
Moss had the burden of proving the value of any medically necessary goods or services which he provided and which he claims should not be included in the refund amount. He failed at that.
The trial court concluded: While Moss presented evidence of the number of visits, Moss failed to present evidence confirming the legitimacy of those visits.
The Court of Appeal concluded that the district court did not make a manifest error when it rejected it and identified the fatal defect in his method that we were just discussing. The burden was on Moss to show that the services he provided were medically necessary
The trial court made no clear error in rejecting Moss’ estimate and ordering a refund in the amount of $ 2,256,861.32.
The district court ordered Moss to seize $ 2,507,623.69. This is the amount that Medicare and Medicaid paid him for claims invoiced under CPT codes 99306, 99309 and 99310. Confiscation was decided under 18 USC § 982 (a) (7), which provides that, in convictions for federal health offenses such as t. ex. Moss’, the court shall “order the person to confiscate property, real or personal, which constitutes or derives, directly or indirectly, from gross income which can be traced to the commission of the crime.”
In light of Moss’ failure to identify a single correctly invoiced claim, he has not convinced the Court of Appeal that the district court was clearly wrong.
The Eleventh Circuit has given a lot to ex-doctor Moss, including a second opinion that confirms his beliefs and judgments, even though he is the ultimate perpetrator of healthcare fraud. He belongs in prison and should be prevented from using the money he stole to force the government to put him on trial before a jury and consider two attempts to appeal his conviction and verdict. He clearly violated the first oath that a doctor takes, which is: “first, do no harm.” A relative of mine once told me that it was not until the 1950s that the chance of getting better when treated by a doctor was greater than no treatment at all. If you were treated by Dr. Moss or his co-conspirators were the chance to get a benefit from the service close to zero. And if the necessary treatment was not given and his bills were fraudulent, the patient will surely get worse.
(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 firstname.lastname@example.org.
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