SAN DIEGO (January 26) Less than a year after a South Florida internet Pharmacy trial was dismissed in part due to prosecutorial misconduct, (click: here to read more) another large internet pharmacy case may be heading the same way. A federal judge in San Diego is considering dismissal of a case that initially ended in a mistrial last year after allegations arose that the prosecutor in the case made misstatements to the court about data on computer servers obtained by the government that defense attorneys had requested and were told didn’t exist. We reported about this case last summer here.
The Affpower case was the first internet pharmacy case to use the racketeering statute to prosecute a number of participants in an alleged unlawful internet pharmacy operation and for one of the first times included website owners who were marketers and not involved in the pharmacy or medical affairs of the operation. Defense attorneys had requested access to the computer servers holding the original data, a copy of some of which was used at trial. The prosecutor in the case reported to the Defendants and reportedly the court that the original data had been wiped clean off of the servers, the only data available was that which the government would be using at trial.
The mistrial occurred after the jury originally announced guilty verdicts for all defendants; the jury was polled and it was discovered that one juror did not agree with the verdict. In preparing for the retrial, defense attorneys asked to have an expert review the servers; the expert found that all of the original data was still on the servers. In a bluntly worded order, Chief Judge Irma Gonzalez has ordered prosecutors to explain why she should not dismiss the case due to the misconduct.
For more, click: here.
Monthly Archives: January 2010
Why Losing At Trial Can Be Costly
HOUSTON – Whether it is known as “courtroom rent” or by some other name, the dangers of going to trial as opposed to pleading guilty requires a careful consideration of the case, the facts, the sentencing guidelines and the judge.
Two Texas DME owners learned the very hard way yesterday at their sentencing following a trial. Rhonda Fleming was sentenced to 30 years in prison for her role in a DME scheme, she was the alleged owner of three DME companies and a billing company that submitted the claims, totaling $36 million. Her trial co-defendants, a co-owner of one DME and a “runner” (someone who supplied patient information for the others in the scheme) were sentenced to 11 years 3 months and seven and a half years in prison. Their co-defendants, who plead guilty before trial and testified at trial received 12 months, 60 months and 70 months in prison.
For more info, click: here.
HHS Inspector General Re-Issues Updated Fraud Alert – DME Suppliers Beware!
Health and Human Services Office of Inspector General released an updated fraud alert “Telemarketing by Durable Medical Equipment Suppliers” originally published in March 2003.
The Fraud Alert states in relevant part:
Section 1834(a)(17)(A) of the Social Security Act prohibits suppliers of durable medical equipment (DME) from making unsolicited telephone calls to Medicare beneficiaries regarding the furnishing of a covered item, except in three specific situations: (i) the beneficiary has given written permission to the supplier to make contact by telephone; (ii) the contact is regarding a covered item that the supplier has already furnished the beneficiary; or (iii) the supplier has furnished at least one covered item to the beneficiary during the preceding 15 months. Section 1834(a)(17)(B) specifically prohibits payment to a supplier that knowingly submits a claim generated pursuant to a prohibited telephone solicitation. Accordingly, such claims for payment are false and violators are potentially subject to criminal, civil, and administrative penalties, including exclusion from Federal health care programs.
The Office of Inspector General (OIG) has received credible information that some DME suppliers continue to use independent marketing firms to make unsolicited telephone calls to Medicare beneficiaries to market DME, notwithstanding the clear statutory prohibition. Suppliers cannot do indirectly that which they are prohibited from doing directly. OIG has also been made aware of instances when DME suppliers, notwithstanding the clear statutory prohibition, contact Medicare beneficiaries by telephone based solely on treating physicians’ preliminary written or verbal orders prescribing DME for the beneficiaries. A physician’s preliminary written or verbal order is not a substitute for the requisite written consent of a Medicare beneficiary.
To read the Fraud Alert: Click here.
All OIG Special Fraud Alerts are available on the OIG Web
site at: http://oig.hhs.gov/fraud/fraudalerts.asp
To read the Federal Register: Click here.
Home Health is the Medicare Fraud Issue Du Jour; And Finally A Task Force Indictment Not Tied To Miami
As the federal government’s Medicare Fraud Task Force called HEAT (Health Care Fraud Prevention and Enforcement Action Team), left Miami and deployed out across the country in six phases to Houston, Los Angeles, Detroit, Tampa, Baton Rouge and Brooklyn, it seemed many of the initial arrests, particularly out of the Detroit area, had a Miami connection as if the frauds were Miami transplant operations.
Well, finally, a sizeable operation with it seems nary a link to Miami. More importantly, this arrest out of Detroit of 13 people and many of the latest arrests are all pointing towards home health as the priority. Several home health operators and several doctors were arrested in an alleged scheme involving paid patients, false plans of care, and services never performed.
To read more: Click here.
Arrests Made by Newly Created Central Florida Health Care Fraud Strike Force
Recently state and federal authorities announced a regional health care fraud strike force in the Tampa and Orlando region. In what may be one of the first operations of that strike force, a Lakeland, Florida couple, Lilian Pagkaliwangan, 40, and Raymundo P. Arellano, 42, operators of Lakeland Therapy Providers Inc. and Optimum Therapy Inc., were arrested for health care fraud with respect to the operation of those businesses. The charges include alleged fraudulent billing for services not provided.
According to the indictment the couple submitted claims for reimbursement for medical services not rendered, including services that were claimed to have been provided on days when the patients were not present at the clinic and couldn’t receive services.
Click here to read more.