Mr. Kuniansky has defended numerous Medicare fraud cases. Medicare fraud by dollar value is the single largest fraud committed on the federal government. It may take many forms, but in the final analysis, it usually involves allegations that a doctor, clinic or medical equipment provider billed Medicare for services that were either never rendered or provided, or were rendered or provided but were unnecessary. The fraud usually operates by “marketers” obtaining the Medicare number and identifying information of a Medicare beneficiary. Sometimes the Medicare beneficiary is actually seen by a doctor or clinic, and sometimes just their Medicare number and identifying information is used to bill Medicare for services that were never performed. When the Medicare beneficiary is seen by a doctor, the examination is often short and perfunctory, and numerous expensive tests are ordered. These are then billed to Medicare at high rates. The government often alleges there was nothing wrong with the patient, and the tests were simply performed to bill Medicare. The government often presents testimony from the patient’s long time doctor, that the patient was in good health, and the tests were unnecessary.
This same alleged “scheme” occurs with Durable Medical Equipment providers, whether it is wheelchairs, orthotics, adult diapers or other medical products.
A current hot area of alleged Medicare fraud involves Partial Hospitalization Programs (PHPs). A PHP is a program for patients that have serious medical or psychiatric conditions that do not require in-patient hospitalization, but do require intensive out-patient care. Medicare provides for such benefits for programs that meet Medicare guidelines. The current area of alleged abuse is with psychiatric Partial Hospitalization Programs. The allegations of fraud usually center around three distinct areas. First, it is unlawful for a PHP to pay for patients. Oftentimes, the patients come from group homes, and the group homeowners are offered financial incentives by “marketers” to bring their patients to the PHP. The second area of alleged fraud is that the government contends many of the patients do not qualify for the program, either because they do not have a mental illness, or even if they do have a mental illness, are not suitable candidates for group therapy because they have dementia. The third area of alleged fraud is that the PHPs are not rendering true psychiatric group therapy sessions, but are instead providing “adult day care”.
There are usually two defenses to Medicare fraud cases. The first is based on the complexity of the Medicare regulations which are contained in thousands of pages of fine print. The complexity of the regulations oftentimes leaves a crack in the government’s case big enough to drive a truck through. For example, in a recent case Mr. Kuniansky defended, the government called the country’s leading coding expert to testify how the Defendant had erroneously coded various pieces of medical equipment, yet on cross-examination, she admitted she made a coding mistake herself on one of the items.
The second defense usually involves placing the blame on those truly responsible. The doctors contend they were simply employees of a clinic, and had nothing to do with billing. The clinic owners contend they relied on the expertise of the doctor employees, and billed correctly for the services provided. And finally, the marketers contend they were simply “marketing” the services provided by the doctors/clinics, and were not part of any fraud.
Finally, in the unfortunate event of a finding of guilt, there are usually ways to minimize the sentence by reducing the dollar loss amount for the alleged fraud, the Defendant’s role, and other factors the government often uses to try to “enhance” the sentence.