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How One Hospice Owner Got Convicted of Healthcare Fraud and How You Can Avoid That Fate

 

Published:

February 21, 2024
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The owner of a Louisiana hospice was indicted and then convicted of healthcare fraud. How did that happen? In this episode, Husch Blackwell's Meg Pekarske and Jonathan Porter talk about how a routine audit led to a whistleblower complaint by a hospice employee, which then led to the hospice owner’s criminal conviction following trial in November 2023. Most importantly, the pair discuss how other hospices can avoid that fate.

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This transcript has been auto-generated and may contain technological errors.

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hello and welcome to hospice insights

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the law and beyond where we connect you to

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what matters in the everchanging world

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of hospice and paliative

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care how one hospice owner got convicted

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of healthcare fraud and how you can

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avoid that fate Jonathan

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Porter Meg my my wonderful colleague so

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we're here to talk about you know

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something that didn't go so well for for

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one hospice um and sort of lessons

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learned from this so maybe to kick off

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this case can

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you and we can link to to the case in

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the um podcast notes so if people want

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this reading before they go to bed at

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night they can do that but you know tell

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us what this case is and what's it about

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and and whatnot yeah absolutely thanks

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Meg um good to be back back with you uh

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so let me first give a caveat I was not

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uh involved in this trial in in any way

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uh I'm working off of uh the publicly

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available docket uh plus media reports

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uh so I'm I'm doing my best here but um

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but but this is this is essentially a

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case uh about a a doctor in New Orleans

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named Dr Shiva akula Dr akula is an

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infectious disease specialist but he the

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side owned this Hospice in New Orleans

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he wasn't the medical director um wasn't

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certifying patients he was um you know

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he's doing his thing as an internal as

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an infectious disease specialist and

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then owned a hospice on the on the side

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um so he was indicted and we can talk

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about uh what how the the steps that

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that led up to his indictment but he was

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indicted for healthcare fraud you know a

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lot of uh federal indictments these days

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they've got a lot of legal theories um

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it's it's sort sort of typical in a

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healthcare case that you'll see not just

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Healthcare fraud but also conspiracy

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counts um and Kickback statute

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violations false statements sometimes

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you'll see aggravated identity theft but

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here this was very wow yeah that's

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that's that's modern identity theft I

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won't go down that rabbit hole like what

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is that but okay that that can be a

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followup followup podcast mag uh the

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people will will be emailing requesting

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that followup for sure no um but here

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this is this was a simple one just

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Healthcare fraud but it's a the losses

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here are large for for a hospice uh $62

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million build $47 million paid in what

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the what the government claims as

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fraudulent conduct there were several

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theories of wrongdoing the main one that

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we should focus on is that Dr akula was

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essentially accused of having the

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hospice Auto enroll patients in Gip or

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general inpatient care people who just

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didn't need Gip for at least according

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to um at least according to government

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what the what the justice department

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says general inpatient care is and they

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spent a lot of time explaining this and

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how it Rel how General impatient care

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relates to respit care in the hospice

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setting the justice department said that

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General impatient care should rarely be

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used by hospices and really only when

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there's you know pain control or symptom

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management issues that can't be provided

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in anything but impatient care and doj

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is careful to contrast that with respit

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care which it says is for the you know

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the occasional relief of family members

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who are caring for a patient at home

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over a long period of time they just

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need a break but the big distinction

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that the justice department draws

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between those two uh is that um is that

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Medicare reimburses very differently for

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those two so the justi Department says

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that during the time Dr aulu was pushing

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General impatient uh care Medicare was

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paying around $170 per day for respit

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care but over $700 per day for General

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impatient care and according to the

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justice department that's why Dr Kula

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was enrolling patients in general

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inpatient care it was to essentially

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like 4X his Medicare payments yeah now

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now that's doj's allegations of how

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General inpatient care works and and you

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know to be honest that makes sense to me

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it's you know it should be rare because

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you think about patients being wanting

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to you know want to be at home as

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they're going through that process and

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and everything but I'm curious what

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what's your experience with General

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impatient care how do you advise clients

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when it comes to when it when it comes

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to that yeah well I think that that it

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is rare and there's actually you know a

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cap for overall General impatient care

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it's like no more than I think 20% of

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your days can be Gip no one in my nearly

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25 years have I ever heard have gone

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over the Gip cap um and I think if you

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were going over the GP cap which I

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wonder like you know given this was

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probably a pretty small program and

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that's a lot of GP billing like I wonder

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if there was a Gip cap issue there but

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um you know it is

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rare well I I guess I wouldn't say rare

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I think that it's possible that people

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may need that care I think there's a a

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lot a push pull right now with the

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government the oig is doing a big um Gip

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audit there's a lot of tpe going on for

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GI and I think that

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there this is not in the false claim

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context but some level of Disconnect

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between what the government thinks

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qualifies for Gip and what hospices

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think covers Gip and what the regulation

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say because sometimes when you deal with

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medical review of Gip it's sort of like

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oh today's Monday they would be eligible

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for Gip and then they're not eligible

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Tuesday but then they're eligible

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Wednesday and it's like no that's not

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you know how this would work because you

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know usually

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people it could be a step down from a

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hospital or you know they they're having

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it um you know you're trying other

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things in the home that just aren't

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getting those symptoms under control

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you're not going to send someone back

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home if there symptoms

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okay you're not screaming out in pain

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for an hour I'm not going to like send

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you home hour two right like you're

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gonna you got to see if that holds and

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stuff and so I think there there's real

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tension about how that looks and then I

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mean we've used this case on a number of

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occasions in advocacy like people

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denying Gip when someone is vomiting

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feces like that's not a normal

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occurrence so like you think the family

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could handle that in home so I think

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what is

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unfortunate is there's a lot of I think

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valid Gip going on that is getting

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denied and then you have someone like

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this where it's like you know this

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person's so off the rails why is

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everyone getting you know all this

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scrutiny and they're not doing you know

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this and you know I think that that is

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always people listening to this will be

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like oh this clearly it wasn't a good

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idea what this guy was doing and I'm not

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doing that why do I keep getting you

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know this kind of scrutiny and you know

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for this hospice it sounds like this was

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going on for a long period of time you

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know and it's like I think everyone's

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like go have edit government like go get

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those folks um but anyway it's I think

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interesting when you look at these cases

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um you know the claims were we're

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talking about this is

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2014 right some of this stuff I mean

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this stuff is old old I mean and when

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you think about hospice like that feels

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like ancient history Ancient Ancient you

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know um and so but but I you know so I

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think most people will be like yeah that

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seems really weird that you know so many

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people would be on GP and it it seems

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like the government really feels like

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this was respit level of care like there

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was maybe relief of the family but it it

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was relief of the family from more

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custodial care than actually acute acute

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skilled care that was needed but but

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anyway so so this goes to

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trial um Jonathan so this wasn't a

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settlement case right this went to trial

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correct so which you know oftentimes

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things are settled so that's a little

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bit are were you surprised is that this

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you

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know because you and maybe for our

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listeners who forgot you were at doj for

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quite some time and did Health Care

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cases and so you have sort of a unique

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Insight because it's not like how how

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many of your cases really went to trial

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I mean trial is such a rare thing in

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litigation right yeah Tri trials are are

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definitely rare um you know the the the

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justice department has a really high

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percentage of of winning cases that that

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they indict um and and so yeah the the

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vast majority of criminal cases are

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going to plead out and even more than

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that on the false claims act side for a

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lot of reasons those are going to

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resolve prior to trial so the these

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trials are are actually very very rare

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and so was this a criminal case Jonathan

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yes yes this was a yeah this was a a

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criminal conviction um above and be it

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so there was Al also a false claims act

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keam which we can talk about um but in

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addition to the keam this was a this was

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a criminal case Dr Kulu was uh was

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indicted so there was a third- party

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whistleblower which is what got the

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government in the door to begin with

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because they so the government didn't

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flag this on their own it was The

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Whistleblower that brought this that

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that's exactly that that's exactly it so

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there's actually this case has really

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interesting history that we could

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probably learn a lot from so there's a

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routine audit back in

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2014 um that the you know the Mac did

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and and there was a 100% failure rate

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for this hospice after that 100% failure

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rate apparently Dr koua just kept doing

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what he was doing uh exactly what what

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the audit failed him for he just kept

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doing the exact same thing according to

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the justice department and then a a few

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years after that he one of his employees

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filed a keam so the way keams work Meg

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and and and you know this but some of

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our listeners may not um keams are filed

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under seal in Federal cour Court no one

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knows about the existence of that keam

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except the the court the um the the

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person who filed it um and the justice

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department now the justice department

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then investigates for however long they

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want to investigate for or however long

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the courts will let them investigate and

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then they'll make a decision whether to

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take the case or not take the case so in

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this particular case the Kean was filed

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seven years ago um and for four years

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uh Dr aula had no idea that the whistle

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00:11:32,120 --> 00:11:36,680
that the that the that the keam had been

266
00:11:33,959 --> 00:11:41,040
filed for four years The Whistleblower

267
00:11:36,680 --> 00:11:44,279
continues to work for the hospice wow in

268
00:11:41,040 --> 00:11:46,839
those four years she took documents FBI

269
00:11:44,279 --> 00:11:50,240
had her make recorded phone calls to Dr

270
00:11:46,839 --> 00:11:53,160
aula and at one point it appears she

271
00:11:50,240 --> 00:11:57,639
even you know shook Dr aula down for

272
00:11:53,160 --> 00:11:59,920
some money um just bizarre uh bizarre

273
00:11:57,639 --> 00:12:02,959
facts here but the FBI investigation

274
00:11:59,920 --> 00:12:05,160
took a really long time and Dr aulu was

275
00:12:02,959 --> 00:12:08,320
actually finally indicted in

276
00:12:05,160 --> 00:12:10,560
2021 uh for for these for these charges

277
00:12:08,320 --> 00:12:13,600
holy cats

278
00:12:10,560 --> 00:12:17,120
so and maybe this isn't something you

279
00:12:13,600 --> 00:12:18,120
know but like is that I guess when we've

280
00:12:17,120 --> 00:12:20,880
dealt with

281
00:12:18,120 --> 00:12:23,760
whistleblowers oftentimes it's like a

282
00:12:20,880 --> 00:12:25,600
former employee or something I mean

283
00:12:23,760 --> 00:12:28,199
because the thing that might be rattling

284
00:12:25,600 --> 00:12:30,040
people hearing this like getting anxious

285
00:12:28,199 --> 00:12:33,519
like you're always being recorded by

286
00:12:30,040 --> 00:12:36,519
your employees but is that common when

287
00:12:33,519 --> 00:12:38,279
someone files a keyan that then they are

288
00:12:36,519 --> 00:12:40,880
then cooperating with the government

289
00:12:38,279 --> 00:12:43,120
like I guess Where's the Line there that

290
00:12:40,880 --> 00:12:44,199
like you're now an informant so you C

291
00:12:43,120 --> 00:12:47,880
like I'm

292
00:12:44,199 --> 00:12:51,519
thinking again TV show here like I'm

293
00:12:47,880 --> 00:12:54,480
wearing a wi like is that like if I file

294
00:12:51,519 --> 00:12:56,680
a whistleblower am I required to do

295
00:12:54,480 --> 00:12:59,360
these things the government wants or am

296
00:12:56,680 --> 00:13:00,680
I sort of a willing like oh I could or

297
00:12:59,360 --> 00:13:03,519
could not I

298
00:13:00,680 --> 00:13:06,360
mean yeah good good question it it it

299
00:13:03,519 --> 00:13:09,560
dep it largely depends so whistleblowers

300
00:13:06,360 --> 00:13:11,519
are tremendously incentivized to do what

301
00:13:09,560 --> 00:13:14,560
the government wants them to do um you

302
00:13:11,519 --> 00:13:16,639
know they most whistleblowers when

303
00:13:14,560 --> 00:13:18,399
they're filing a keam they want the

304
00:13:16,639 --> 00:13:19,760
government to take the case their cases

305
00:13:18,399 --> 00:13:21,279
are always going to be stronger when

306
00:13:19,760 --> 00:13:23,440
it's the government saying that person

307
00:13:21,279 --> 00:13:24,920
over there committed fraud rather than

308
00:13:23,440 --> 00:13:27,079
if the government says Ah we really

309
00:13:24,920 --> 00:13:29,279
don't like this case and it's you know a

310
00:13:27,079 --> 00:13:30,839
private attorney saying that that fraud

311
00:13:29,279 --> 00:13:32,959
it's always stronger when the government

312
00:13:30,839 --> 00:13:35,240
is is making the the argument that

313
00:13:32,959 --> 00:13:37,079
there's fraud so they they want to be

314
00:13:35,240 --> 00:13:39,160
all you know 10 times out of 10 The

315
00:13:37,079 --> 00:13:40,720
Whistleblower wants to be really

316
00:13:39,160 --> 00:13:42,320
Cooperative with the government if the

317
00:13:40,720 --> 00:13:43,760
government wants them to make record

318
00:13:42,320 --> 00:13:45,720
recorded phone calls they're going to

319
00:13:43,760 --> 00:13:47,160
make recorded phone calls if they if the

320
00:13:45,720 --> 00:13:50,720
government wants them to go in and take

321
00:13:47,160 --> 00:13:52,920
documents which is a different issue um

322
00:13:50,720 --> 00:13:54,959
and is a lot more complex it's a longer

323
00:13:52,920 --> 00:13:55,920
conversation but you know they're

324
00:13:54,959 --> 00:13:57,040
they're going to go do what the

325
00:13:55,920 --> 00:13:58,040
government tells them to do they're

326
00:13:57,040 --> 00:13:59,480
going to go take the documents they're

327
00:13:58,040 --> 00:14:01,320
going to make record phone calls they're

328
00:13:59,480 --> 00:14:03,279
going to do whatever they can to make

329
00:14:01,320 --> 00:14:05,560
that case good because they know at the

330
00:14:03,279 --> 00:14:07,680
end of this if you settle for a million

331
00:14:05,560 --> 00:14:09,959
dollars you're going to get you know six

332
00:14:07,680 --> 00:14:11,560
figures out of it for sure and so

333
00:14:09,959 --> 00:14:13,680
they're they're wanting to be helpful

334
00:14:11,560 --> 00:14:16,639
they're wanting the case to go well W

335
00:14:13,680 --> 00:14:19,560
this is like a movie Jonathan I'm just

336
00:14:16,639 --> 00:14:22,920
thinking about we could turn this into a

337
00:14:19,560 --> 00:14:27,240
screenplay by by dozens of people yeah

338
00:14:22,920 --> 00:14:30,560
yes in my retirement I'll start yeah my

339
00:14:27,240 --> 00:14:32,959
all the crazy stories that went on so

340
00:14:30,560 --> 00:14:36,240
okay obviously they're building a very

341
00:14:32,959 --> 00:14:39,279
very strong case and maybe one side note

342
00:14:36,240 --> 00:14:42,079
too since this is a criminal case you

343
00:14:39,279 --> 00:14:45,560
know and the whistleblower's interest is

344
00:14:42,079 --> 00:14:50,040
at least maybe partly money here I

345
00:14:45,560 --> 00:14:53,079
mean obviously he's going to jail right

346
00:14:50,040 --> 00:14:55,360
um but is there money to collect here I

347
00:14:53,079 --> 00:14:57,399
mean is I mean obviously we want Bad

348
00:14:55,360 --> 00:15:01,000
actors out of the program and now he's

349
00:14:57,399 --> 00:15:04,040
going to jail like is it hard to recoup

350
00:15:01,000 --> 00:15:06,800
the because how much is the repayment

351
00:15:04,040 --> 00:15:08,360
back yeah that and that's actually so I

352
00:15:06,800 --> 00:15:10,639
glanced right before we recorded this I

353
00:15:08,360 --> 00:15:12,720
glanced at the at the docket and and

354
00:15:10,639 --> 00:15:16,480
there they're apparently the government

355
00:15:12,720 --> 00:15:18,839
and Dr aula are fighting over over money

356
00:15:16,480 --> 00:15:22,639
okay the government's worried that uh

357
00:15:18,839 --> 00:15:23,839
that Dr aula is is uh is moving assets

358
00:15:22,639 --> 00:15:26,079
which you're not supposed to do once

359
00:15:23,839 --> 00:15:27,839
you've been indicted that's usually part

360
00:15:26,079 --> 00:15:29,600
of the some standard conditions of of

361
00:15:27,839 --> 00:15:31,199
release on bond is that you you tell the

362
00:15:29,600 --> 00:15:34,000
government before you're going to move

363
00:15:31,199 --> 00:15:35,880
move funds around um and so there yeah

364
00:15:34,000 --> 00:15:37,720
the the the the big question here is how

365
00:15:35,880 --> 00:15:40,319
much money is left a lot of times in

366
00:15:37,720 --> 00:15:42,959
these cases the lawyers uh get a a

367
00:15:40,319 --> 00:15:44,240
decent chunk of a decent chunk of change

368
00:15:42,959 --> 00:15:46,759
sometimes there's not a lot of money

369
00:15:44,240 --> 00:15:48,360
left over um so yeah that that that

370
00:15:46,759 --> 00:15:50,079
largely depends on on what the

371
00:15:48,360 --> 00:15:51,639
defendant's financial situation is but

372
00:15:50,079 --> 00:15:53,560
yeah that's that's usually a factor is

373
00:15:51,639 --> 00:15:56,800
is there going to be money left over so

374
00:15:53,560 --> 00:16:01,319
The Whistleblower even if they could get

375
00:15:56,800 --> 00:16:03,800
whatever 30% they're might not be 30% of

376
00:16:01,319 --> 00:16:05,920
zero is zero yeah you can get a really

377
00:16:03,800 --> 00:16:07,680
nice judgment I I I I guess that you'll

378
00:16:05,920 --> 00:16:09,079
never that you'll never collect on it'll

379
00:16:07,680 --> 00:16:11,920
be very impressive you could get a big

380
00:16:09,079 --> 00:16:13,279
fake check uh to yourself but but you

381
00:16:11,920 --> 00:16:16,560
yeah you won't actually collect anything

382
00:16:13,279 --> 00:16:19,720
if there's no money left over okay so so

383
00:16:16,560 --> 00:16:24,240
all of those recorded phone calls and

384
00:16:19,720 --> 00:16:27,120
blah blah blah okay wow what what um

385
00:16:24,240 --> 00:16:29,040
what a story here so obviously there's

386
00:16:27,120 --> 00:16:31,000
no settlement which seems sort of

387
00:16:29,040 --> 00:16:33,240
strange if you have recorded phone calls

388
00:16:31,000 --> 00:16:36,800
and all these other things but okay so

389
00:16:33,240 --> 00:16:39,160
no settlement you're going to trial so

390
00:16:36,800 --> 00:16:41,319
what what do they have to prove at trial

391
00:16:39,160 --> 00:16:44,720
since this is a criminal healthc care

392
00:16:41,319 --> 00:16:47,680
fraud case yeah so most of our cases Meg

393
00:16:44,720 --> 00:16:49,800
and the hospice um industry are civil

394
00:16:47,680 --> 00:16:51,959
under the false claims act yes civil

395
00:16:49,800 --> 00:16:53,480
cases have a really low burden it's it's

396
00:16:51,959 --> 00:16:56,360
what's called a prance of the evidence

397
00:16:53,480 --> 00:16:58,240
is is essentially 50% plus one little

398
00:16:56,360 --> 00:17:02,040
little bit just a little bit more than

399
00:16:58,240 --> 00:17:03,880
50 % the criminal burden is amazingly uh

400
00:17:02,040 --> 00:17:06,000
you know high it's it's beyond a

401
00:17:03,880 --> 00:17:07,799
reasonable doubt you have to show with

402
00:17:06,000 --> 00:17:09,520
with a fraud count you have to show

403
00:17:07,799 --> 00:17:12,919
intent to Def fraud you have to show

404
00:17:09,520 --> 00:17:14,760
willfulness um so you know Dr aulu was

405
00:17:12,919 --> 00:17:17,199
his jury was instructed that to convict

406
00:17:14,760 --> 00:17:18,919
him they had to find Beyond a reasonable

407
00:17:17,199 --> 00:17:22,199
doubt that he had like this bad purpose

408
00:17:18,919 --> 00:17:25,400
this intent to actually cause harm to

409
00:17:22,199 --> 00:17:27,439
Medicare and and and the big thing is a

410
00:17:25,400 --> 00:17:29,280
mere misunderstanding of you know the

411
00:17:27,439 --> 00:17:30,720
technical points of a CPT code that's

412
00:17:29,280 --> 00:17:33,280
that's really not enough to show bad

413
00:17:30,720 --> 00:17:36,160
intent and the way doj went about

414
00:17:33,280 --> 00:17:39,480
clearing that really high bar at trial

415
00:17:36,160 --> 00:17:41,760
was a was mainly through uh Witnesses so

416
00:17:39,480 --> 00:17:44,160
they had a bunch of Dr Kula former

417
00:17:41,760 --> 00:17:45,880
employees testify against him one

418
00:17:44,160 --> 00:17:47,400
witness was a medical director who

419
00:17:45,880 --> 00:17:49,559
testified that he had charted that

420
00:17:47,400 --> 00:17:52,520
patients were stable but then someone

421
00:17:49,559 --> 00:17:54,440
else went in and changed the charts to

422
00:17:52,520 --> 00:17:58,559
distressed and I guess that was to

423
00:17:54,440 --> 00:18:00,919
support impatient um Services um so that

424
00:17:58,559 --> 00:18:02,559
was a you know that's don't if you're a

425
00:18:00,919 --> 00:18:05,360
hospice listening don't go in and change

426
00:18:02,559 --> 00:18:08,039
your medical director's uh charts to to

427
00:18:05,360 --> 00:18:09,799
support fraud um another witness was a

428
00:18:08,039 --> 00:18:12,000
former employee who testified that she

429
00:18:09,799 --> 00:18:13,760
told Dr aula directly that they were

430
00:18:12,000 --> 00:18:15,760
treating patients who didn't qualify for

431
00:18:13,760 --> 00:18:17,799
hospice you had the Whistleblower

432
00:18:15,760 --> 00:18:19,720
herself the one who filed the keam she

433
00:18:17,799 --> 00:18:22,600
testified against Dr koua and then the

434
00:18:19,720 --> 00:18:24,440
hospice administrator testified and was

435
00:18:22,600 --> 00:18:27,960
probably one of the key Witnesses

436
00:18:24,440 --> 00:18:29,640
against drula the media I I read some

437
00:18:27,960 --> 00:18:31,679
media reports on this that said that the

438
00:18:29,640 --> 00:18:33,799
administrator previously plad guilty to

439
00:18:31,679 --> 00:18:35,919
a felony I couldn't find that anywhere

440
00:18:33,799 --> 00:18:38,440
but apparently what she pled to was that

441
00:18:35,919 --> 00:18:41,400
she changed patients charts to qualify

442
00:18:38,440 --> 00:18:43,559
for them to for Gip and that's what she

443
00:18:41,400 --> 00:18:47,280
pled to but you know fascinatingly she

444
00:18:43,559 --> 00:18:49,760
wasn't willing to testify that Dr akula

445
00:18:47,280 --> 00:18:51,960
instructed her to change charts it was a

446
00:18:49,760 --> 00:18:55,240
really complicated story it sounds like

447
00:18:51,960 --> 00:18:57,960
not very not very clear sort of like an

448
00:18:55,240 --> 00:19:00,400
indirect pressure thing but you know

449
00:18:57,960 --> 00:19:02,200
based on court filings and media reports

450
00:19:00,400 --> 00:19:04,240
I'm actually a little underwhelmed with

451
00:19:02,200 --> 00:19:08,440
the government's evidence against Dr

452
00:19:04,240 --> 00:19:11,440
aula the the case appears to be that one

453
00:19:08,440 --> 00:19:14,480
Dr koua had Direct control over billing

454
00:19:11,440 --> 00:19:18,000
that's that's important um two the audit

455
00:19:14,480 --> 00:19:20,039
where the hospice 100% failed that that

456
00:19:18,000 --> 00:19:23,280
put Dr koua notice that the billing was

457
00:19:20,039 --> 00:19:25,240
wrong three Dr Kula signed that standard

458
00:19:23,280 --> 00:19:27,000
Medicare enrollment paperwork that that

459
00:19:25,240 --> 00:19:28,919
put him on notice that he's got it which

460
00:19:27,000 --> 00:19:31,559
is you know I think it's always a bit

461
00:19:28,919 --> 00:19:34,240
nuts yeah and then four that Dr aula as

462
00:19:31,559 --> 00:19:36,640
the owner was the one who financially

463
00:19:34,240 --> 00:19:39,039
benefited from submitting these improper

464
00:19:36,640 --> 00:19:42,440
claims instead of claims for for respit

465
00:19:39,039 --> 00:19:44,280
care um that evidence is not all that

466
00:19:42,440 --> 00:19:46,320
strong as far as Federal criminal cases

467
00:19:44,280 --> 00:19:48,760
Go part of part of what the government

468
00:19:46,320 --> 00:19:51,159
needed to prove was intent to defraud

469
00:19:48,760 --> 00:19:53,919
that's like a you know a bad or evil

470
00:19:51,159 --> 00:19:56,240
mindset I don't see evil in that

471
00:19:53,919 --> 00:19:58,320
evidence necessarily A lot of that is

472
00:19:56,240 --> 00:20:00,159
like should have known evidence which is

473
00:19:58,320 --> 00:20:01,159
not enough in a in a criminal trial

474
00:20:00,159 --> 00:20:02,760
what's interesting is the government

475
00:20:01,159 --> 00:20:05,480
filed a pleading in December that

476
00:20:02,760 --> 00:20:08,400
addresses that intented of fraud problem

477
00:20:05,480 --> 00:20:10,880
and their position is pretty unusual the

478
00:20:08,400 --> 00:20:15,120
prosecutors say that the nature of the

479
00:20:10,880 --> 00:20:17,280
scheme is quote not a fraud that could

480
00:20:15,120 --> 00:20:18,799
have been committed accidentally or

481
00:20:17,280 --> 00:20:21,039
negligently

482
00:20:18,799 --> 00:20:23,080
unquote I'll be honest I don't love that

483
00:20:21,039 --> 00:20:26,360
argument from the justice department I

484
00:20:23,080 --> 00:20:28,919
um CPT codes are are really hard Meg and

485
00:20:26,360 --> 00:20:30,600
people get CPT codes wrong

486
00:20:28,919 --> 00:20:32,600
all the time on accident or through

487
00:20:30,600 --> 00:20:34,840
negligence sometimes intentionally you

488
00:20:32,600 --> 00:20:37,000
know intentionally is is fraud but

489
00:20:34,840 --> 00:20:39,159
accidental or negligent doesn't mean

490
00:20:37,000 --> 00:20:41,960
fraud so to me that's just a bad

491
00:20:39,159 --> 00:20:43,960
argument by by the justice department um

492
00:20:41,960 --> 00:20:46,000
in addition to the you know CPT codes

493
00:20:43,960 --> 00:20:47,480
can't be accidental or negligent

494
00:20:46,000 --> 00:20:49,320
argument the prosecutors pointed to

495
00:20:47,480 --> 00:20:52,360
witness testimony that billing for

496
00:20:49,320 --> 00:20:54,679
impatient care is unusual in hospice but

497
00:20:52,360 --> 00:20:56,360
that doesn't remotely say the drula you

498
00:20:54,679 --> 00:20:58,520
know knew that it was wrong it just

499
00:20:56,360 --> 00:21:00,039
means that it's like objectively wrong

500
00:20:58,520 --> 00:21:02,039
for for people in the industry if you

501
00:21:00,039 --> 00:21:04,840
had that that knowledge so the evidence

502
00:21:02,039 --> 00:21:06,919
at least from my limited vantage point

503
00:21:04,840 --> 00:21:08,320
doesn't appear to be all that strong

504
00:21:06,919 --> 00:21:09,799
relative to what I'm used to seeing in

505
00:21:08,320 --> 00:21:13,720
criminal Healthcare fraud cases but the

506
00:21:09,799 --> 00:21:15,520
jury still unanimously convicted um Dr

507
00:21:13,720 --> 00:21:18,080
aula of healthcare fraud it did so

508
00:21:15,520 --> 00:21:20,840
rather quickly um yeah under two hours

509
00:21:18,080 --> 00:21:22,400
of deliberation which is which is quick

510
00:21:20,840 --> 00:21:24,520
uh I'm not saying that it's the wrong

511
00:21:22,400 --> 00:21:27,320
decision um just that the evidence was

512
00:21:24,520 --> 00:21:29,440
not overwhelming to to me Knowledge from

513
00:21:27,320 --> 00:21:30,840
that audit was was probably a big deal

514
00:21:29,440 --> 00:21:32,679
control of billing was probably a big

515
00:21:30,840 --> 00:21:34,679
deal profit definitely a big deal to the

516
00:21:32,679 --> 00:21:36,279
jury um a lot of juries are going to

517
00:21:34,679 --> 00:21:38,520
vote to convict based with with just

518
00:21:36,279 --> 00:21:40,039
those three and it did here uh so now

519
00:21:38,520 --> 00:21:42,799
he'll be sent it sometime later this

520
00:21:40,039 --> 00:21:45,000
year um once the you know Court does all

521
00:21:42,799 --> 00:21:47,080
the full report on the conduct and the

522
00:21:45,000 --> 00:21:51,039
factors and and everything uh but it'll

523
00:21:47,080 --> 00:21:53,400
be a a long process for for that wow see

524
00:21:51,039 --> 00:21:56,520
this is why you're a defense attorney

525
00:21:53,400 --> 00:21:58,320
now it is just like when you know and

526
00:21:56,520 --> 00:22:00,880
I'm not a criminal defense lawyer but

527
00:21:58,320 --> 00:22:03,760
it's like oh geez someone's got you

528
00:22:00,880 --> 00:22:05,679
recording I mean who knows what my guess

529
00:22:03,760 --> 00:22:07,559
is if you're trying to record someone

530
00:22:05,679 --> 00:22:10,000
get them to admit something you have to

531
00:22:07,559 --> 00:22:11,840
there needs to be some subtlety so

532
00:22:10,000 --> 00:22:16,080
someone doesn't think that they they're

533
00:22:11,840 --> 00:22:21,000
being recorded and so but but I I mean I

534
00:22:16,080 --> 00:22:24,360
I I do think like this just

535
00:22:21,000 --> 00:22:28,720
well I think a lot of things I think

536
00:22:24,360 --> 00:22:31,080
your point about the um you know the

537
00:22:28,720 --> 00:22:34,080
medical review and they had 100% error

538
00:22:31,080 --> 00:22:36,520
rate now this is you know different

539
00:22:34,080 --> 00:22:39,240
circumstances but so

540
00:22:36,520 --> 00:22:40,520
often um people have high error rates

541
00:22:39,240 --> 00:22:41,919
and then you go through the appeal

542
00:22:40,520 --> 00:22:44,400
process and then you get everything

543
00:22:41,919 --> 00:22:46,240
overturned and so my guesses they

544
00:22:44,400 --> 00:22:47,720
weren't appealing these claim denials or

545
00:22:46,240 --> 00:22:50,080
whatever you just sort of took it and

546
00:22:47,720 --> 00:22:52,960
went away you know and went on doing

547
00:22:50,080 --> 00:22:55,919
whatever but I I just think that you

548
00:22:52,960 --> 00:22:58,600
know all of us have a lot of concern

549
00:22:55,919 --> 00:23:00,559
where you look at the beginning of the

550
00:22:58,600 --> 00:23:03,559
story and then you don't see like well

551
00:23:00,559 --> 00:23:05,640
did any of that stuff get upheld um

552
00:23:03,559 --> 00:23:08,440
again I'm sure here they just sort of

553
00:23:05,640 --> 00:23:10,120
took their lumps and then as you said

554
00:23:08,440 --> 00:23:12,799
just kept on doing whatever they were

555
00:23:10,120 --> 00:23:14,960
doing as opposed to you know oh look at

556
00:23:12,799 --> 00:23:18,200
I proved the government wrong and got

557
00:23:14,960 --> 00:23:20,400
all these denials overturned just so you

558
00:23:18,200 --> 00:23:22,480
know listeners aren't thinking like oh

559
00:23:20,400 --> 00:23:26,360
geez I had a really high error raid and

560
00:23:22,480 --> 00:23:28,640
some tpe or even a upic I mean that the

561
00:23:26,360 --> 00:23:31,400
government from a you know criminal

562
00:23:28,640 --> 00:23:34,960
fraud perspective isn't just looking

563
00:23:31,400 --> 00:23:37,320
like oh you had a bad tpe result you

564
00:23:34,960 --> 00:23:39,400
know they're also that's not going to

565
00:23:37,320 --> 00:23:41,679
necessarily get you in the fraud realm I

566
00:23:39,400 --> 00:23:45,200
mean here my guess is it was really high

567
00:23:41,679 --> 00:23:47,679
you never contested it right and so when

568
00:23:45,200 --> 00:23:50,320
we work with clients it's always very

569
00:23:47,679 --> 00:23:52,320
important to do at least a first round

570
00:23:50,320 --> 00:23:54,840
defense on things so it doesn't look

571
00:23:52,320 --> 00:23:57,600
like an admission that you agree with

572
00:23:54,840 --> 00:24:00,039
denials sometimes the cost benefit isn't

573
00:23:57,600 --> 00:24:02,039
there from a money standpoint I mean

574
00:24:00,039 --> 00:24:04,679
here it was probably worth a fair amount

575
00:24:02,039 --> 00:24:07,159
of money but you know if it's certain

576
00:24:04,679 --> 00:24:08,919
claims are denied I mean hiring lawyers

577
00:24:07,159 --> 00:24:11,360
and doing all this stuff and going

578
00:24:08,919 --> 00:24:13,039
through a four level appeal process

579
00:24:11,360 --> 00:24:14,480
costs a lot of money and so some people

580
00:24:13,039 --> 00:24:16,279
will be like I'm not going to keep

581
00:24:14,480 --> 00:24:19,440
throwing money after this I'll just sort

582
00:24:16,279 --> 00:24:22,400
of move on but I I think it you know

583
00:24:19,440 --> 00:24:24,320
always a good reminder that you know the

584
00:24:22,400 --> 00:24:27,520
government's going to look at that error

585
00:24:24,320 --> 00:24:29,600
rate and you want to be able to say at a

586
00:24:27,520 --> 00:24:32,520
minimum you went on the record about why

587
00:24:29,600 --> 00:24:34,640
you disagreed with step um as opposed to

588
00:24:32,520 --> 00:24:38,039
just because doing nothing makes it seem

589
00:24:34,640 --> 00:24:40,480
like I agree and this is an admission

590
00:24:38,039 --> 00:24:42,080
that that this isn't right yeah and

591
00:24:40,480 --> 00:24:43,799
that's the big takeaway Maggie is is you

592
00:24:42,080 --> 00:24:45,840
got to take audit seriously I mean one

593
00:24:43,799 --> 00:24:47,679
of the hardest jobs of that a federal

594
00:24:45,840 --> 00:24:50,520
prosecutor has is to show what a

595
00:24:47,679 --> 00:24:53,480
defendant thought in a given moment that

596
00:24:50,520 --> 00:24:55,520
audit in 2014 effectively put Dr aula on

597
00:24:53,480 --> 00:24:57,880
notice that he had done something wrong

598
00:24:55,520 --> 00:24:58,919
and by just plugging away billing away

599
00:24:57,880 --> 00:25:01,039
as though nothing had happened he took

600
00:24:58,919 --> 00:25:03,679
on a ton of risk that ended up getting

601
00:25:01,039 --> 00:25:06,000
him prosecuted I don't I that that audit

602
00:25:03,679 --> 00:25:07,600
to me is sort of critical to showing

603
00:25:06,000 --> 00:25:09,600
that he knew what he was doing was wrong

604
00:25:07,600 --> 00:25:12,159
and I don't think he's getting indicted

605
00:25:09,600 --> 00:25:13,279
without that audit so you know jurors

606
00:25:12,159 --> 00:25:15,679
oftentimes they're going to reduce

607
00:25:13,279 --> 00:25:17,480
things down to simple Concepts and that

608
00:25:15,679 --> 00:25:19,360
simple concept is that the audit told

609
00:25:17,480 --> 00:25:22,279
him not to do it and he did it anyway

610
00:25:19,360 --> 00:25:24,600
and $47 million later you know that's

611
00:25:22,279 --> 00:25:26,000
not a J's not going to say that that's

612
00:25:24,600 --> 00:25:28,399
an okay thing they're going to do

613
00:25:26,000 --> 00:25:30,480
something about it so um if your audit

614
00:25:28,399 --> 00:25:32,039
comes back with a 100% failure rate you

615
00:25:30,480 --> 00:25:33,559
gotta either exactly what you said Meg

616
00:25:32,039 --> 00:25:36,000
you gotta either contest it you got to

617
00:25:33,559 --> 00:25:37,480
make some changes But continuing on as

618
00:25:36,000 --> 00:25:40,880
if nothing had happened that's just a

619
00:25:37,480 --> 00:25:43,720
bad idea oh it's just a costume business

620
00:25:40,880 --> 00:25:48,039
I'll just keep keep you know plugging

621
00:25:43,720 --> 00:25:52,080
along um but but I do think in the audit

622
00:25:48,039 --> 00:25:56,760
activity is so um Fast and Furious right

623
00:25:52,080 --> 00:26:00,559
now it is really important to you know

624
00:25:56,760 --> 00:26:01,840
put your best foot forward and and not

625
00:26:00,559 --> 00:26:04,520
just say

626
00:26:01,840 --> 00:26:07,000
well and I would think most people are

627
00:26:04,520 --> 00:26:10,000
not doing this um at least folks that we

628
00:26:07,000 --> 00:26:12,440
work with like well you know I guess

629
00:26:10,000 --> 00:26:14,440
I'll just change things going forward

630
00:26:12,440 --> 00:26:16,279
and it's like yeah but you still want to

631
00:26:14,440 --> 00:26:18,200
get on the record that you disagree with

632
00:26:16,279 --> 00:26:20,240
this and there's a reasonable basis for

633
00:26:18,200 --> 00:26:21,640
why you did what you did and what you

634
00:26:20,240 --> 00:26:23,000
thought you were doing right when you

635
00:26:21,640 --> 00:26:25,799
submitted this claim you thought it was

636
00:26:23,000 --> 00:26:28,679
billable well why right like you have

637
00:26:25,799 --> 00:26:31,760
documentation to support that and as we

638
00:26:28,679 --> 00:26:36,760
all know um you know the clinical

639
00:26:31,760 --> 00:26:40,159
decision making for hospice is you know

640
00:26:36,760 --> 00:26:43,120
inexact right I mean Gip is also a

641
00:26:40,159 --> 00:26:46,080
somewhat fuzzy standard right like could

642
00:26:43,120 --> 00:26:48,760
this be manage at the home well maybe it

643
00:26:46,080 --> 00:26:50,640
depends on you know what resources you

644
00:26:48,760 --> 00:26:53,200
have and I mean there's a lot that goes

645
00:26:50,640 --> 00:26:56,840
into you know these different things and

646
00:26:53,200 --> 00:26:58,720
so um think if you're billing something

647
00:26:56,840 --> 00:27:01,080
most people

648
00:26:58,720 --> 00:27:03,799
have a basis right The Physician ordered

649
00:27:01,080 --> 00:27:07,039
that level of care right they thought it

650
00:27:03,799 --> 00:27:09,520
was medically necessary and then they're

651
00:27:07,039 --> 00:27:11,840
reviewing it you know on a daily basis

652
00:27:09,520 --> 00:27:14,520
most people and so um I think you're

653
00:27:11,840 --> 00:27:17,320
you're right and it's a reminder that

654
00:27:14,520 --> 00:27:19,480
not like this is going to be the end

655
00:27:17,320 --> 00:27:21,880
result for people who get a bad audit

656
00:27:19,480 --> 00:27:25,480
they're going to get criminally you know

657
00:27:21,880 --> 00:27:27,840
criminally indicted but I I just think

658
00:27:25,480 --> 00:27:29,960
you know bringing it back to what a lot

659
00:27:27,840 --> 00:27:32,440
of people are dealing with is Audits and

660
00:27:29,960 --> 00:27:35,000
taking them seriously because they can

661
00:27:32,440 --> 00:27:38,120
be used in evidence and probably

662
00:27:35,000 --> 00:27:41,120
criminal or civil fraud and so we know

663
00:27:38,120 --> 00:27:45,279
that that that is actually happening but

664
00:27:41,120 --> 00:27:48,000
gez this is just like Intrigue and all

665
00:27:45,279 --> 00:27:50,600
of this it's so mundane now when you're

666
00:27:48,000 --> 00:27:52,919
on this side of the fence right like oh

667
00:27:50,600 --> 00:27:54,840
this is just I can't even imagine when

668
00:27:52,919 --> 00:27:58,399
it's like working for the government you

669
00:27:54,840 --> 00:28:00,880
you know all the things you see

670
00:27:58,399 --> 00:28:03,480
yeah it's exciting on this side too for

671
00:28:00,880 --> 00:28:06,240
sure for sure yeah fewer recorded phone

672
00:28:03,480 --> 00:28:09,720
calls yeah yeah it's just so so

673
00:28:06,240 --> 00:28:11,799
fascinating um when you talk to you know

674
00:28:09,720 --> 00:28:14,279
former government lawyers because you

675
00:28:11,799 --> 00:28:15,799
know folks are always so worried like

676
00:28:14,279 --> 00:28:18,720
something horrible is going to happen to

677
00:28:15,799 --> 00:28:20,760
them and then you're like people just

678
00:28:18,720 --> 00:28:23,919
don't have perspective of the things

679
00:28:20,760 --> 00:28:27,600
that you know people are doing out there

680
00:28:23,919 --> 00:28:29,480
are you know not what people are who are

681
00:28:27,600 --> 00:28:32,039
calling me worried about something it's

682
00:28:29,480 --> 00:28:34,919
like that this is not what is going to

683
00:28:32,039 --> 00:28:38,640
get you in jail or any you know no one

684
00:28:34,919 --> 00:28:40,720
is um so I just think you see a whole

685
00:28:38,640 --> 00:28:44,000
different side of life when you're

686
00:28:40,720 --> 00:28:48,760
working at the government of of strange

687
00:28:44,000 --> 00:28:52,760
Behavior so yeah so well fascinating

688
00:28:48,760 --> 00:28:54,760
case and um I guess it will as you said

689
00:28:52,760 --> 00:28:58,039
take a while to figure out if there's

690
00:28:54,760 --> 00:29:00,320
any money left at the end and

691
00:28:58,039 --> 00:29:02,080
uh what kind of sentence but I would

692
00:29:00,320 --> 00:29:05,760
expect something fairly

693
00:29:02,080 --> 00:29:07,559
Hefty yes so the the loss amount is what

694
00:29:05,760 --> 00:29:09,799
largely drives Federal sentences in

695
00:29:07,559 --> 00:29:12,600
fraud cases and when you're when you're

696
00:29:09,799 --> 00:29:15,360
up in the $40 million range you're yeah

697
00:29:12,600 --> 00:29:18,679
you can expect a large a large

698
00:29:15,360 --> 00:29:23,399
sentence not a happy ending there not at

699
00:29:18,679 --> 00:29:25,919
all for Dr Ula at least anyway well well

700
00:29:23,399 --> 00:29:28,320
thanks for for this

701
00:29:25,919 --> 00:29:31,039
exciting pitch on a

702
00:29:28,320 --> 00:29:34,360
screenplay that just happens to be real

703
00:29:31,039 --> 00:29:37,080
right that's exactly right so but anyway

704
00:29:34,360 --> 00:29:40,200
well thanks as always for for Lending

705
00:29:37,080 --> 00:29:42,440
your expertise and um it's just so great

706
00:29:40,200 --> 00:29:44,240
to have you as part of our team thanks

707
00:29:42,440 --> 00:29:46,559
Meg I appreciate uh appreciate you

708
00:29:44,240 --> 00:29:49,159
letting me on your

709
00:29:46,559 --> 00:29:51,880
team well that's it for today's episode

710
00:29:49,159 --> 00:29:54,080
of hospice insights the lawn Beyond

711
00:29:51,880 --> 00:29:56,159
thank you for joining the conversation

712
00:29:54,080 --> 00:29:59,240
to subscribe to our podcast visit our

713
00:29:56,159 --> 00:30:01,399
website at hush black .c or sign up

714
00:29:59,240 --> 00:30:05,000
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715
00:30:01,399 --> 00:30:05,000
next time, may the wind be at your

716
00:30:06,720 --> 00:30:09,720
back.

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