Small health care providers are under attack by overzealous prosecutors

Monday, October 13, 2014

Small health care providers are under attack by overzealous prosecutors who use non-health care fraud-related statutes to drastically increase the sentencing exposure of providers who have been indicted for garden-variety Medicare fraud. One such case arose in Philadelphia recently where a podiatrist was charged with billing Medicare for $480,000 worth of services she did not furnish. Had the podiatrist only been charged with health care fraud, she might be looking at two-to-three years’ incarceration under the federal sentencing guidelines which the sentencing judge could reduce to non-incarceration or home confinement depending on the podiatrist’s background.

To foreclose the possibility that the podiatrist might not be sent to jail, the prosecutor charged the podiatrist with six-counts of wire fraud, which carries a maximum sentence of 20 years per count— four-times more severe than the counts charging health care fraud where the maximum sentence is just five years per count.

More frightening, by charging the podiatrist with wire fraud, the prosecutor was able to tack on two counts of aggravated identity theft; an offense which calls for a mandatory minimum sentence of two years incarceration consecutive to whatever sentence the podiatrist faces on the wire fraud counts, and up to four years’ mandatory incarceration if the prosecutor asks the judge to run the aggravated identity theft counts consecutively with each other. Because a judge is required to impose a mandatory minimum sentence, the podiatrist faces mandatory jail time regardless of any mitigating circumstances she might present at sentencing. Had the podiatrist only been charged with health care fraud, she would not have faced a mandatory minimum sentence for aggravated identity theft since a defendant cannot be charged with aggravated identity theft in connection with a health care fraud offense.

What did the podiatrist do to warrant such outrageous sentencing exposure? According to the indictment, all the podiatrist did was bill Medicare twice for services she did not furnish to two of her patients using the patients’ Medicare Provider numbers. Without passing judgment on the merits of the case, this garden variety Medicare fraud has turned into a bludgeon the prosecutor undoubtedly will use to force the podiatrist to forgo her right to trial and plead guilty to avoid the prospect of receiving a draconian mandatory sentence —another example of prosecutorial overcharging to force defendants to give up their Fifth and Sixth Amendment rights to due process and a fair trial