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Prescribing Unnecessary Treatments and Procedures

According to the Centers for Medicare & Medicaid Services (CMS), “Medicare coverage is limited to items and services that are reasonable and necessary for the diagnosis or treatment of an illness or injury (and within the scope of a Medicare benefit category).” Medicare has an established process for making National coverage determinations (NCDs), and in addition, items and services may also be covered at the discretion of Medicare contractors based on local coverage determinations (LCDs). Even without using NCDs or LCDs, Medicare can also make decisions regarding medical necessity on a case-by-case basis. The result is that it can be especially confusing for doctors to know what treatments and procedures Medicare will reimburse for, and which ones will get flagged as suspect. Unfortunately, doctors who submit claims Medicare doesn’t like can wind up getting charged with attempting to defraud Medicare.

If you find yourself on the wrong end of a DOJ enforcement action alleging you prescribed unnecessary treatments and procedures in an effort to defraud Medicare or Medicaid (Medi-Cal), the Law Offices of Art Kalantar can help. Our healthcare law attorney has decades of experience helping healthcare practices in Los Angeles and statewide stay in compliance with the law and defending them against charges of civil or criminal wrongdoing. Call our experienced California healthcare fraud defense lawyer if you find yourself under investigation or facing charges of prescribing unnecessary treatments and procedures.

Three Prongs of Necessary Treatments and Procedures

Generally speaking, Medicare uses a three-pronged definition to determine what constitutes a necessary treatment or procedure. Necessary treatments and procedures are:

  • Safe and effective
  • Not experimental or investigational
  • Appropriate for Medicare patients

When Is a Treatment or Procedure “Appropriate” for a Medicare Patient?

Doctors can benefit from some guidance regarding what Medicare means when it says a treatment or procedure must be “appropriate for Medicare patients.” Appropriate treatments or procedures should meet the following criteria:

  • Meet accepted standards of medical practice
  • Provided in an appropriate setting
  • Provided by qualified personnel
  • Meet but not exceed the patient’s medical need
  • Be at least as beneficial as an existing and available medically appropriate alternative

Another way a treatment or procedure can be considered appropriate is if a majority of commercial insurers cover it. In that case, Medicare should cover it too (unless evidence supports clinically relevant differences between Medicare beneficiaries and commercially insured individuals). Although this option may offer some clarity to physicians, it might not cover as many procedures or treatments as the above definition would, since private insurance companies tend to be more limiting than inclusive when deciding whether a particular treatment or procedure is medically necessary. If the procedure or treatment is reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member, then it should theoretically pass the medical necessity test.

Examples of Treatments and Procedures That Could Lead to DOJ Enforcement Actions

Doctors and other medical professionals are always at risk of charges they are engaging in Medicare and Medicaid fraud schemes. Enforcement actions can come from the Department of Justice’s Health Care Fraud Unit; the Criminal Division’s Fraud Section; the Medicare Fraud Strike Force; the U.S. Attorney’s Offices; the FBI; HHS-OIG; the California Department of Justice, and other agencies. Examples of reimbursement claims that could lead to healthcare fraud charges based on unnecessary treatments or procedures include:

  • Prescribing compounded drugs. Compounded drugs are reimbursed at higher rates than average medications, making them suspect in the eyes of government payers like Medicare and Medicaid. Sometimes FDA-approved alternatives don’t meet the patient’s needs, but the burden can fall on the doctor to prove this is so.
  • Hospitals performing services on an inpatient basis when the procedure could be performed on an outpatient basis
  • Prescribing unneeded equipment, such as a motorized wheelchair when a manual one would do
  • Prescribing opioids or other drugs that are not needed and might be given or sold to others who don’t have a prescription rather than used by the patient
  • Providing ambulance transportation when the patient could transport themselves by other means

Get Help Today Fighting Healthcare Fraud Charges

If you’ve been accused of submitting claims for unnecessary treatments and procedures, not only could your medical license and healthcare practice be on the line, but you could face excessive fines or even prison as well. Protect yourself and your practice by getting advice and representation from a skilled and knowledgeable healthcare law attorney. Call the experienced California healthcare fraud defense lawyer at the Law Offices of Art Kalantar at 310-773-0001 for a free case evaluation so you’ll know where you stand.

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