IMPORTANT ASSIGNMENT 4

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Criminal Aspects of Health Care

Chapter 4

LEARNING OBJECTIVES

Explain what criminal law is, the classification of crimes, and its purpose.

Describe the criminal procedure process from arrest through trial.

Describe several of the more common crimes that occur in the healthcare setting.

Criminal law

Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.

What is the purpose of criminal law?

Purpose of Criminal Law

Maintain Public Order & Safety

Protect Individuals

Use Punishment as a Deterrent

Provide for Criminal Rehabilitation

What are the definitions of a crime, misdemeanor & felony?

Definitions

Crime – social harm defined & made punishable by law.

Misdemeanor – offense punishable by less than 1 year in jail and/or a fine.

Felony – imprisonment in a state or federal prison for more than a year.

What is an arraignment?

Complaint, Investigation & Arrest

Components of a Crime

act itself (the actus reus or guilty act);

requisite mental state/intent (the mens rea or guilty mind); and

causation; harm that is the result of the act that was committed. The accused performed the act that caused the harm with the intent to cause that harm.

Arraignment

Formal reading of the accusatory instrument

a generic term that describes a variety of documents, each of which accuses a defendant of an offense

includes the setting of bail

What is the purpose of a conference with the defendant and prosecutor?

Indictment

A formal charge or accusation of a serious crime.

Conference

Meeting for purposes of deliberation

Plea bargaining time

Commences with the goal of an agreed-upon disposition

If no disposition can be reached, a case may be assigned to a trial court.

Describe the process of conducting a criminal trial.

Criminal Trial – I

Jury selection

Opening statements

Presentation of witnesses & evidence

Standard of proof must be beyond a reasonable doubt.

Summations

Criminal Trial – II

Instructions to the jury by the judge

Jury deliberations

Verdict

must be unanimous

Sentencing

Opportunity for appeal

What does the False Claims Act of 1986 prohibit?

Health Care Fraud

Unlawful Act generally deception for personal gain.

FBI Primary agency for exposing & investigating healthcare fraud.

False Claims Act - 1986

Knowingly presenting a false claim for payment.

making a false record to get a false claim paid.

conspiring to defraud the government.

making a false record to avoid an obligation to pay or transmit property to the government.

Ethics in Patient Referral Act - 1989

Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.

Requires Medicare providers to report the names & provider numbers of all physicians or their immediate relatives with ownership interests in a provider entity.

HIPPA -1989

Provides criminal & civil enforcement tools & funding to fight against healthcare fraud.

Requires U.S. Attorney General & Secretary of DHHS, acting through the Office of Inspector General (OIG), to establish a national healthcare fraud & abuse control program.

Schemes to Defraud

Billing for services not rendered

Falsifying a patient’s diagnosis to justify tests, surgeries, or other procedures that are not medically necessary

Misrepresenting procedures performed to obtain payment for non-covered services

Upcoding services (billing for a more costly service than the one actually performed,

Schemes to Defraud - II

Unbundling (billing each stage of a procedure as if it were a separate procedure)

Billing for unnecessary services (services that are not medically indicated)

Accepting kickbacks for patient referrals

Waiving patient co-pays or deductibles

Overbilling insurance carrier or benefit plan.

Kickbacks

Laboratory

Architectural Contract

Health Care Fraud: Text Cases

Scheme to Defrauding Medicare & Medicaid

False Medicaid Claims

Physician & Office Manager

Pharmacist Submits False Drug Claims

Inflating Insurance Claims

Health Care Fraud: Text Cases - II

Falsiﬁcation of Records

Fraudulent Billing: Lab Tests

Misuse & Theft of Drugs

Homecare Fraud

Physicians Victims of Fraud How to Prevent Office Fraud

familiarize themselves with patient billing & record keeping practices

Avoid having one person in charge of both billing & collection process

Conduct annual audit of office procedures & records

Falsification of Records

Falsification of medical & business records is grounds for criminal prosecution.

Anyone who suffers damage as a result of falsification of records may claim civil liability.

The provider could lose Medicare & Medicaid funding.

Fraud & Ethics

Behind every act of healthcare fraud lies a lapse in ethics.

Patient Abuse

Mistreatment or neglect of patients

Types of abuse

Physical

Psychological

Medical

financial

Misuse and Theft of Drugs

Internet Pharmacy

Failure to review patient prescriptions prior to dispensing.

Fraudulent billing.

Transfer of funds to offshore account.

Physicians: Victims of Fraud Prevention

Familiarize themselves with patient-billing & recordkeeping practices.

Avoid having one individual in charge of billing & collection procedures.

Arrange for an annual audit of office procedures & records by an outside auditor.

Forms of Abuse

Physical

Psychological

Medical

Financial

CRIMINAL NEGLIGENCE

Neglect of Residents

Abuse & Revocation of License

Abusive Search

Cruelty to the Infirm

HOMICIDE

Unusual Number of Deaths

Nurse Sentenced for Diabolical Acts

Fatal Injection of Pavulon

Removal of Life Support Not Murder

Generally duty to provide life-sustaining equipment in immediate aftermath of cardiopulmonary arrest.

No duty to continue use once it has become futile & ineffective to do so

Manslaughter

Commission of an unintentional act that results in the death of another person.

Voluntary manslaughter: intentional killing of another person without premeditation or malice of forethought

Involuntary manslaughter: negligent act that occurs when defendant does not intend to kill the victim but acted in a criminally negligent or reckless manner that resulted in a death.

Rape & Sexual Assault

Rape occurs when one person is forced, without giving consent, to have sexual intercourse with another.

Statutory rape occurs when a person under the age of legal consent has sexual intercourse with another.

Text Case: Dupree v. Plantation Pointe

plaintiff’s mother sexually assaulted at the nursing home by a dementia patient.

Theft

Cost Millions Annually

Patient Valuables

Staff Valuables

Supplies

Medical Equipment

Text Case:

Commingling Resident’s Personal Funds

Review Questions

What are the objectives of criminal law?

Describe the difference between a misdemeanor & a felony. Give an example of each.

List the processes of a criminal trial.

Why has health care fraud been so costly?

Review Questions – II

Based on cases in the chapter, discuss why physicians historically have been reluctant to remove a patient's life-support systems.

Discuss why you believe patients are sometimes reluctant to complain about their health care.