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Phantom Unqualified Care Leads to Prison Sentence for Physician

on Monday, 21 November 2016 in Health Law Alert: Erin E. Busch, Editor

A recent Georgia case brings to light the fraudulent practice of physicians allowing insufficiently qualified or completely unqualified persons to perform clinical services and documenting the services as though the physician performed them. The practice may go undetected for a time due to improper password sharing in order to allow the unqualified person to document services, enter orders or authenticate entries.

In this case from the Northern District of Georgia, the physician, Dr. Robert E. Windsor of Atlanta, asked an unqualified medical assistant to monitor surgeries for him using the physician’s log-in credentials making it appear that he was personally monitoring the surgeries. In support of the billing, Dr. Windsor submitted monitoring reports documenting that he had personally performed the services. These services were performed under a contract with a neuro-monitoring corporation that contracts with hospitals to provide monitoring of nerve and spinal cord activity during surgery. The contract called for Dr. Windsor to monitor the surgeries online and communicate as needed with the surgeon in the operating suite. The corporation submitted the bills and paid Dr. Windsor a fee for each case. This practice resulted in $1.1 million in fees paid to Dr. Windsor over a period of approximately three years.

The greatest concern to the OIG was the negative impact on the quality of care for these patients: “In my many years of investigating health care fraud, Dr. Windsor’s utter disregard for patient safety and his extreme greed stand out. His arrogance in billing for fraudulent services performed by an unqualified employee on patients undergoing surgery is truly shocking. Our agents, working with our law enforcement partners, strive to protect the well-being of patients and the government health programs designed to serve them.” Statement by Derrick Jackson, Special Agent in Charge for the HHS Office of Inspector General.

Dr. Windsor pleaded guilty and was sentenced to three years, two months in prison, followed by three years of supervised release. He was ordered to provide 200 hours of community service and to pay $1,169,580 in restitution to health care payers.

Electronic health records have provided many advantages in the health care environment. Unfortunately they have also resulted in new methods for fraud. No doubt, many of the “short cuts” begin as a means to save time for the physician or other licensed professional and end up expanding to the point of outright fraud.

It is critical to educate medical staff members about these risks since many rationalizations and misunderstandings exist. While there is a long-standing common law principle that a physician may delegate medical tasks to unlicensed persons (including students), there are severe limitations on this practice. Delegation must be done properly or it will be negligent. The task must be properly delegated to one trained or qualified to safely perform it and the necessary supervision must be provided. Failure to delegate and supervise properly can result is serious quality of care issues, significant liability for the physician and possible licensure discipline. Dr. Windsor’s case illustrates that criminal liability and penalties can ensue when improper delegation is coupled with providing fraudulent documentation to support billing.

Julie A. Knutson

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