Happy new year.
2019 will be an interesting year in the health care fraud. Here is a short summary of the must watch cases of 2019.
Prosecution of Insys Therapeautics executives. Prosecutors claim CEO Michael Babich, chairman John Kapoor and four sales executives conspired to bribe doctors to prescribe the company’s powerful fentanyl painkiller spray. Prosecutors have brought racketeering charges against the defendants. Babich is set to pled guilty on January 9, 2019. The vice president of sales, Alec Burlakoff, pled guilty last month. The remaining defendants are gearing up for trial.
Prosecution of Two Former Tenet Hospital executives. Prosecutors claim that the two former executives of Tenet engaged in a scheme to accept kickbacks from the head of a clinic that served Hispanic immigrants. The case is hotly contested and there has been extensive litigation over the past two years. It looks like the case will finally go to trial in Atlanta this year.
$1 Billion Telemedicine Case. This case is out of Tennessee. It charges seven compounding pharmacies and four individuals and alleges a telemedicine scheme involving the submission of fraudulent prescriptions for reimbursement by private insurers. Interestingly, the prosecutors did not charge the doctors in this case and has identified them as victims.
In terms of appeals, United States v. Melgen is the case to watch. Melgen was convicted in a health care fraud conspiracy that alleged that the doctor performed medically unnecessary procedures on his patients, among other allegations. The appeal raises numerous issues. Two issues that have been raised and could have a big impact on other cases is whether the admission of statistical peer comparison evidence violated the Rules of Evidence and the Confrontation Clause and whether the court erred by not instructing the juror that the prosecution’s sampling of patients was not random. The issue of “sampling of patients” was hotly contested at trial. The defense claimed that the Government cherry picked the worst patients and didn’t use a statistician. I think this is a common practice by the government. Dr. Melgen is represented by Kirk Ogrosky at Arnold and Porter.
And last but not least, 2019 might be the year we finally get an opinion from the Eleventh Circuit in United States v. AseraCare. The Eleventh Circuit heard oral arguments in this case two years ago. The central issue in this case is whether, when two experts look at medical records and disagree about their meaning, a jury can side with one expert and deem billing fraudulent. A judge in Alabama decided that this type of evidence is insufficient to create FCA liability. This opinion impacts the defense of medical necessity prosecutions that usually revolve around a dispute amongst experts.