• Ronald Chapman, LL.M.

Read This Before Pleading Guilty to a Healthcare Offense

"Federal jails are filled with doctors who were pressured into taking plea agreements that they do not fully comprehend and later regret"

Your attorney lets out an audible sigh as he takes off his glasses and sets them on the conference table. "I recommend that you plead guilty" he says. "With all of these counts, they just need to prove one to put you in jail for a long time". Now, facing a dozen health care fraud charges and unlawful drug distribution charges, your attorney wants you to stand up before a judge and say that you are a healthcare fraudster and a drug dealer. You are not, you know you are not, but you are fearful of a life changing amount of jail time if you don't plead guilty.


If you or someone you know is facing this situation, take a few minutes to read this and ensure you have exhausted your options before making that life changing decision.

1. DO NOT PLEAD GUILTY IF YOU ARE NOT GUILTY


It seems obvious but Federal jails are filled with doctors who were pressured into taking plea agreements that they do not fully comprehend and later regret. Health care fraud and unlawful drug distribution are offenses that require the Government to prove knowledge and intent. Health care fraud requires the government to prove that a healthcare provider "knowingly" and "intentionally" executed or attempted to execute a scheme or artifice to defraud a federal healthcare program. Unlawful drug distribution requires proof that a healthcare provider "knowingly" and "intentionally" prescribed or dispensed a controlled substance "outside the usual course of professional practice and for no legitimate medical purpose". The Government must convince a jury of 12 unanimously, that you are guilty of these offenses - this is not an easy task. If you are not guilty, you cannot plead guilty simply because you are pressured by the process or feel that the judge will give you a harsher sentence. There is nothing wrong with exerting your constitutional right to trial.


2. THOROUGHLY REVIEW THE SPECIFIC PATIENT INTERACTIONS AT ISSUE


Healthcare fraud and unlawful drug distribution are patient specific offenses, meaning that guilt or innocence is dependent upon the government proving specific instances of conduct. The Government must prove that a prescriber distributed a medication that lacked a medical purpose to a specific patient or that he or she executed a scheme to defraud an insurance company during a specific claim or patient encounter. Too often, defense counsel fail to analyze the specific claims and medications at issue and get bogged down in reviewing volumes of discovery (which his costly) not related to specific patient interactions. You must question your attorney to understand their knowledge of each specific patient interaction charged to ensure that before recommending a plea they have considered each patient interaction to determine wrongfulness.


3. OBTAIN EXPERT REVIEW FROM AN EXPERT WHO KNOWS THE STANDARD


An attorney recommending a guilty plea without consulting an expert is a bit like a physical therapist diagnosing you with cancer. In some cases criminal culpability is obvious such as billing for services that were clearly not rendered or prescribing medications to patients when the provider knows they were being used for a non-medical purpose. However, where medical decision making and judgement is in question - an expert must be consulted. And not just any expert, your expert must understand the standard at issue in the case. For unlawful prescribing the expert must analyze prescriptions and determine whether the evidence shows that the prescription lacked any legitimate medical purpose. For healthcare fraud charges the expert must determine that a claim was clearly inappropriate or not rendered. Violations of administrative rules, medicare regulations, and CDC guidelines are not sufficient to render conduct unlawful. An expert who does not know the applicable standard is about as useless as an attorney who does not know the law.


4. OBTAIN A SECOND OPINION


If you are considering a plea of guilty, you must get a second opinion. Second opinions are common in the healthcare industry when medical decisions carry significant consequences, there is no shame in seeking one for the most important decision of your life. Many defendants feel that their attorney may get upset or withdraw from the case if you seek a second opinion. If you believe that, ask your self whether you should continue with an attorney who is so insecure about his or her decision decision-making that the offer of a new way of looking at things is insulting. The only reason your attorney may be upset with the offer of a second opinion is that he or she is self-conscious about his or her judgment is being analyzed. A second opinion should be based on a review of the evidence and written in a report so that you can review the information and make an informed decision about the facts and the law.


5. UNDERSTAND THE COLLATERAL CONSEQUENCES


The punishment for a healthcare offense such as unlawful distribution is not simply jail time and fines or forfeitures. Some physicians, nurses, and mid-level providers have been able to claw their way back to practice. Don't cling to that rare hope to your detriment. If you plead guilty to a federal felony related to healthcare - you will not practice medicine again or own a healthcare entity again. Before you plead guilty, you must take this as a truth. It is certainly true that you may submit a glowing reinstatement application after your mandatory medicare exclusion expires and you may be reinstated but you must face reality. Hospital boards will not credential you, it takes years to reinstate a DEA registration, state medical boards are becoming more strict with re-application. Below is a list of collateral consequences you and your attorney should consider before accepting a plea of guilty.


State license to practice

Medicaid privileges

Medicare privileges

Tricare privlidges

DEA registration

Hospital credentialing

Exclusion from healthcare insurance panels

Loss of voting rights

Job loss


6. DON'T FALL FOR COMMON MISCONCEPTIONS


Challenge common misconceptions about the criminal trial process and ensure that your counsel is prepared to answer all of your questions:


"If you don't plead guilty - the Judge will give you a harsher sentence"


This statement is repeated by many defense counsel but lacks actual empirical evidence in support. This is especially true where federal sentencing guidelines rely on drug weight (drug distribution charges) or amount of healthcare fraud (healthcare fraud charges) to determine the prison sentence a defendant will receive. Often, Government plea agreements require a defendant to plead to very high fraud amounts and drug weight. A trial strategy that seeks acquittal but also offers evidence that will lower the fraud amount and drug quantity at sentencing will lessen a Defendant's sentence.


"Your co-defendants will seek a plea first roll over on you"


This may be true and may be a good reason to plead guilty in a non-healthcare case but it has limited applicability to a healthcare case such as healthcare fraud or unlawful distribution. Moreover, this is not a reason to cling to a plea deal if you have doubts about your guilt or feel that you are not guilty. When a Federal prosecutor offers a plea in a healthcare fraud case or drug distribution case, they must include the amount of fraud (loss amount) and amount of pills unlawfully distributed in the plea agreement (drug weight). Federal prosecutors are sensitive to offering a first offer that minimizes the drug quantity or the fraud loss amount because the defendant who accepts such an offer will be subject to cross examination by co-defendants who proceed to trial. This cross examination will reveal that the government had a different view of the "loss amount" or "drug weight" when making a deal with cooperators. In order to avoid the appearance of inconsistent positions, Federal prosecutors keep the "loss amount" high and the "drug weight" high but offer a sentence reduction pursuant to USSG 5k1.1. The problem with an offer of a sentence reduction instead of a "drug weight" or "loss amount" reduction is that USSG 5K1.1 is only a recommendation to the court that the defendant receive a lighter sentence, it is not a guarantee.


"This offer will go away if you don't accept it"


Be weary of attempts to get you to accept an offer without fully reviewing the evidence in your case. Many attorneys in a rush to resolve a case with a potentially favorable sentence will inform their clients that an offer will go away if its not accepted early in the case before discovery and evidence has been reviewed. However, ethical rules require attorneys to make knowledgeable recommendations to their clients and not simply recommend a plea of guilty prior to some sort of investigation. If you have doubts about your guilt, it is imperative that you review the evidence against you before entering a plea of guilty. Often, prosecutors accept the same offer after the "expiration date" and in some cases even provide better offers after the "expiration date". Moreover, if evidence exists that tends to limit culpability, presenting such evidence to a prosecutor may actually sweeten the deal.







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