BLAW 6500 Middle Tennessee Krizek Healthcare Legal Issues Fraud Assignment Attached is the full assignment instructions. Please only look at the highlighte

BLAW 6500 Middle Tennessee Krizek Healthcare Legal Issues Fraud Assignment Attached is the full assignment instructions. Please only look at the highlighted portion of it. All reading materials are provided and should only use those as the refrences. Assignment for Meeting #6 6500 Legal Aspects of Healthcare
NOTE: Unless indicated otherwise, all written assignment are to be in 12 point Times New
Roman font, 1 inch margins, double-spaced of a minimum of three (3) pages; and the cases,
questionnaire, articles, and links to videos are located in the weekly module for this
assignment on D2L (unless noted otherwise). The LearnScapes episodes are located in the
publisher site (Jones & Bartlett) using the access code that you purchased with your
bundle.
1. Read
1. Chapter 6 (Pages 203 – 217) in our textbook, Legal and Ethical Issues for Health
Professionals by George D. Pozgar (4th Edition).
2. Read the case United States v. Krizek.
3. Look on the Tennessee Health Services and Development Agency website and study
the Certificate of Needs which will argued in the upcoming THSDA Meeting.
2. Experience the Simulation and Complete Your Role by Answering the Questions in a
Word Document: Watch LearnScapes Episode 1 in Jones & Bartlett LearnScapes for Health
Care Ethics.
“LearnScape 1: Equipment Purchase
You are the CFO of small rural women’s health center within Bright Road Health Care
System. The center’s physicians have approached you about purchasing a mammography 3D
machine. The equipment is state-of-the-art and excellent for early diagnosis, but the women’s
health center has limited funds and currently does not have a large incidence of breast cancer
diagnosis. In addition to thinking about the impact of the machine on early diagnosis and
increasing revenue, you are keenly aware of the importance of keeping the young physicians
happy, in order to retain staff. On the other hand, the Board of Directors has indicated they
want to keep a tight control over frivolous spending, as they are uncertain how new
regulations like the ACA will impact the solvency of the corporation. You will need to
balance financial concerns, the authority of the Board of Directors, public
relations/marketing, the wishes of medical staff, and future implications when making a
decision.”
Part I: Legal Issues with Fraud
Do you think Krizek was appropriately penalized? What should we do to stop healthcare
fraud?
Part II: LearnScapes Episode: Equipment Purchase
a. Answer the questions from the LearnScapes episode about equipment purchase.
BLAW 6500 Spring 2019 A2 Revised 2/13/19
Page 1
b. Be prepared to role play as an advocate for or against the certificate of need for the
3D mammography.
It’s time to prepare for our upcoming CON hearing and final exam AND to celebrate all we have
accomplished so far this semester! – Sandy Benson
BLAW 6500 Spring 2019 A2 Revised 2/13/19
Page 2
Assignment for Meeting #6 6500 Legal Aspects of Healthcare
NOTE: Unless indicated otherwise, all written assignment are to be in 12 point Times New
Roman font, 1 inch margins, double-spaced of a minimum of three (3) pages; and the cases,
questionnaire, articles, and links to videos are located in the weekly module for this
assignment on D2L (unless noted otherwise). The LearnScapes episodes are located in the
publisher site (Jones & Bartlett) using the access code that you purchased with your
bundle.
1. Read
1. Chapter 6 (Pages 203 – 217) in our textbook, Legal and Ethical Issues for Health
Professionals by George D. Pozgar (4th Edition).
2. Read the case United States v. Krizek.
3. Look on the Tennessee Health Services and Development Agency website and study
the Certificate of Needs which will argued in the upcoming THSDA Meeting.
Part I: Legal Issues with Fraud
Do you think Krizek was appropriately penalized? What should we do to stop
healthcare fraud?
Part II: LearnScapes Episode: Equipment Purchase
a. Answer the questions from the LearnScapes episode about equipment purchase.
b. Be prepared to role play as an advocate for or against the certificate of need for the
3D mammography.
It’s time to prepare for our upcoming CON hearing and final exam AND to celebrate all we have
accomplished so far this semester!
BLAW 6500 Spring 2019 A2 Revised 2/13/19
Page 1
Westlaw Delivery Summary Report for MIDDLE TENNESSEE
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Thursday, September 30, 2010 12:09 Central
CAMPUSRESEARCH
FEDFIND
111 F.3d 934
697
1
0
The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
Page 1
111 F.3d 934, 324 U.S.App.D.C. 175, 65 USLW 2750, Med & Med GD (CCH) P 45,205
(Cite as: 111 F.3d 934, 324 U.S.App.D.C. 175)
United States Court of Appeals,
District of Columbia Circuit.
UNITED STATES of America, Appellant/
Cross-Appellee
v.
George O. KRIZEK, M.D., et al., Appellees/
Cross-Appellants.
Nos. 96-5045, 96-5046.
Argued Dec. 2, 1996.
Decided May 2, 1997.
United States brought action against psychiatrist
and his wife, alleging violations of False Claims
Act in connection with psychiatrist’s billing for
treatment of Medicare and Medicaid patients, and
his wife’s submission of billing records. The United
States District Court for the District of Columbia,
Stanley Sporkin, J., 859 F.Supp. 5, found violations
of False Claims Act and held that psychiatrist and
wife were presumptively liable for 1,149 false
claims for patient treatment in excess of nine hours
per day. Upon motions of parties, the same court,
Sporkin, J., 909 F.Supp. 32, modified its earlier decision, holding that psychiatrist and wife were presumptively liable for 11 claims for patient treatment in excess of 24 hours per day. Parties appealed. The Court of Appeals, Sentelle, Circuit
Judge, held that: (1) district court could not revisit
issue of whether psychiatrist and wife were presumptively liable for patient treatment in excess of
nine hours per day without allowing parties to introduce additional evidence; (2) district court did
not impermissibly disregard factual findings of
Special Master in imposing liability for only 11
false claims; (3) psychiatrist and wife submitted
separate claim when they submitted each form listing codes identifying various services provided to
single patient; (4) agreement between psychiatrist,
wife, and government during trial provided that liability for Medicare claims would be determined by
using seven-patient sample, with damages to be ex-
trapolated later; (5) “gross negligence-plus” was
appropriate level of scienter; and (6) psychiatrist
and wife acted with reckless disregard.
So ordered.
West Headnotes
[1] Federal Courts 170B
1040.1
170B Federal Courts
170BXI Courts of District of Columbia
170BXI(A) In General; District Court
170Bk1040 Procedure in District Court
170Bk1040.1 k. In General. Most
Cited Cases
District court was not free, after receiving Special
Master’s Report in False Claims Act action, to revisit issue of whether psychiatrist was presumptively liable for patient treatment in excess of
nine hours per day without allowing parties to introduce additional evidence. 31 U.S.C.A. § 3729 et
seq.
[2] Federal Courts 170B
1040.1
170B Federal Courts
170BXI Courts of District of Columbia
170BXI(A) In General; District Court
170Bk1040 Procedure in District Court
170Bk1040.1 k. In General. Most
Cited Cases
District court did not impermissibly disregard factual findings of Special Master in imposing liability
on psychiatrist for only 11 false claims under False
Claims Act, as opposed to 1,149 false claims referred to in Special Master’s Report; Special Master
did not determine as matter of fact that 1,149 false
claims were made, but instead stated only that
1,149 false claims were made if certain presumption were applied. 31 U.S.C.A. § 3729 et seq.;
Fed.Rules Civ.Proc.Rule 53(e)(2), 28 U.S.C.A.
[3] United States 393
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
122
Page 2
111 F.3d 934, 324 U.S.App.D.C. 175, 65 USLW 2750, Med & Med GD (CCH) P 45,205
(Cite as: 111 F.3d 934, 324 U.S.App.D.C. 175)
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k122 k. Penalties and Actions Therefor. Most Cited Cases
Psychiatrist submitted separate “claim,” for purposes of computing civil penalties under False
Claims Act, when he submitted each form listing
codes identifying various services provided to
single Medicare patient, not when he listed each
such code, where form asked medical provider to
supply, in addition to codes and other information,
total charges for services provided to patient. 31
U.S.C.A. § 3729(c).
[4] United States 393
120.1
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
Whether defendant in False Claims Act action has
made one false claim or many is fact-bound inquiry
that focuses on specific conduct of defendant. 31
U.S.C.A. § 3729(c).
[5] United States 393
122
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k122 k. Penalties and Actions Therefor. Most Cited Cases
The question of what constitutes claim, for purposes of computing civil penalties under False
Claims Act, turns not on how government chooses
to process claim, but on how many times defendant
made a request or demand. 31 U.S.C.A. § 3729(c).
[6] United States 393
393 United States
120.1
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
Conduct of medical practitioner, not disposition of
claims by government, creates False Claims Act liability, for purposes of determining what constitutes separate claim under Act. 31 U.S.C.A. §
3729(c).
[7] United States 393
120.1
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
Agreement between psychiatrist and government
during False Claims Act trial provided that liability
for Medicare claims would be determined by using
seven-patient sample, with damages to be extrapolated later, not that sample would be used merely to
test government’s theories. 31 U.S.C.A. § 3729 et
seq.
[8] United States 393
120.1
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
An aggravated form of gross negligence, or “gross
negligence-plus,” was equivalent to reckless disregard, and thus was the appropriate level of scienter
to apply in False Claims Act action. 31 U.S.C.A. §
3729(a).
[9] Statutes 361
241(1)
361 Statutes
361VI Construction and Operation
361VI(B) Particular Classes of Statutes
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
111 F.3d 934, 324 U.S.App.D.C. 175, 65 USLW 2750, Med & Med GD (CCH) P 45,205
(Cite as: 111 F.3d 934, 324 U.S.App.D.C. 175)
361k241 Penal Statutes
361k241(1) k. In General. Most Cited
Cases
Rule of lenity is invoked only when statutory language is ambiguous.
[10] United States 393
120.1
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
Psychiatrist and his wife acted with reckless disregard in submitting incorrect billings for treatment
provided to Medicare patients, and thus acted
“knowingly” under False Claims Act, where, inter
alia, wife completed submissions with little or no
factual basis, and psychiatrist failed utterly to review bills submitted on his behalf. 31 U.S.C.A. §
3729(a).
[11] United States 393
120.1
393 United States
393VIII Claims Against United States
393k120 Making or Presentation of False
Claims and Other Offenses Relating to Claims
393k120.1 k. In General. Most Cited
Cases
Fact that Special Master spent time considering allegedly irrelevant evidence in False Claims Act
case did not compel finding that defendants should
not be billed for such time, where such evidence
was presented by defendants. 31 U.S.C.A. § 3729 et
seq.
*935 **176 Appeals from the United States District
Court for the District of Columbia (No.
93cv00054).Mark E. Nagle, Assistant United States
Attorney, argued the cause for appellant/
cross-appellee, with whom Eric H. Holder, Jr.,
United States Attorney, R. Craig Lawrence and
Bruce R. Hegyi, Assistant United States Attorneys,
Washington, DC, were on the briefs.
Paul D. Clement argued the cause for appellees/
cross-appellants, with whom Christopher A. Cole
and Paul T. Cappuccio, Washington, DC, were on
the briefs.
Before: SILBERMAN, GINSBURG and SENTELLE, Circuit Judges.
Opinion for the court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge.
This appeal arises from a civil suit brought by the
government against a psychiatrist and his wife under the civil False Claims Act (“FCA”), 31 U.S.C.
§§ 3729-3731, and under the common law. The
District Court found defendants liable for knowingly submitting false claims and entered judgment
against defendants for $168,105.39. The government appealed, and the defendants filed a crossappeal. We hold that the District Court erred and
remand for further proceedings.
I.
The government filed suit against George and
Blanka Krizek for, inter alia, violations of the civil
FCA, 31 U.S.C. §§ 3729-3731. Dr. George Krizek
is a psychiatrist who practiced*936 **177 medicine
in the District of Columbia. His wife, Blanka Krizek, worked in Dr. Krizek’s practice and maintained his billing records. At issue are reimbursement forms submitted by the Krizeks to
Pennsylvania Blue Shield (“PBS”) in connection
with Dr. Krizek’s treatment of Medicare and Medicaid patients.
The government’s complaint alleged that between
January 1986 and March 1992 Dr. Krizek submitted
8,002 false or unlawful requests for reimbursement
in an amount exceeding $245,392. The complaint
alleged two different types of false claims: first,
some of the services provided by Dr. Krizek were
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
111 F.3d 934, 324 U.S.App.D.C. 175, 65 USLW 2750, Med & Med GD (CCH) P 45,205
(Cite as: 111 F.3d 934, 324 U.S.App.D.C. 175)
medically unnecessary; and second, the Krizeks
“upcoded” the reimbursement requests, that is
billed the government for more extensive treatments than were, in fact, rendered.
A doctor providing services to a Medicare or Medicaid recipient submits a claim for reimbursement to
a Medicare carrier, in this case PBS, on a form
known as the “HCFA 1500.” The HCFA 1500 requires the doctor to provide his identification number, the patient’s information, and a five-digit code
identifying the services for which reimbursement is
sought. A list of the five-digit codes is contained in
the American Medical Association’s Current Procedures Terminology Manual (“CPT”). For instance, the Manual notes that the CPT code
“90844” is used to request reimbursement for an individual medical psychotherapy session lasting approximately 45 to 50 minutes. The CPT code
“90843” indicates individual medical psychotherapy for 20 to 30 minutes. An HCFA 1500 lists
those services provided to a single patient, and may
include a number of CPT codes when the patient
has been treated over several days or weeks.
Before the District Court, the government argued
that the amount of time specified by the CPT for
each reimbursement code indicates the amount of
time spent “face-to-face” with the patient. The government focused on the Krizeks’ extensive use of
the 90844 code. According to the government, this
code should be used only when the doctor spends
45 to 50 minutes with the patient, not including
time spent on the phone in consultation with other
doctors or time spent discussing the patient with a
nurse. The government argued that the Krizeks had
used the 90844 code when they should have been
billing for shorter, less-involved treatments.
Based on its claims of unnecessary treatment and
up-coding the government sought an extraordinary
$81 million in damages. This amount included
$245,392 in actual damages and civil penalties of
$10,000 for each of 8,002 separate CPT codes. During a three-week bench trial, the District Court determined that the case would initially be tried on
the basis of seven patients which the government
described as representative of the Krizeks’ improper
coding and treatment practices. United States v. Krizek, No. 93-0054 (D.D.C. March 9, 1994)
(Protective Order). The determination of liability
would then “be equally applicable to all other
claims.” Id. On July 19, 1994, the District Court issued a Memorandum Opinion, United States v. Krizek, 859 F.Supp. 5, 8 (D.D.C.1994) [hereinafter
Krizek I], holding that the government had not established that the Krizeks submitted claims for unnecessary services. The Court noted that the government’s witness failed to interview the patients or
any doctors or nurses. Id. The District Court also
rejected the government’s theory that the Krizeks
were liable for requesting reimbursement when
some of the billed time was spent out of the presence of the patient. Id. at 10. The Court found that
it was common and proper practice among psychiatrists to bill for time spent reviewing files, speaking with consulting physicians, etc. Id.
Despite having rejected the government’s arguments on these claims, the Court determined that
the Krizeks knowingly made false claims in violation of the FCA. Id. at 13. The Court found that because of a “seriously deficient” system of recordkeeping the Krizeks “submitted bills for 45-50
minute psychotherapy sessions … when Dr. Krizek
could not have spent the requisite time providing
services, face-to-face, or otherwise.” Id. at 11, 12.
For instance, on some occasions within the sevenpatient sample, Dr. Krizek submitted claims for
over 21 hours of patient treatment within a 24-hour
period. Id. at 12. The Court stated, “While Dr. *937
**178 Krizek may have been a tireless worker, it is
difficult for the Court to comprehend how he could
have spent more than even ten hours in a single day
serving patients.” Id. The Court stated that these
false statements
were not “mistakes” nor merely negligent conduct. Under the statutory definition of “knowing”
conduct the Court is compelled to conclude that
the defendants acted with reckless disregard as to
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
111 F.3d 934, 324 U.S.App.D.C. 175, 65 USLW 2750, Med & Med GD (CCH) P 45,205
(Cite as: 111 F.3d 934, 324 U.S.App.D.C. 175)
the truth or falsity of the submissions. As such,
they will be deemed to have violated the False
Claims Act.
Id. at 13-14.
Having found the Krizeks liable within the sevenpatient sample, the Court attempted to craft a
device for applying the determination of liability to
the entire universe of claims. Here, the District
Court relied on the testimony of a defense witness
that he could not recall submitting more than
twelve 90844 codes-nine hours worth of patient
treatment-for a single day. Id. at 12. Based on this
testimony, the District Court stated that nine hours
per day was “a fair and reasonably accurate assessment of the time Dr. Krizek actually spent providing patient services.” Id. The Court, accordingly,
determined that the Krizeks would be liable under
the FCA on every day in which
claims were submitted in excess of the equivalent
of twelve (12) 90844 claims (nine patienttreatment hours) in a single day and where the
defendants cannot establish that Dr. Krizek legitimately devoted the claimed amount of time to
patient care on the day in question.
Id. at 14.
On April 6, 1995, the District Court, with the consent of the parties, referred the matter to a Special
Master with instructions to investigat…
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