Parker Comments on Health Care Fraud Prosecution

The statute for criminal prosecution of doctors for health care fraud requires the government to show that the doctor acted deliberately, Professor Jeffrey Parker told in an article about a Nevada case in which a physician was awarded legal fees for what a federal trial judge determined to be a frivolous health care fraud case.

Parker assisted Dr. Mark Capener, currently practicing in Idaho, in his suit against federal investigators for legal fees under the Hyde Amendment, which allows individuals to recoup litigation expenses in instances where they prevail in criminal cases that a court finds to be frivolous or pursued in bad faith.

Judge rules criminal fraud case against Idaho doctor is frivolous,, Aug. 2007. By Amy Lynn Sorrel.

"Jeffrey S. Parker, a criminal law professor at George Mason University School of Law in Arlington, Va., said cases like the one against Dr. Capener -- prosecuted under a general 1996 health care fraud statute -- are not unusual. The statute sets a standard for criminal violations that requires the government to show that the doctor acted deliberately.

"Instead, in many cases, '[the government] is just looking at CPT code usage and anybody out on the tail of the distribution is targeted for criminal prosecution,' Parker said. 'And that's not the same thing as intentional wrongdoing.' If found guilty, doctors could face 10 years in prison, noted Parker, who assisted in Dr. Capener's suit.

"Tate said that although Dr. Caperner may have done more surgeries that what might be considered 'normal' among other doctors, he did what was best for his patients.

"Though it is difficult to prevent an unwarranted investigation, Parker recommended that doctors at least use a coding expert to help them accurately file claims and track their billing patterns."

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