Criminal Aspects of Health Care

Criminal law

· Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.

· What is the purpose of criminal law?

Purpose of Criminal Law

· Maintain Public Order & Safety

· Protect Individuals

· Use Punishment as a Deterrent

· Provide for Criminal Rehabilitation

· What are the definitions of a crime, misdemeanor & felony?

Definitions

· Crime – social harm defined & made punishable by law.

· Misdemeanor – offense punishable by less than 1 year in jail and/or a fine.

· Felony – imprisonment in a state or federal prison for more than a year.

· What is an arraignment?

Arraignment

· Formal reading of the accusatory instrument

· a generic term that describes a variety of documents, each of which accuses a defendant of an offense

· includes the setting of bail

· What is the purpose of a conference with the defendant and prosecutor?

Conference

· Meeting for purposes of deliberation

· Plea bargaining time

· Commences with the goal of an agreed-upon disposition

· If no disposition can be reached, a case may be assigned to a trial court.

· Describe the process of conducting a criminal trial.

Criminal Trial – I

· Jury selection

· Opening statements

· Presentation of witnesses & evidence

· Standard of proof must be beyond a reasonable doubt.

· Summations

Criminal Trial – II

· Instructions to the jury by the judge

· Jury deliberations

· Verdict

· must be unanimous

· Opportunity for appeal

· What does the False Claims Act of 1986 prohibit?

False Claims Act of 1986

· Knowingly presenting a false claim for payment.

· making a false record to get a false claim paid.

· conspiring to defraud the government.

· making a false record to avoid an obligation to pay or transmit property to the government.

Ethics in Patient Referral Act

· Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.

· Requires Medicare providers to report the names & provider numbers of all physicians or their immediate relatives with ownership interests in a provider entity.

Health Care Fraud: HIPAA

· Provides criminal & civil enforcement tools & funding to fight health care fraud.

· HIPAA requires U.S. AG & Secretary of DHHS acting through OIG to establish coordinated national Health Care Fraud & Abuse Control Program.

· Program provides coordinated national framework for federal, state, & local law enforcement agencies; private sector; & public to fight health care fraud.

Kickbacks

· Laboratory

· Architectural Contract

Health Care Fraud: Text Cases

· Defrauding Medicare and Medicaid

· False Medicaid Claims

· Pharmacist Submits False Drug Claims

· Inflating Insurance Claims

· Falsification of Records

Falsification of Records

· Falsification of medical & business records is grounds for criminal prosecution.

· Anyone who suffers damage as a result of falsification of records may claim civil liability.

· The provider could lose Medicare & Medicaid funding.

Misuse and Theft of Drugs

· Internet Pharmacy

· Failure to review patient prescriptions prior to dispensing.

· Fraudulent billing.

· Transfer of funds to offshore account.

Physicians: Victims of Fraud Prevention

· Familiarize themselves with patient-billing & recordkeeping practices.

· Avoid having one individual in charge of billing & collection procedures.

· Arrange for an annual audit of office procedures & records by an outside auditor.

Patient Abuse

· Patient abuse is the mistreatment or neglect of individuals who are under the care of a health care organization.

· Describe the signs of resident abuse the surveyors look for.

Forms of Abuse

· Physical

· Psychological

· Medical

· Financial

Abuse Cases – I

· Criminal Negligence

· Reckless disregard for the safety of others.

· Willful indifference to an injury that could follow an act.

· Neglect of Residents

· Abuse & Revocation of License

· Abusive Search

· Physical Abuse

CRIMINAL NEGLIGENCE

· Neglect of Residents

· Abuse and Revocation of License

· Abusive Search

· Medication Violations and Resident Abuse

· Assisted Living Facilities

Murder

· Unusual Number of Deaths

· Nurse Sentenced for Diabolical Acts

· Fatal Injection of Pavulon

· Fatal Injection of Lidocaine

Petty Theft

· Cost Millions Annually

· Patient Valuables

· Staff Valuables

· Supplies

· Medical Equipment

Case: Sexual Assault

· An action was filed against a nursing facility after the plaintiff's mother was sexually assaulted by a dementia patient.

· There was testimony that the facility was properly staffed.

· There was testimony that the resident suffered no physical injury & she was not aware of the assault.

· What was the Court’s decision?

Court Decision

· The court found that the facility had not breached its duty of care.

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Ethical and Legal Issues in Health Care

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