Clinics a Target in Medicare Fraud Investigations; Queens Fraud Defense Lawyer Discusses Recent Pleas in Major Fraud Cases

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In the last month, there have been two guilty pleas in major New York Medicare fraud cases: a clinic owner in Queens for a $11.7 million fraud and the owner of a Brooklyn clinic for $71 million. Queens fraud defense lawyer Rochelle Berliner discusses why federal authorities target privately-owned clinics and what they look for.

"Under no circumstance should [doctors and clinic employees] count on their employer to defend them — it could be quite the opposite," said Rochelle Berliner, Queens fraud defense lawyer.

In December 2012, there were two big guilty pleas for Medicare fraud in New York City federal courts: one for a $71 million scheme and one for a $11.7 million scheme. One major element both fraud cases had in common was that both of the frauds involved private clinics. President Barack Obama cited savings coming from increased ability to spot and fight Medicare fraud as one of the justifications for the Patient Protection and Affordable Care Act in 2010. Private clinics are a prime target because they have the capacity to produce the biggest "busts," and New Yorkers can expect to see more in 2013, said Queens fraud defense lawyer Rochelle Berliner.

"Private clinics can have these large, eight-figure fraudulent claims numbers," Berliner said. "They make great publicity for the federal government when they make these kind of $70 million findings, especially at a time when the Obama Administration is seeking to prove the worth to the American people of the Affordable Care Act. I would be surprised if there weren't many more similar cases in the near future."

In one case from last month, the owner and manager of a Brooklyn clinic, Bay Medical Clinic plead guilty to defrauding Medicare of $71 million. According to court documents, the owner, Irina Shelikhova, and her 15 conspirators, paid supposed clients cash kickbacks and then would use their names to bill Medicare for medical services and procedures that were either medically unnecessary or never provided (USA v. Drivas, et al, NYED No. 10cr00771). Shelikhova, who fled to Ukraine but then returned to plead guilty, faces up to 20 years in federal prison when she is sentenced in March.

In another case, Dr. Ho Yon Kim, of Flushing, plead guilty to bilking Medicare out of $11.7 million at two Brooklyn clinics. Kim billed Medicare for physical therapy, electronic stimulation treatment and other medical services that were not medically necessary or were not performed, according to a court documents (USA v. Ho Yon Kim, et al, NYED No. 11-743). Kim and two doctors awaiting trial allegedly offered patients massages, facial treatments, meals and dancing classes to use their names to bill Medicare. Kim faces up to 10 years in federal prison.

Medicare has about 3.1 million beneficiaries in New York State, representing about $34 billion in spending every year, according to the Kaiser Family Foundation. This would seem to make it difficult to find fraudulent claims.

The Affordable Care Act (ACA), however, contains new provisions and procedures designed to detect fraud. Clinics and large-scale operations running a high volume of fraudulent claims tend to have some kind of pattern. Under the ACA, all fee-for-service claims are analyzed with software designed to detect suspicious patterns. The software flags suspicious transactions, which are then investigated. The software has contributed to more than 1,000 investigations since it was implemented in June 2011, according to the Department of Health and Human Services.

Others are caught in more traditional ways. A national alleged Medicare scam involving dialysis giant DaVita was brought to investigators' attention in November by two whistleblower employees, according to CNN.

The ease of discovering potential fraud with new software, combined with the headline-grabbing potential of tens-of-millions-of-dollars busts of alleged theft of public funds, along with an administration anxious to sell its signature policy achievement to the public, means that there are likely to be even more enthusiastic prosecutions of Medicare fraud targeting clinics. Area clinic operators who have any hint they are being investigated are well-advised to seek a New York Medicare fraud defense attorney — as are their employees, Berliner said.

"Doctors and other employees are often charged along with clinic operators and owners, even if they weren't aware or weren't participating in the fraud," she said. "Under no circumstance should they count on their employer to defend them — it could be quite the opposite. They should immediately seek an experienced attorney of their own."

Rochelle Berliner is a New York criminal defense attorney who represents clients accused of white collar crimes, including fraud and scheme to defraud. She also represents those charged with drug crimes, DUI and other crimes. She is based in Queens and serves clients throughout the city, including Manhattan and Brooklyn.

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