Medicare Compliance & Reimbursement

The turning point in the campaign against health care fraud and abuse - the August 1996 effective date of the anti-fraud provisions of the Health Insurance Portability and Accountability Act - has taken on a uniquely personal significance for a durable medical equipment supplier convicted of health care fraud. Joyce Lee Hickman was sentenced to more than 17 years in prison for billing Medicare and other insurers for DME that was never prescribed and inpatient doctor visits and other services that never actually happened. She was also ordered to pay more than $9 million in restitution on the bogus claims, which were submitted between 1995 and 2001. Hickman's company, Total Medical Management, included a billing service for physicians, a DME supply company and a medical and dental clinic. On appeal, Hickman successfully argued that three of the 32 counts on which she was convicted involved claims submitted before the anti-fraud provisions of HIPAA were in effect - and thus violated the Ex Post Facto Clause of the U.S. Constitution, which prohibits the after-the-fact imposition of punishments for behavior that wasn't a crime, or had more modest penalties, at the time it was performed.

"Although Hickman's actions prior to the creation of the health care fraud statute were indefensible, unconscionable, and undoubtedly criminal, we conclude that it is unfair ... to hold her accountable for restitution for Ex Post Facto convictions," the 5th U.S. Circuit Court of Appeals ruled in U.S. v. Hickman (No. 02-20174). The bad news for Hickman: While the appellate panel ordered the trial court to resentence her, its opinion suggests that the restitution amount - not the hefty jail term - was the element of the sentence that didn't pass constitutional muster. To see the opinion, go to www.ca5.uscourts.gov/opinions/OpinHome.cfm. Lesson Learned: Billing companies should take pains to recognize the sanctity of physicians' billing numbers: In originally slapping Hickman with her whopping sentence, the trial court explicitly noted that doctors had been victimized by her when she meddled with their billing numbers without their knowledge.