Doctors and Insurance Fraud Audits
Audits by insurance companies and the federal government have increased in recent years, particularly concerning alleged Medicaid and Medicare fraud. These audits may lead to criminal investigations and charges that can be challenging to overcome. Many fraud charges pertain to billing for patient services, requiring adherence to various regulations about issuing bills and documenting the services underlying those bills. For instance, a lack of documentation may lead an insurance auditor to conclude that a doctor has been fraudulently billing insurance companies or Medicare for “unnecessary” medical procedures or treatment.
The Texas Medical Board and Insurance Fraud Investigations
An insurance fraud investigation alone can trigger disciplinary proceedings before the TMB. There is no requirement that you be convicted of insurance fraud before the TMB can take disciplinary action against your medical license.
Tex. Occ. Code § 164.051 provides that the TMB can take disciplinary action against your medical license if you are convicted of a felony or a misdemeanor involving moral turpitude. However, Tex. Occ. Code § 164.052 states that physicians commit a prohibited practice that can result in discipline if they commit unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public. “Unprofessional or dishonorable conduct” is defined under Tex. Occ. Code § 164.053 as any act that violates state or federal law if connected with the practice of medicine.
Insurance fraud that has to do with medical billing is likely sufficiently related to the practice of medicine to qualify under this section. Furthermore, this section explicitly states that a complaint, indictment, or conviction of a criminal offense is not necessary to enforce the above provision. Proof that you committed the act while practicing medicine is sufficient for the TMB to find that discipline is warranted.
Furthermore, 22 Tex. Admin. Code § 190.8(2)(J) explicitly includes: “providing medically unnecessary services to a patient or a third-party payer that the licensee knew or should have known was improper” as a rules violation for physicians. This section goes on to state that “[i]mproper” means the billing statement is false, fraudulent, misrepresents services provided, or otherwise does not meet professional standards.” These rules provisions include insurance fraud as a basis for disciplinary action.
TMB Disciplinary Proceedings
If the TMB determines following an investigation that you have committed insurance fraud, regardless of any criminal charges you may be facing, the TMB is likely to notify you of disciplinary proceedings. You will have the chance to respond to those proceedings, as well as meet informally with your defense attorney and TMB staff members to attempt to resolve the matter by agreement. If you cannot reach an agreement on the disposition of the disciplinary proceedings, the case can be scheduled for a contested hearing before the State Office of Administrative Hearings (SOAH). An administrative law judge (ALJ) will hear your case and submit a recommended order to the TMB, who then will issue a final order in your case.
Sanctions in TMB Disciplinary Cases
Sanctions against your medical license in insurance fraud cases can be grave. Potential sanctions as a result of any disciplinary proceedings may include:
- Revocation or suspension of your license
- Placement on probation during a suspension of your license
- Public or private reprimand
- Placement of restrictions or limitations on your license, such as periodic board review
- Assessment of an administrative penalty
If you are initially convicted of a felony, the TMB is required to suspend your medical license. However, once that conviction becomes final, the TMB must revoke your medical license.
Potential TMB Sanctions in Insurance Fraud Cases
The TMB must consider certain factors in determining the appropriate sanctions against a medical professional, including:
- Whether you are being disciplined for multiple violations of the law or rules applicable to medical professionals
- Whether you previously have been disciplined by the TMB
Insurance fraud cases typically involve multiple allegations of billing or other violations of the law that often occur over lengthy periods. As a result, doctors may be subject to harsher penalties by the TMB for insurance fraud than cases in which they receive discipline for one isolated incident.