Healthcare risk managers must be careful not to risk criminal prosecution of the organization or its members from activities that may seem innocent, legal experts say. Some activities are particularly prone to criminal prosecution if risk managers are unaware of exactly how they are being conducted in the organization.

Although most criminal investigations in the healthcare industry involve companies that were aware of breaking the law and had intent to do so, it is possible for the organization to be drawn into criminal areas by individuals, says Sarah Hall, JD, a former federal white-collar crime prosecutor and now senior counsel with the Thompson Hine law firm in Washington, DC. She has extensive experience in prosecuting criminal healthcare fraud.

“An example would be acquiring a physician practice and you do not have good oversight of what these individuals are doing,” Hall says. “The organization as a whole may not be willingly and knowingly engaged in criminal fraud, but you could have individuals who are, and that will draw attention from prosecutors.”

DOJ Is Watching

The Department of Justice (DOJ) has focused intently on the healthcare industry for several years now, with the DOJ Medicare Fraud Strike Force convicting thousands of people across the country. The Trump administration’s fiscal year 2019 budget request includes $770 million for investigating and prosecuting healthcare fraud, up from the $751 million budget in 2018.

There are certain healthcare activities that are on the radar of prosecutors, Hall says. Opioid prescribing is a hot area, with physicians facing strict prescribing and reporting requirements. (For more information on the risks from opioid prescribing, see the story in the April 2019 issue of Healthcare Risk Management, available at: Other targets for prosecutors include durable medical equipment, home healthcare, upcoding, billing for unqualified workers, kickbacks, and robo-signing.

Robo-signing refers to practicing medicine without individual medical judgment for each order, prescription, or course of medical treatment, Hall explains.

“It is basically an automated course of prescribing without the necessary individual level of medical assessment attached to it,” Hall says. “For example, robo-signing can crop up in a clinic setting where forms are prefilled and you have nonmedical professionals ordering drugs. The medical doctor who is responsible for these orders is just presented with documents that have prefilled, predetermined medical outcomes without seeing the patient personally or without exercising the appropriate level of medical judgment for each individual.”

From a hospital or corporate level, the risks from robo-signing can be minimized by familiarity with how clinicians operate and clarifying expectations through policies, Hall says. The hospital or health system also may conduct audits to ensure proper procedures are followed.

“If you see that there are 100 prescriptions for oxycodone written on a day when the doctor is on vacation in Aruba, that’s an extreme example of the kind of thing that should raise a red flag and prompt further investigation,” Hall says. “If it happened that one day you know about, it could be happening other times also. An investigation might include checking time cards to see if the person who was purporting to write the prescriptions was actually reporting to work that day.”

Comply With Worker Requirements

Billing for unqualified healthcare workers is another risky area, Hall says. Healthcare employers run afoul of the rules by failing to establish appropriate controls to ensure the person actually treating a patient has the right level of qualifications, she says. Ensuring compliance can be difficult when payers have different requirements, but the employer must have procedures in place to ensure that it is billing for the right level of worker.

Healthcare employers can risk criminal prosecution when, for example, a physician assistant cares for a patient but the hospital bills for care by a physician or someone else with a higher reimbursement rate than the assistant, Hall explains. Fraud also can be alleged when workers are required to be supervised by a higher level worker but are not. In essence, the reimbursement is for both the lower-level and higher-level employees, when in fact the patient was treated only by the lower-level employee, Hall explains.

In the event of an audit or criminal investigation, employers will want to have some way to prove where employees were during the disputed time, using electronic badging or other means to show that they met the requirements for billing, Hall says.

“If a company fails to implement appropriate controls, or if they are not followed, there is a chance that employees and medical professionals can enter the area of fraud. There may not be any criminal intent involved in that type of behavior, but rather just mere negligence or a failure of understanding,” Hall says. “That’s typically not going to rise to the level that criminal prosecutors will be interested in, but it still represents a problem that may get the attention of payers and other regulators.”

Criminal Charges Chill Discussion

Criminal charges also are possible after adverse events, not just fraud allegations. In a current case, a nurse in Virginia is being criminally prosecuted for a fatal medication error, even though state health officials investigated and decided not to discipline her or restrict her nursing license. The nurse made a fatal medication error when she overrode a safeguard on one of the hospital’s medication dispensing cabinets. The district attorney’s office has said the willful act was key to the decision to indict on charges of reckless homicide and impaired adult abuse.

Although uncommon, such criminal prosecutions can nonetheless be chilling to clinicians who must make critical decisions routinely, says Elizabeth L.B. Greene, JD, partner with the Mirick O’Connell law firm in Worcester, MA. She says criminal prosecution is not the appropriate way to deal with unintentional medical errors.

“Negligence does happen and medical errors do occur. Criminal prosecution is only going to chill the discussion that is necessary to recognize errors and address them,” Greene says.

“If people feel that there is a threat of criminal prosecution — even if, in fact, that is a rare circumstance — there is a potential negative impact on all patients. That kind of fear is contrary to everything the medical professional is trying to do addressing medical errors.”

If criminal charges are brought against a clinician, that can further shut down the communication process that otherwise might be vital to understanding the medical error and learning from it, Greene says.

“There’s a loss of the opportunity to move systems forward and find solutions. We’re supposed to be having these healthy conversations in the quality assurance and risk management communities, but what happens if we have more criminal charges coming?” Greene says.


• Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email:

• Sarah Hall, JD, Thompson Hine, Washington, DC. Phone: (202) 263-4192. Email: