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We are joined by Ron Chapman II, a federal criminal defense attorney, who sheds light on the increased scrutiny that physicians are facing from regulators. During our conversation, Ron delves into the impact that legal challenges can have on the careers and personal lives of physicians. We explore the complex nature of navigating the legal system and discuss common misconceptions among physicians regarding legal risks. Additionally, we examine the role of compliance systems in safeguarding against regulatory scrutiny.

Ron Chapman II is a federal criminal defense attorney.

He discusses the KevinMD article, “Shielding physicians: the untold story of legal preparedness.”

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast, and get CME for this episode by clicking on the CME link in the show notes. Today we welcome Ron Chapman. He’s a federal criminal defense attorney. Today’s KevinMD article is “Shielding physicians: the untold story of legal preparedness.” Ron, welcome to the show.

Ron Chapman II: Thank you very much for having me.

Kevin Pho: So we’ll talk about your article in a little bit. First off, just briefly share your story and journey.

Ron Chapman II: Sure. As you mentioned, I’m a federal criminal defense attorney. I previously was in the United States Marine Corps, and when I got out I decided to continue working in the criminal arena, but I decided to help health care professionals. My father was a lifelong defender of health care professionals. I have a passion for doing that, and it was right around that time that a lot of doctors were being prosecuted for health care fraud and drug trafficking. So for the last about 12 years, that is just about 100 percent of my work, defending health care professionals in those sorts of cases.

Kevin Pho: All right, so give us a sense of some of the common situations and cases that you find yourself defending health care professionals in.

Ron Chapman II: Absolutely. So we can see some trends when we look at the prosecution in these sorts of cases. Typically doctors tend to be, in many cases, foreign, older, in many cases minority as well. And one of the things that we’re noticing is that physicians who are more likely to be targeted are those who may not have adapted as well to the documentation and coding requirements that have been so cumbersome for many physicians.

And that’s one of the issues that I have, and one of the reasons why we’re so passionate about representing folks here, because the requirements, as you know, related to Medicare and the insurance companies are so cumbersome, and even more cumbersome for those who are not used to utilizing that sort of technology, which has been a concern.

We’ve had a tremendous amount of success, I’d say, over the last two years. I think we’ve taken about eight cases to jury trial, and about six of them ended up in a full and complete acquittal. We’ve had victory at the United States Supreme Court level, as well as the circuit appellate courts too.

Kevin Pho: So just to build on the example that you just mentioned, when you have physicians who may not be familiar with the specific documentation requirements that Medicare requires, what would be a typical scenario or an example of that?

Ron Chapman II: Well, let me give you a really good example, and this was a case, United States versus Kousa, I tried out in Kentucky less than a year ago. It was actually last summer.

Dr. Kousa was indicted for issuing prescriptions unlawfully. He was acquitted of all of that. But he was also indicted for health care fraud. The allegations were that he was not interpreting his own EKG results but was billing for a code that included interpretation. Dr. Kousa’s response: the EKG provides the interpretation, I reviewed that and put that in the record, I thought that was sufficient. They put an expert on the stand to say, no, that’s not how we do it, you have to do your own interpretation, you have to write it on the EKG.

Here’s the problem. The code in Kentucky for Medicaid gave you about $1.93 for that entire EKG and interpretation. When the jury heard that fact, I think some eyes rolled, and they realized that this doctor was being prosecuted for felony convictions, federal felony convictions, for a bill that required so much work, all the leads and the interpretation, that you just get $1.93 for.

Kevin Pho: All right, so let’s talk in particular about this KevinMD article that you co-wrote. It’s titled “Shielding physicians: the untold story of legal preparedness.” Now, for those who didn’t get a chance to read that article, just tell my audience what it’s about.

Ron Chapman II: Sure. One of the things that we’ve noticed over the years is that because doctors are being targeted when they don’t necessarily know or understand their requirements, the necessity of compliance becomes a lot greater.

In speaking with a lot of physicians, I was just talking to the Pennsylvania Pain Society last weekend, and speaking with a lot of physicians, I’ve seen that many are reluctant to get compliance and get a compliance audit or review done. Those that are reluctant can often just be playing with fire, because the government regulations are so onerous that you may not be in compliance.

And so this article was really to discuss some of these cases where we’ve seen, in the case of Dr. Bothra, jailed for three years, ultimately acquitted. In some of these cases a good compliance program would have prevented the parade of horribles that happened to many of these doctors. So I started a compliance company designed to help physicians with this, to get compliant, to follow the government regulations, to take that burden off their back before the government comes knocking.

Kevin Pho: So what would be some typical scenarios where physicians would not have a compliance program to provide that kind of oversight? What would be typical specialties that they’d be practicing in, typical accusations against them?

Ron Chapman II: Yeah, absolutely. We’re seeing this a lot in family practice, in pain management. Many people think they have a compliance program because they have a compliance officer, but oftentimes that person isn’t properly trained. We at CCG can take care of that for you.

I just did a lot of work in the ketamine space. There’s a lot of cash-based ketamine practices for infusion opening up. Many of them feel that they’re compliant because they’ve read some information, but some of the clinics that we’ve looked at, they need to make some changes to the structure and format of their delivery of health care, from storage of controlled substances to the staff and the way that they’re trained. A lot of changes need to be made.

I would say those are the three big areas. There’s a lot of hot areas too. Peptides, if you’re getting in that space, we need to make sure that we get a proper compliance review because of the kind of gray nature of the regulations currently.

Kevin Pho: So as it typically stands, you mentioned family physicians. Would you say that the majority of them did not have any compliance program at all, or did they have something that just wasn’t, I guess for lack of a better word, compliant enough?

Ron Chapman II: Well, that’s really the question. What we notice is that the compliance requirements are so onerous that really the large group practices, hospital systems, the corporations can have them, but that wasn’t affordable for a smaller family practice. And that’s one of the things that we’ve tried to do, is scale that so that it can be affordable for those practices.

But with respect to family physicians, yes, I mean, you may have an office manager, you may have an NP or PA, maybe a nurse or a medical assistant, but you really don’t have the ability to have a full-time compliance person. So you’ve really got to look outside the organization to bring people in for that advice and those spot checks, in order to document compliance and make sure that you’re safe.

Kevin Pho: So you talked a little bit about this earlier. Let’s say for a private practice family physician, for instance, what exactly would an appropriate compliance program look like?

Ron Chapman II: There’s seven elements, and these are clearly laid out in Department of Justice guidance. In fact, the Department of Justice says if you have a compliance program and you’re doing your best to make it work, we will give you the benefit of the doubt, which is great. But there’s seven elements, and I can go through some of the important ones.

First, we need policies and procedures. If you’re a pain management doctor and you supervise other doctors or NPs, policies about what types of things are appropriate in the clinic and what may not be appropriate, very helpful for you. Drug testing policies, documentation, training of staff on those policies, so we don’t put the policies on a shelf and say we’ve got policies, we’re safe. We train the staff on them.

Then we audit and monitor compliance with those policies, and that’s what we do. We go in and take a look to make sure that those policies are being followed. And then when we find violations of those policies, we update the policy first to make sure that it’s comprehensive and people understand it, update the training, but then we also take some sort of corrective action.

This is not a foreign concept. Every business uses it. We’ve just got to make sure that we do it in the health care space, so that we can ensure that we are growing and adapting with the changes in our environment.

Kevin Pho: Now, for those primary care physicians who may be listening to you now, and the majority of them do not have an appropriate compliance program, how worried should they be? Should they be looking over their shoulder? Should they be expecting a knock on the door? How worried should they be?

Ron Chapman II: I would be more worried the higher risk the activity that I’m engaged in. That’s why I mentioned pain management, interventional pain management. We have the ketamine infusion, going to be a higher risk space. Peptides, absolutely a higher risk space. If we are prescribing a fair amount of pain medication, you’re going to be in a higher risk space.

You can find out if you are high-risk by, I mean, you can call us and we can tell you, but we look at the Office of Inspector General priorities for the year to see what they’re looking at, and priorities for prior years to see if that is a traditionally investigated activity.

There’s a spectrum. If I’m a solo family doc and I’m just handling the bumps and bruises and coughs and colds, not very high risk. If I am a former OB/GYN who has taken on a lot of pain patients, and now 60 percent of my population is receiving oxycodone, very high risk. You’ve got to figure out where you are and adjust your compliance priorities to match.

Kevin Pho: So let’s say a physician is out of compliance and they run into trouble regarding the regulatory process. Just walk us through the process for those who aren’t familiar, because I’m sure, as you know, a lot of physicians just aren’t familiar with legal processes in general.

Ron Chapman II: Absolutely. So there are many different ways that the government can sort of catch up to you. It might be the state licensing board through an investigation. It may be the Department of Justice through a grand jury subpoena. It could be an insurance company through an audit, or the Medicaid Fraud Control Unit, which operates in every state, through an audit as well.

A lot of people would think that the agency going after you is sort of selected based on the severity of the perceived offense, and unfortunately that’s not the case. The agency that goes after you is the one that received the complaint. A whistleblower inside your practice blows the whistle and goes to the Department of Justice, the Department of Justice is looking at you. If they go to the state licensing board, the state licensing board is looking at you. So oftentimes the case starts where it ends up. And of course we have a lot of hammers out there looking for nails, and so Department of Justice investigators, they’re already going after you, they’re going to keep looking until they find that nail that they’re looking for.

The processes are all different, but one thing is certain. The first thing any physician has to do: get a health care attorney who’s been there before. Do that full, thorough internal investigation into the issue so that we can understand whether there is a problem, and collect all of the evidence. And then we go through the same procedural due process that’s afforded in all of these proceedings to advocate for a physician. You don’t make statements, you investigate, you get counsel, and you move forward to defend yourself most appropriately.

Audits, they’re not a problem. They happen all the time. You just have to approach them appropriately. It’s sort of the cost of doing business in this arena.

Kevin Pho: So you mentioned earlier, when you were giving some examples, that some physicians when they’re first accused are ultimately acquitted. Approximately what percentage of physicians are ultimately acquitted whenever they run into regulatory problems?

Ron Chapman II: The percentage in federal criminal cases is very low. Nationwide you have a 0.4 percent chance of an acquittal if you are indicted federally. That is true for almost all defendants. That number, the acquittal percentage, is a little higher when we’re talking about what they call white collar offenses, physicians being prosecuted, because the jury sees them a little bit differently. But it’s still not very high. If you look at the percentages, you may see four or five percent of physicians who go to trial in these cases being acquitted.

I’ve been fortunate enough to have some success in this arena, but that’s principally because this is all I do, and I do it around the country, so I’m able to learn the prosecution’s tactics, mold my investigation and my defense strategy to what I’ve seen work before, and bring that case to the jury. The other addition is that I have a strong team, experts and other staff behind me that know health care very well. They can do audits and investigations and expert reports. And so we sort of have this kind of off-the-shelf solution for physicians to utilize. But very tough to get acquitted, and very fortunate that juries are able to spend the time looking at these cases and my clients and provide them benefit.

Kevin Pho: Tell us about some of the misconceptions physicians have regarding the regulatory process, and any myths that you’d like to clear up.

Ron Chapman II: Yeah, I think this first misconception is common amongst physicians and people in the U.S. population. They believe that they may have the ability to talk their way out of trouble once the investigator is at their door. And unfortunately, I wish that that was the case, but that’s increasingly not the case. Usually if an investigator is approaching somebody, they’ve already done so much work that they’ve formulated some sort of belief that wrongdoing has occurred, and this is the time where you need to really spend the time and the resources to get an attorney and understand that.

The next misconception is that any attorney can handle these types of matters. I’ve taken over a lot of cases from the wills and estates attorney or the business lawyer that happened to defend the practice. And if you’re facing a Medicare audit, you’ve got to get a Medicare audit lawyer. This field of law is so specialized, like the practice of medicine. You need to go with a specialist as opposed to a generalist.

The other misconception, and this is one that every time I speak to a group of physicians I’m sure to highlight, is the misconception that it can’t happen to you. Often we see physicians in the medical community who are indicted as pariahs. We immediately separate ourselves from them when we’re physicians. We might say, well, they’re doing the dirty stuff, we don’t do any of that. The reality is that perception was generated by press releases and kind of biased news coverage.

The physicians that I’ve seen indicted for these cases, many of them are not much different than any other physician that I’ve reviewed or been involved with before. Dr. David Lewis, well educated, he’s in the article, credentialed physician, very skilled at interventional anesthesiology, targeted, wrong time, wrong place, ultimately got acquitted. Dr. Kousa, I just talked about earlier. The most recent one, Dr. Kendall Hansen in Covington, Kentucky, fully acquitted. In fact, unfortunately I had to reschedule the podcast because the jury came back when we were supposed to meet earlier. He was an amazing physician, and he was targeted.

So the misconception is that it can’t happen to me, or that it won’t. The reality is many physicians are targeted, and you’ve really got to get a compliance plan in place.

Kevin Pho: So other than implementing a robust compliance plan, is there anything else independent physicians could do to protect themselves from regulatory scrutiny?

Ron Chapman II: Absolutely. One thing that I noticed, and maybe this also goes into the misconception column, we sometimes interpret regulations improperly. A lot of physicians looked at the CDC guidelines and said, oh no, I have to cut my patients down below a certain morphine milligram equivalent, otherwise I’m going to get in trouble. But that’s not what the CDC guidelines say. Some state regulations started to say that, but the reality is we sort of had this race to the bottom, physicians believed that they must cut patients down.

I think that instead of focusing purely on these types of regulations, what we should focus on is how can we adapt to the regulations in a way that is delivering compassionate health care to our patients. One good example of this is many physicians, in a rush to document, will document function and just say, patient indicates that they have an inability or decreased function. That doesn’t get us there. Were they able to drop the kids off at school, or go for a walk with their wife? What were they able to do?

Exercise some compassion in your charts. And honestly, if I’m defending you and you’ve done that, shown what you’ve done to help these patients, if you’re a pain physician particularly, you’re going to be much better served for it. And that’s, I think, what the government really wants you to do, is to make sure that you’re fully documenting. So don’t be in such a rush to comply that you forget the human side of medicine. And I know that’s tough, but that’s something we should always be mindful of.

Kevin Pho: We’re talking to Ron Chapman. He’s a federal criminal defense attorney. Today’s KevinMD article is “Shielding physicians: the untold story of legal preparedness.” Ron, we’ll end with some of your take-home messages to the KevinMD audience.

Ron Chapman II: Absolutely. The take-home message, obviously we’ve repeated it a few times now, but get that compliance plan. Just take a good look at your practices and the regulations that apply to it. Find out where you are on that risk spectrum, and if you feel like you are taking on a little bit more risk, you might want to beef up some of the components of that compliance plan. But otherwise, practice the best way that you know how as a skilled physician. And thank you so much for having me on the show. Wonderful experience.

Kevin Pho: Ron, thank you so much for sharing your perspective and insight, and thanks again for coming on the show.