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Fraud conviction of physician and his wife highlights disturbing trend
Recent fraud conviction of physician and his office administrator wife highlights the risk of allowing a spouse to run a medical practice.
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As readers of this column are aware, part of my responsibility is to identify enforcement and compliance trends in order to alert physicians to areas of risk so that you may take appropriate steps to protect yourselves.
An appeals court decision in early August confirming the conviction of a neurologist in northern Virginia is an example of what I have seen as a disturbing trend in the prosecution of physicians, generally, and ophthalmologists, in particular, and may provide a warning to some of you.
In this case, Abdorasool Janati, MD, was convicted of conspiracy and health care fraud. What is unusual and significant is that his co-conspirator was his office administrator, who is also his wife. Mrs. Janati was convicted as well, and absent a reversal by the U.S. Supreme Court, both will go to jail.
Mrs. Janati’s inclusion as a target of the government’s prosecution was not arbitrary; according to the appeals court opinion, as the office manager of her husband’s practice, Mrs. Janati allegedly participated in decisions relating to the improper billing upon which the conviction was based. Nevertheless, relatively few cases filed against physician practices target administrative staff, generally because administrative staff rarely is in a position to profit from overbilling or other improper conduct. Where the spouse of the physician is the office manager or is in an administrative position of authority, however, the situation is different, as the spouse will benefit from any payments received improperly.
Other cases
 Alan E. Reider |  Allison Weber Shuren |
The Janati case caught my eye because I am aware of at least three current cases involving ophthalmologists where the spouse played an active role in the physician’s practice and became a central figure in the government’s investigation. In fact, in two of the cases, the spouse’s actions appear to be the principal focus of the investigation. Although both of those cases remain pending, it appears that in one of those cases it may be the spouse, not the physician, who is at risk of criminal prosecution.
Perhaps even more disturbing, however, is the third of the three cases. In that case, the physician recently agreed to plead guilty to health care fraud and as a result will go to jail. What is not apparent, however, is that the government threatened to prosecute the spouse, as well as the physician, unless the physician agreed to a plea. Rather than risk the uncertainty of trial, where both could have been convicted and sent to jail, the physician agreed to accept the plea.
This last case is disturbing for several reasons. In my view, the government’s threat to prosecute the physician and the spouse absent a plea from the physician is abuse of prosecutorial power. The physician had been considering the risk of trial if it were his liberty alone that was at stake. But the suggestion that the physician and spouse would be unavailable to care for their children was not an acceptable option. Second, this result highlights the fact that having a spouse in a position of authority within a medical practice creates an unanticipated risk should failures in compliance result in an investigation and eventual enforcement action. In these cases, the government has far more leverage against the physician through its ability to offer a pass for the spouse in exchange for a mea culpa from the physician.
Know the risks
There is a third concern that may not be particularly well-received, but from my experience, appears to reflect a common theme. Although many spouses may be bright and capable, some simply are not experienced or able to assume the responsibilities of running a complex medical practice, particularly with the regulatory risks involved. A marriage certificate is not a coding certification or law degree. If a spouse is going to take the place of a highly skilled administrative manager, then the spouse should be certain to obtain the training necessary to do the job in an effective and compliant manner. Otherwise, the risks to the spouse and the physician may be greater than anticipated.
For more information:
- Alan E. Reider, JD, can be reached at Arent Fox LLP, 1050 Connecticut Ave. NW, Washington, DC 20036; 202-857-6462; fax: 202-857-6395; e-mail: reider.alan@arentfox.com.