Admitting To Unethical Behavior Without Counsel Will Cost You Your Professional License.

The Commonwealth Court, on November 6, 2014, handed down Van Ness v. Bureau of Occupational Affairs. This decision is a text book discussion of specific conduct upon which Pennsylvania’s licensing boards will base their decision to strip a licensee of their professional license. A guilty plea or admitting to an employer or Board investigator that one has engaged in fraudulent billing services in the course employment will be the basis for disciplinary action.

Van Ness worked as a independent contractor, physical therapist for a rehabilitation entity. He provided physical therapy to special education students on an as needed basis. Unfortunately, Van Ness both over billed and did not keep proper track of his time and effort for the patients/clients for whom he worked and then incorrectly and illegally billed for his services. Upon being confronted with over 400 hours of over billed services, constituting 600-700 entries of services rendered, totaling over $16,000, Van Ness admitted to his employer/contractor that he did not do the work and he needed the money. This was an admission of engaging in fraud based upon greed.

Upon being reported to the Physical Therapy Board and attending a hearing, the hearing examiner found that Van Ness participated in the use of a communication containing false, fraudulent, deceptive or unfair statements when he submitted fraudulent bills for payment of services he did not render. Although there was a finding for a disciplinary basis, 49 PA. Code section 42.24(5), the hearing examiner suspended Van Ness’s license for six months. The Commonwealth sought a complete license revocation.

The PT Board reviewed the hearing officer’s finding of facts and conclusions of law, determined that every intentional entry of false information for billing records constituted a separate serious offense each of which demeaned the reputation of the healthcare system and medical practitioners. Concluding that Van Ness engaged in this type of behavior consistently for a four month period purely for greed, “placing his desire for financial gain over the treatment needs of special needs children for whom he responsible, “the board rejected the six-month suspension suggested by the hearing officer and imposed a five-year license revocation.

Van Ness appealed arguing that the PT Board did not consider his post incident rehabilitation and consistent legal conduct acting as an occupational therapist with out further incident. The Commonwealth Court determined that the Board was fully within its authority to enforce a five-year license suspension based upon a code of ethics violation. The Court did not differentiate between an ethics violation or criminal charges to which Van Ness could have been subject had there been a criminal investigation.

The import of this case is significant. Initially, do not make any admissions to an employer, contractor, or state investigator of any type of billing irregularities. Van Ness was not criminally charged. He did not enter into any ARD program or guilty plea for which he was subject to a conviction and other disciplinary conduct. There was no evidence in the record of complaints by occupational therapy clients of service not being rendered. There was no forensic testimony of billing code violations, types of treatment or services not rendered compared to the actual services rendered and incorrect billing codes suggested, or any other evidence in the case. The only evidence was his own admission.

Apparently the entire disciplinary action was predicated upon Van Ness’ own words. His admission to culpable ethical breaches for whatever reason, cathartic or not, doomed his case. Any admission to this type of criminal behavior in the current enforcement atmosphere of heightened sensitivity to Medicare/Medicaid fraud schemes creates an almost insurmountable suggestion of future disciplinary action. Contacting counsel to address how to proceed with any type of state-based investigation, employment related inquiry, or work related discipline is important. Unfortunately for Van Ness he did not do that. Please call me to discuss your case.

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