Attorneys who specialize in health-care fraud say the government more often pursues cases that involve public dollars and larger sums of money. But at the same time, they said, authorities probably had reason to invest resources into the smaller-scale scheme allegedly cooked up by former football players.
“A major focus of current DOJ leadership is to deter and punish health-care fraud,” said Sandra Moser, a former chief of the Justice Department’s fraud section who is now a partner at the Quinn Emanuel law firm. “And they recognize that deterrence is effected in various ways, to include busting a scheme that might not break records for dollars lost but will be featured on tonight’s episode of ‘SportsCenter.’ ”
John Kelly, formerly the assistant chief for health-care fraud at the Justice Department, said the government often takes on a case such as this if there’s a bigger message to be sent.
“It’s salacious; it’s going to get headlines; it’s going to give them an opportunity to send a message that they’re focused on more than just Medicare fraud but they’re looking at fraud across all types of health-care benefit plans,” said Kelly, now a health-care fraud attorney at Bass, Berry and Sims. “I can definitely see why the government would be attracted to this case.”
The money involved can’t be compared with the billions that might be at stake in a Medicare case, he said, but because the NFL’s plan serves a smaller population, the $3.9 million the former players submitted in fraudulent claims still can be significant.
“If you’re talking about a private health-care benefit plan that’s designed to take care of former NFL players — who as we know might have some serious health-care issues and expenses — that’s a lot of money,” he said. “Four million dollars can buy a lot of services and products for folks who need it.”
According to the CBA, the reimbursement plan is jointly administered by the NFL and the NFL Players Association. Neither the league nor the union has commented on the case.
Assistant attorney general Brian Benczkowski said that by exposing the scheme, authorities were able to safeguard the plan’s tax-exempt status and ensure players with legitimate medical claims could continue seeking reimbursement.
“We pursue private health insurance fraud all the time at the department,” he said. “This is an $800 million or so plan intended to provide benefits to law-abiding former players and their families.”
While four of the 10 former players who have been charged in the case were arrested Thursday morning, including former Redskins first-round pick Carlos Rogers, most of the others later surrendered. Portis appeared Friday in U.S. District Court for the Western District of North Carolina and was released on a $25,000 unsecured bond. He was ordered to surrender his passport, and he is permitted to travel only in Virginia, Kentucky, Maryland and Washington.
Portis’s lawyer said his client is innocent. Court documents say the former running back allowed his personal information to be used for a fraudulent $54,000 reimbursement claim. Investigators say that two other former players — Robert McCune and Correll Buckhalter — were the ringleaders of the scheme and falsified paperwork and submitted reimbursement forms on behalf of other players, receiving kickbacks of up to $10,000 for their illicit services. The players sought reimbursement for high-tech medical equipment, often costing $40,000 to $50,000, that they never purchased or received, according to the indictments.
Nicholas Jurkowitz, a health-care litigator at Fenton Law Group, said the government often investigates health-care fraud that exists in a gray area in which some form of medical services are rendered that might not have been absolutely necessary. The fraud often originates with a health-care provider or a pharmacy, not necessarily with a patient or plan participant.
“Here, no one even got anything,” Jurkowitz said. “This is almost so basic that you’re just asking for trouble. It’s not very sophisticated.”
The investigation was triggered, according to Justice Department officials, when plan administrators noticed suspicious claims. The players sought reimbursement for a variety of medical equipment, beginning in June 2017, including ultrasound machines used to conduct women’s health exams and electromagnetic therapy devices designed for horses.
Most of the players were charged with health-care fraud, wire fraud and conspiracy to commit health-care fraud. As an orchestrator of the scheme, McCune faces 19 felony counts, but players alleged only to have shared their personal information, such as Portis, face just three.
The charges carry a legal maximum penalty of 50 years combined for those three alleged crimes, but the legal analysts expect much more lenient punishments for most of the former players. Plea agreements could be likely, the analysts said, but if any case results in a conviction, judges would take into consideration criminal histories, the amount of money involved and the exact role each played in the scheme when determining sentencing.
“Perhaps with other people, they would have tried to resolve this quicker before filing charges,” Jurkowitz said. “But there’s something sensational about the names here, and I think that’s a big driving force. The Department of Justice has made clear that health-care fraud is a major issue for them, and this is an opportunity for them to get some notoriety and tell people they’re taking this seriously.”
Adam Kilgore contributed to this report.