Feds go after DME attorney

Sunday, September 3, 2006

KANSAS CITY, Mo. - In what one industry watcher called an "extremely bold move," the U.S. Justice Department last month threatened to prosecute the attorney representing a DME company here involved in a Medicare fraud case.

The Justice Department claims that Bruce Simon, one of the city's leading criminal defense attorneys, knowingly accepted $124,000 in criminal proceeds as payment for his legal fees. Such a transaction is a federal crime. Government officials are seeking Department of Justice approval to begin criminal proceedings against Simon, who has denied any wrongdoing, the Kansas City Star reported.

While the government occasionally makes such a charge against attorneys representing alleged drug dealers, it seldom does so in criminal cases against DMEs, said Neil Caesar, president of the Health Law Center in Greenville, N.C.

"I've never heard it happen in anything resembling this context," Caesar said. "That money is not unusual for a major criminal case and doesn't indicate the attorney was overcharging."

What's more, Caesar called the Justice Department's threat to prosecute Simon an "extremely bold move."

"Every time the government tries to go after attorneys who are advising clients, they find a lot of backlash and a difficult time doing it," Caesar said. "Judges believe the constitution is important and that people are entitled to have advocates who do the best job they can for them. This seems to serve no purpose than to be a chilling effect."

Simon's client has been charged with taking part in a scheme that defrauded Medicare out of $2 million by billing for medically unnecessary power wheelchairs. Simon said he was paid out of an account that was not the initial subject of the government's indictment.

Indeed, in criminal cases, attorneys must be careful from where they get paid, said Lester Perling, a healthcare attorney with Broad and Cassel in Ft. Lauderdale.

In the past, for example, to avoid the chance of being paid with ill-gotten gains, Perling's firm has asked to be paid by family members not involved in the client's business. If they have concerns about being paid with illegal money, attorneys may also request that payment come from a home equity loan or an account not connected to the business.

"It is just a tactic the government uses to make it hard for defendants to exercise their rights to defend themselves," Perling said.