A sentencing date has been set for Richard Toussaint, an anesthesiologist and co-founder of the battered Forest Park Medical Center hospital chain who was convicted earlier this month of healthcare fraud.
He will learn his sentence on June 30 at 9:30 a.m., although court filings show Toussaint plans to file a motion for a judgment of acquittal by arguing that the state’s evidence was insufficient. A jury spent just three hours deliberating before returning the guilty verdict on March 4 on seven counts of healthcare fraud. The state presented evidence that he filed $10 million in bogus claims to Blue Cross Blue Shield of Texas, UnitedHealthcare, and the Federal Employee Health Benefits Program, billing for procedures he was not present for and directing others to sign off on his behalf. He faces 10 years in prison for each count as well as $250,000, amounting to 70 total years and $1.75 million.
The feds presented evidence showing that Toussaint medically directed two patients while under anesthesia and also billed for medically directing six patients at two different hospitals in overlapping times, which the prosecution asserted to be fraud. The 18-month scheme allegedly occurred at Forest Park Medical Center’s now-shuttered Dallas flagship and at Doctor’s Hospital at White Rock Lake.
In Toussaint’s motion for acquittal, defense attorney Richard Roper argues that the state did not present evidence sufficient to prove its accusations. It alleges that the state’s foundation is based on the Medicare Seven Steps Rule, which establishes when an anesthesiologist can bill for medical direction. The rule is approved by both the Centers for Medicare and Medicaid Services and the American Society of Anesthesiologists, but not necessarily private payers.
It requires the anesthesiologist to perform an examination and evaluation before the procedure; prescribe an anesthesia plan; personally participate “in the most demanding procedures in the anesthesia plan” including induction and emergence; make sure a “qualified individual” performs any tasks the anesthesiologist does not’ monitor the course of the administration; remain physically present during “all key and critical” portions of the procedure; and provide post anesthesia care. But Roper maintains that the prosecution “failed to provide sufficient evidence to prove beyond a reasonable doubt that Dr. Toussaint only signed the records and did nothing more or that the service he provided constituted no care.”
Roper says his client was at the hospital in these cases, often standing just outside the procedure room and was available if needed.
“Again, the government based the assumption upon the Medicare Seven Steps Rule and the note ‘present’ meant Dr. Toussaint had to be physically located within the same operating suite as the CRNA throughout the procedure,” the filing claims. “The government has wholly disregarded that supervision is a real and reimbursable service that has less stringent and undefined requirements that do not, even under Medicare payment rules, require meeting all of the Medicare seven steps for ‘medical direction.’”
The filing also says none of the claims were false—when he was anesthetized for a procedure and billed for it, he had already passed over his duties to another physician. But because “only one bill could be submitted for the two physicians who performed the case,” Toussaint requested reimbursement under his name alone. Another count contends that the claim was submitted in error because of a case that had to be rescheduled and a date was not changed. And the allegation that he was flying while a procedure he billed for was underway is also bunk because he passed off duties to another doctor, similar to what happened when he was under anesthesia.
The government notes past precedent that found a jury’s verdict must “be affirmed unless no rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense to be satisfied beyond a reasonable doubt.” That is not the case here, the prosecution contends.
A judge has given Toussaint until March 31 to formally submit the motion for judgment of not guilty. He is allowed to spend his remaining time at his Highland Park home.