Insurance Fraud WINTER Civil suits allow auto insurers to take down organized fraud rings

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1 journal of Insurance Fraud in America WINTER 2014 Volume 5 Number 3 insight analysis ideas Published quarterly by the Coalition Against Insurance Fraud WINTER Deterring workers-comp fraud in San Diego Public-awareness efforts by the San Diego District Attorney s office warned county residents about fraud and have greatly expanded case referrals for investigation. By Dominic Dugo Civil suits allow auto insurers to take down organized fraud rings Automobile insurers increasingly are turning to civil suits to help counter the growth of complex, organized fraud rings. By Frank Goldstein, Esq. 14 Rational swindlers avoid crime when risk not worth the reward Criminology theory is widely used in many criminal justice areas, yet there is no application of these theories to insurance fraud. By Michael Skiba, PhD 19 Corporate dentistry bleeds Medicaid and vulnerable children Corporate-owned dental chains are exploiting the underserved market for low-income child Medicaid patients. By Debbie Hagan 25 TrendWatch: new developments about fraud in America Hall of Shame s No-Class of 2014 exposes newest master marauders Misclassifying of workers sparks more crackdowns. By Coalition Staff

2 journal of Insurance Fraud in America WINTER 2014 Volume 5 Number 3 From the publisher he JIFA is a window into all corners of the fraud world an incisive guide to what definitive trends T and practical solutions are afoot. Fraud fighters continually tinker with the formula for convincing consumers to stay away from fraud. Saturation bombing of anti-fraud messages has measurably helped level off workers-compensation schemes in populous San Diego County, a key regulator writes in this issue. Dental scams are nothing to smile about, a citizen blogger says. Chain dental firms are pulling low-income kids teeth and inserting steel crowns in worthless surgery that lines the dentists pockets with lucrative insurance payouts. Many scams can be explained by academic theories of crime. Deterring fraud succeeds by overriding people s rational choices to commit fraud. Make the crime too expensive and they may back off, writes an SIU with a PhD in insurance fraud. Fraud fighters are making the rational and irrational choices of fraudsters harder to bear every day. Find out uniquely why, and how, in this issue of JIFA. Sincerely, Get insiders info All rights reserved. For republishing information, contact Kendra Smith. 2 Journal of Insurance Fraud in America

3 Deterring workers-comp fraud in San Diego Flooding market with a stern tagline motivates consumers and businesses By Dominic Dugo I nsurance fraud costs California consumers $15 billion a year. 1 Approximately $4 billion of this amount is lost to workers compensation schemes. 2 As a result, the San Diego County District Attorney s Office has worked closely with the California Department of Insurance, insurers and the local community to aggressively investigate and prosecute this costly crime. Just as important, we also are working to deter future fraud. The traditional deterrence approach of highlighting prosecutions to community groups and insurers has shown limited success. However, with innovative thinking outside the box, a public-awareness campaign focused on crime prevention is helping reduce workers compensation fraud in the county. And it is succeeding at a fraction of the cost to prosecute. Law enforcement must keep in mind that decreasing the overall level of workers-comp fraud is the ultimate goal. Prosecuting cases is only one of the many tools in the District Attorney s arsenal. Designing an effective crime prevention strategy requires an understanding of the types of cases prosecuted, and the target audiences profiles. Applicant fraud is most commonly understood Abstract: Workers-compensation fraud is a problem in San Diego County, with a population of more than three million. Public-awareness efforts by the District Attorney s office warned county residents about fraud and have greatly expanded case referrals for investigation over the last three years. Suspected fraudulent claims also have largely flattened out. This suggests that the Crime Prevention Campaign has influenced people s attitudes and actions. The strategy over the last three years involved flooding the market with deterrent messages. Brochures were handed out and mailed throughout the county. Billboards were erected along freeways. Posters were distributed to business owners to warn employees and managers against scams. Insight Analysis Ideas 3

4 as workers comp fraud. This involves workers lying about an injury to obtain benefits they are not entitled to receive. Cases include employees faking a work injury, exaggerating the extent of a work injury, falsely claiming that an off-duty injury occurred at work, working at a new job while collecting benefits from the previous job, and/or lying about prior injuries. An entertaining video showing how the suspect is faking the injury usually accompanies these cases. find that robbers, drug dealers, auto thieves, sexual predators and gang members often have significant criminal records. Four types of employer fraud While employee applicant fraud is common, more than 50 percent of the cases the District Attorney prosecutes involves crimes by employers and providers. There are four types of employer fraud. First, employers may deny injured workers the full range of workers compensation benefits. An employer may pay a medical bill, persuade an employee to accept cash in lieu of filing a workers comp claim, or intimidate workers into using their personal health policies. Second, premium fraud involves employers lying to insurers to lower their workers compensation premiums. Employers in the underground economy may say their payroll or staff size is lower than they really are. They may pay workers in cash and then fail to report this payroll to the state and their insurer. Third, some employers operate their business without buying state-required workers-compensation coverage. For example, the owner of a restaurant with 10 employees doesn t purchase insurance to cover employees injured on the job. Workers could be dangerously exposed if they are hurt. Fourth, the county also prosecutes medical and legal providers for falsely billing insurance carriers for services never performed. Suspects include patients, doctors, chiropractors, lawyers and other professionals. Planning: Define audiences We have learned over the years that more than 95 percent of the defendants we have prosecuted for workers compensation fraud do not have a criminal record. This is a critical fact when designing an effective public-awareness approach. By contrast, we Drug dealers selling cocaine on the corner or gang members doing a drive-by shooting don t need to be told they are committing a crime that will lead to incarceration. It is obvious and well-known that these are criminal acts that will be prosecuted. 4 Journal of Insurance Fraud in America

5 However, a worker staying out on workers comp leave for a few extra weeks or employers paying some employees cash to reduce premiums may not readily realize their actions could lead to felony convictions. Thus, our crime-prevention awareness programs focus on informing and educating the community about workers compensation laws and the serious price that perpetrators will pay. With the exception of uninsured employers, workers comp fraud is a felony in California. The penalty is up to five years in prison. The county s top priority is to deter crime. Yet we understand that certain individuals will not be deterred from workers compensation fraud. Unfortunately, hardened criminals exist despite the community s best efforts to prevent fraud. They also may not be persuaded by outreach efforts. Therefore, the county has a dedicated team that investigates and prosecutes these criminals. Yet certain individuals will commit workers comp fraud because of an economic downturn or an opportunity to make easy money. We target this group of potential defrauders with public-awareness non-insurer sources. Today, our Crime Prevention awareness programs have drastically altered where our referred cases are sourced. The outreach efforts are generating a large volume of referrals. This is the effort that unfolded: Strategy: Flood the market During the last three years, the crime-prevention campaign has embarked on 11 high-profile public-awareness tactics. They have alerted the community that workers comp fraud committed by an employee or employer is a felony with serious jail time. Our strategy is to flood the market with short, easily understood messages using numerous outreach vehicles that are provided free of charge. This approach reinforces our prevention messages to as many people as possible. We seek to make our Hundreds of employers use the posters. One large grocery store chain laminated 800 of them. tagline as wellknown in the county as the AFLAC duck. The primary message or tagline on all material: Don t do it. Don t tolerate it. Report it: (800) Posters. A time-honored medium in a digital campaigns. A large percentage of these individuals can be persuaded to not commit fraud. The District Attorney s experience in the last three years demonstrates that aggressive crime prevention awareness campaigns can reduce fraud while also helping increase prosecutions. Two key results: Suspected fraudulent claims that insurers have officially reported to the California Department of Insurance have remained largely unchanged for the last three years. Historically, almost all workers comp fraud prosecutions originated from insurance industry case referrals. A small number of referrals stemmed from age posters may be the most effective and affordable anti-fraud tool in our campaign. Employees and employers were cautioned via 200,000 posters in English, Spanish and Chinese. Employers were warned not to illegally deny benefits, Insight Analysis Ideas 5

6 and employees were urged not to fake work injuries to collect benefits. Commit workers comp fraud, get a new outfit, the posters warned tongue in cheek about jail uniforms. Hundreds of employers use the posters. One large grocery store chain laminated 800 of them. A school district with a serious fraud problem even hung posters in restrooms. Posters also went to employers, insurers, government agencies and healthcare providers. We also fanned out with presentations to business and other community groups. Attendees often commented that the posters reduced workers comp fraud in their businesses. A state agency in the county with 1,000 employees had 500 open claims. Claims dropped 50 percent after the agency placed the posters throughout the workplace. Billboards. We placed 120 freeway billboards and transit-shelter posters across the county in November-December 2012 and again in Because Spanish speakers (roughly 38 percent of California s population) form the largest group whose primary language is not English, 40 billboards were in Spanish. An estimated one million people saw the tagline message. PSAs. Public-service announcements frequently aired on TV. Stations generously donated studio time to shoot the 30-second PSAs in English and Spanish. The messages were delivered by DA Bonnie Dumanis and her Spanish-speaking communications chief Jesse Navarro. The PSAs formed a succinct contact with San Diego residents. They provided consumers with deterrent messages and the fraud hotline number. More than 3,000 PSAs aired on nine English-speaking channels and seven Spanish stations during July 2012-May 2013, and July 2013-May A 20-minute Vietnamese television interview of Dumanis aired 12 times. Print ads. Paid ads formed another campaign prong. In one approach, we bought ads in English and ethnic newspapers, and community news outlets. Chamber of commerce newsletters carried the messages forward in More than 2,000 ads have appeared in nearly 50 publications serving these communities: English, Spanish, Chinese, Vietnamese, Japanese, Italian, Korean, Cambodian, Thai, Laotian, Filipino, African-American and Military. Thousands of people also cross from Mexico into the U.S. each day because the county borders on Mexico. So we ran ads in Mexican newspapers that are distributed at the Tijuana border. The anti-fraud posters appeared in the ads in each publication s language. Brochure. A brochure was mailed to 180,000 employers throughout the county in Just like the posters, the free brochures are handed out at all community events. Previously, 16,000 brochures were inserted into a local business newspaper. Community talks. We gave more than 120 presentations to community and business groups, amounting to roughly 6,000 people over the last three years. The target groups included chambers of commerce, private and public employers, insurers, employee groups and trade organizations. Business and labor groups were informed of their rights, duties and penalties when dealing with workers-comp benefits. The typical presentation explained the varied schemes and recent high-profile cases. Brochures and posters also were provided free of charge. Despite the relatively limited number of people the presentations reached, they often generated viable case referrals that saved tens of thousands of stolen workers compensation dollars. 6 Journal of Insurance Fraud in America

7 Trolleys & buses. More than 250,000 people use public transportation in San Diego County each day. As a result, we placed anti-fraud ads inside 640 trolleys and buses throughout the county during November-December Our well-known English and Spanish posters were used. Cross-border fliers. San Diego County has one of the world s busiest borders. More than 50 million people cross the border with Mexico annually. Thousands of people living in Mexico come to the county as day workers each morning. Capitalizing on the typical northbound traffic backups, we handed out 190,000 double-sided fliers (English and Spanish) at the Tijuana and Calexico border crossings throughout The flier, which is our poster in English and Spanish, educated consumers crossing the border about their rights and responsibilities under the workers-comp system. Radio ads. Consumers were alerted to comp schemes via radio ads. More than 300 ads aired on four radio stations along with 25 radio news interviews in 2012 and 2013 combined. The ads aired in English and Spanish. Facebook. The campaign broadened with a Facebook component to reach consumers of all ages who frequent this popular site. We bought Facebook ads in The ads were our posters. Visitors clicking on the ad were directed to the DA s newly redesigned insurance-fraud homepage. Visitors could conveniently download the brochure, watch the PSAs in English or Spanish, or get the hotline number to report suspected scams. The Facebook ad logged 3.3 million views in a brief two-month period. Google. The world s largest search engine was an effective outlet. Our posters, tagline and insurance-fraud weblink were positioned alongside Google search results as Sponsored links or subtle advertising. We paid per click to maximize budget efficiency. Importantly, the ad also was formatted for smartphones, tablets and desktop computers. This made the messages easily accessible to virtually every digital user in the county. The link pulled 1.1 million views during the two-month effort. Success: Crime flattens out Our workers-comp prosecutorial staff has remained largely the same over the last three years, while only 3-5 percent of our $4.5-million annual budget goes to public awareness. Several indicators suggest the campaign has succeeded. It has done so with such affordable use of these outreach resources. Indicator: Suspicious claims that insurers officially reported in the county have remained largely unchanged for the last three years. This comes after a steady growth in questionable claims for several years (See Exhibit 1). Exhibit 1: Insurer referrals Indicator: Investigations the DA opened increased 63 percent from 183 in to 298 in (see Exhibit 2). Prosecutions spiked from 88 to 146 over this span (see Exhibit 3). Convictions have risen from 58 to 91 a 56-percent increase (see Exhibit 4). Many other cases still are pending in court. Indicator: The above numbers point to a parallel fact: Referral sources have greatly expanded during the campaign period, especially by consumers. In turn, this has grown the number of cases for prosecution. Several major cases have earned convictions. Others are being investigated thanks to leads generated by the awareness campaigns. Dozens now are received each year. We re building community buy-in. Historically, almost all workers comp prosecutions stemmed from cases that insurers referred for potential investigation and prosecution by the DA. These referrals came from just 40 insurer investigators. How can just 40 investigators, however dedicated, be expected to uproot a large fraud problem in a county of 3 million people? The public-awareness campaigns worked to enlist the entire San Diego community as allies a potential anti-fraud army of millions. Referrals from throughout the community thus have risen sharply. The hotline rings off the hook at times, especially Insight Analysis Ideas 7

8 when billboards appear along freeways or PSAs air on television. People are thinking twice about workers-comp scamming. How many people are upset that a coworker is faking an injury? How many office employees know construction-company owners who are avoiding reporting full payroll to the insurer? field for law-abiding employers in San Diego County. The state and county are working hard to make this happen. We are enlisting partners such as employers, employees, workers and other stakeholders. Exhibit 4: Defendants convicted Exhibit 2: New investigations Indicator: Common sense tells us that since 95 percent of workers-comp defendants do not have a criminal record, our Scared Straight message that comp fraud is a felony crime does deter large numbers of potential perpetrators. Indicator: Anecdotal community feedback at public events says the awareness campaigns are reducing workers comp fraud. This healthy climate brings us ever closer to a goal of lower workers compensation fraud, more benefits for injured workers, and more-affordable goods and services for consumers. By continuing to innovate and think beyond the box, well-targeted awareness campaigns can have an impact on people s attitudes and actions. The result is a far-moreconducive environment for enabling workers compensation coverage to achieve its full potential in helping the county flourish. Exhibit 3: Defendants prosecuted About the authors: Dominic Dugo is chief of the Insurance Fraud Division for the San Diego prosecutor s office. He also oversees the office s public-awareness campaigns. endnotes Seek level playing field We must continue promoting a competitive and fair business environment, with a level playing 1 Reducing Fraud in California, California Department of Insurance, Advisory 1 Task Force on Insurance Fraud, upload/fraudreport.pdf 2 Conservative estimate extrapolated from multiple statewide and academic studies of workerscompensation fraud in California. 8 Journal of Insurance Fraud in America

9 Uncivil civil suits allow auto insurers to take down organized fraud rings By Frank Goldstein, Esq. C Civil actions give insurers a legal tool to counter the spread of complex rings ountering automobile-insurance fraud has become especially troublesome with the continued spread of organized crime rings in varied states. This was evidenced when law enforcement recently cracked a suspected major staged-crash operation in Florida. 1,2 In that case, investigators reaffirmed how well-orchestrated many rings have become in recent years. In fact, several automobile-fraud rings create files that both identify insurers they perceive as soft touches willing to pay claims and avoid prolonged anti-fraud efforts, and which carriers are more likely to fight back. I believe the rise of organized insurance-fraud rings can be linked in no small measure to many insurance carriers looking the other way and paying suspicious claims just to stop the bleeding. The thinking is, let s cut our losses and not get mired in a protracted legal fight that could cost more than the initial fraud. That position only emboldens aggressive fraud rings. This seeming money-saving decision likely has cost some insurers much more over the long term because perpetrators keep returning to the same well for relatively easy pickings. Large-scale scammers Abstract: Automobile insurers increasingly are turning to civil suits to help counter the growth of complex, organized fraud rings. Civil actions can be expensive and require a full commitment to seeing the action through. Insurers often barely break even after large legal expenses. Yet the suits signal to the criminal underworld that defrauding particular insurers is a no-win proposition. They also allow insurers leeway to take action instead of waiting for criminal charges to be handed down. Auto insurers increasingly are filing state and federal RICO actions. RICO allows insurers to present evidence of the defendant s entire criminal operation. This gives insurers a powerful legal tool to take down the complete enterprise. Insight Analysis Ideas 9

10 who have succeeded in one state often migrate to other states they believe lack the infrastructure to successfully combat their operations. Different locales, but the same insurers are hit up for fraudulent payments. This rise of organized auto-fraud rings comes with a price tag. Average automobile premiums must be raised to cover fraud losses; just how much depends upon the state in which an insured lives. In New York, for example, auto-insurance fraud costs residents $1 billion every year, state officials estimate. 3 This rise of organized auto-fraud rings comes with a price tag. No-fault schemes also add nearly $100 in extra premiums for the average family with two drivers in Florida, the Insurance Information Institute estimated at the height of a successful 2012 drive to reform that state s no-fault fraud laws. 4 Suits make statements A number of auto insurers, however, have actively begun using civil suits to counter organized auto-fraud rings. These carriers are willing to absorb usually significant court costs without assurances of full restitution. They want to send a statement to the public and criminal underground that targeting them exacts a large and untenable price. Insurers also can act decisively on their own rather than wait for the criminal system to accept and prosecute cases. The burden of proof is lower in civil cases than criminal actions as well, and can earn potentially large court awards that offer opportunities to bankrupt the ringleaders. All told, civil suits can be an imposing weapon. Overall, some insurers appear to be filing more civil actions to take a public stand against insurance fraud. The aim is to stop the crime on a global front. Otherwise the concern is that fraud rings will simply continue reinventing themselves and their scams, thus eroding insurer profits and raising customers auto premiums. 5 Led by several major insurers, numerous fraud cases have been litigated in recent years. Civil suits typically seek millions of dollars in restitution from fraud rings. In a case settled out of court days before trial, State Farm Insurance may have recovered as much as $20 million from the Palm Beach Lakes (Fla.) Surgery Center for wrongfully driving up medical costs by colluding with attorneys and medical device manufacturers in a 2013 no-fault fraud case. 6 In New York, Allstate filed a $30-million lawsuit against numerous doctors, attorneys and clinics involving a more than $400-million massive and sophisticated no-fault scam involving 22 healthcare firms, 10 licensed medical professionals and three attorneys in a case the FBI labeled at the time as the largest single no-fault auto insurance fraud ever charged. 7 Several defendants have pled guilty, with millions of dollars recovered to date. In August 2014, Allstate and the State of California won a judgment of more than $1.4 million against a Sonoma County business that billed for fraudulent auto-glass and windshield replacements. 8 Insurers may face reprisals So why don t all insurers litigate civil cases, and more often? Even though I litigate insurance fraud, I am not always convinced that filing a suit is the optimal course of action. There is much to consider. Filing a successful civil action typically requires significant substantiation to prove fraudulent activity. An insurer must be prepared to fight... long and hard. 5 A lawsuit usually is time-consuming and expensive. And insurers often are fortunate to break even because court-ordered restitution may have been laundered or spent. Beyond that lies the possibility of reprisal. Many defendants file a counter-suit almost immediately after an insurer files its action. Bad faith is one common allegation. Insurers must be certain of their facts. Although insurers lodge most civil suits in state courts, a growing number of actions are playing out in federal venues. Farmers Insurance, for example, sought nearly $2 million in a federal lawsuit filed in Minnesota against 46 chiropractors and an MRI firm it alleged was ordering unnecessary scans for auto-accident victims Journal of Insurance Fraud in America

11 State Farm filed a federal suit alleging a massive fraud scheme against the ASK GARY accident-referral service in Florida. The insurer alleges the large firm illegally referred crash victims only to medical providers controlled by owner Gary Kompthecras in Florida, Minnesota and Kentucky. 10 The defendants allegedly promoted their fraudulent enterprises by providing money to anyone who referred accident victims to the clinics, offering cash directly to patients who agreed to accept unnecessary chiropractic treatment, and dispensing treatment in a manner designed to maximize profits, rather than heal patients. RICO takes down rings Geico filed suit against a Florida chiropractic center and its recruiters in July The insurer was going after a suspected staged-crash ring that allegedly stole more than $2.3 million in bogus claims. 11 The insurer alleged civil conspiracy, common-law fraud, tortious interference with contractual relationships, tortious interference with advantageous business relationships and unjust enrichment, plus violations of federal RICO (Racketeering Influenced and Corrupt Organization Act) and the Florida Deceptive and Unfair Trade Practices. The suit illustrates that insurers may combine RICO with a wide range of other state and federal charges to cast a large legal net that increases the likelihood of a favorable verdict. Whether a state or federal action, RICO suits enable insurers far more freedom to present to the court a total picture of a complex fraudulent enterprise. Insurers can go beyond presenting evidence solely for a single false claim. RICO allows insurers the legal infrastructure to identify and take down the entire operation in civil court. A number of prosecutors and insurance companies are successfully using RICO charges. The federal law allows crime-syndicate leaders to be prosecuted for crimes they ordered or assisted in even if they did not directly participate in the criminal action. RICO has proved so effective on the federal level that 33 states have adopted RICO laws to enable suits against criminal enterprises at the state levels. 12 Suing to recover more than $185 million in fraud-related damages since 2003, 13 Allstate uses The insurer alleges the large firm illegally referred crash victims only to medical providers controlled by owner Gary Insight Analysis Ideas 11

12 RICO lawsuits to go directly after the leaders of organized fraud rings, beyond solely the lieutenants and foot soldiers. The tactic has worked, as evidenced by the company s $7-million judgment in its first Nevada medical-fraud case. 14 Filed in 2010, the suit challenged several medical professionals and personal-injury attorneys, and sought to recover funds from 78 auto-accident claim settlements. Allstate alleged that each defendant violated Nevada and federal law based on a pattern of deceitful behavior. Carriers using civil suits, along with support legislation and landmark court cases, believe they must make a stand or automobile-fraud will continue escalating. such a protracted legal battle, and thus let other insurers fight the fight. Insurers taking longer view Carriers using civil suits, along with support legislation and landmark court cases, believe they must make a stand or automobile-fraud will continue escalating. While cost-benefit analyses and the time commitment remain important considerations when deciding whether to file civil cases, insurers are moving forward for other reasons Many are taking a closer look at their exposure, searching for patterns and trends, and then filing suits even with no immediate return on the investment. I believe this is leading many carriers to As Allstate puts it: exaggerating treatment reports, providing unnecessary chiropractic services, preparing fraudulent bills and making unnecessary referrals to healthcare providers for their own financial gain. RICO suits also can stretch expensively for years. Allstate s federal lawsuit, for example, alleged deception and coercion against accident victims by medical clinics in Alabama, Indiana, Ohio and Texas. The case also involved a Louisiana telemarketing firm and 66 defendants in a complex multi-layer prosecution. 15 Allstate alleged the organization solicited persons involved in automobile accidents, ran them though unnecessary treatment, and referred them to allied personal-injury law offices to make false claims. This lawsuit was filed in March 2008, 16 and went to trial in February A verdict eventually was handed down that April. 17 The verdict was appealed, and an appeals court finally approved the $6-million award in April Building complex and far-ranging RICO cases such as this also requires meticulous preparation to prove such expansive allegations. The insurer also could face actions alleging bad faith, defamation, abuse of process and other charges. Many insurance companies may not have the resources or will for 12 Journal of Insurance Fraud in America

13 take the longer view that fighting today will help minimize future exposures. The insurance industry may have won several recent key battles and is increasingly deploying anti-fraud tools that have helped put a dent in fraud. While we all realize we will not eliminate fraud. It is too profitable, and in some cases, just too easy. The question becomes: How do we attack it? By taking more aggressive action against the rings and their leadership, insurers can strip away much of the profit and make it more-difficult for organized rings to succeed. More important, that creates major victories for their customers, who are the ones who must pay the price for fraud. About the author: Frank S. Goldstein is the founder and managing partner of Goldstein Law Group, a premier AV-rated law firm concentrating on the investigation, detection and litigation of fraudulent insurance claims. The firm s practice areas include auto, property and healthcare insurance fraud. Goldstein concentrates on civil prosecution of insurance fraud claims and defense of insurance matters, including personal-injury protection, bodily injury and uninsured/underinsured motorist claims. Goldstein was recognized as Insurance Attorney of the Year at the annual Florida Insurance Fraud Education Committee conference in endnotes 1 33 Arrested in Staged Accident Scheme, National Insurance Crime Bureau, May 21, Insurance Fraud Ring Busted, wptv.com, May 16, Allstate Alleges $30 Million Insurance Fraud, Demands NY Reform, Law360.com, May 11, No-Fault Auto Insurance in Florida, white paper, Insurance Information Institute, Conversation with insurance company SIU representative, August 18, Source: Insurer settles lawsuit against West Palm Beach surgery center, maker over spinal device for as much as $20 million, Palm Beach Post, February 23, Two Clinic Owners Plead Guilty for Their Roles in Massive No-Fault Insurance Fraud Scheme, fbi.gov/newyork, February 13, Sonoma County windshield repair business ordered to pay $1.4 million in fraud case, Press Democrat, August 7, Insurer accuses 46 Minnesota chiropractors, MRI firm of fraud, Star Tribune, October 15, State Farm accuses ASK GARY of massive fraud scheme, Star Tribune, August 1, Chiropractors in $2.3 Million PIP Insurance Fraud Scheme Will Face RICO Charges, FLPIPGuide.com, April 15, RICO State by State: A Guide to Litigation Under the State Racketeering Statutes, Americanbar.org/publications GP Solo ereport, 2nd edition, November Allstate Files $6.3 Million No-Fault Fraud Lawsuit in NY, NU Online News Service, December 21, Allstate Wins Major Medical Fraud Lawsuit; Puts Fraudsters on Notice, PRNewswire, September 13, Alleged Multi-Million Dollar Fraud Ring Target of Federal Lawsuit, PRNewswire, March 6, Allstate Insurance Company et al. v. Plambeck et al, dockets.justia.com/dockets/texas, March 8, Allstate Says Evidence Supports Jury s $6M RICO Award, Law360.com, June 18, Allstate Can Keep $6M Telemarketing Fraud Award, Law360.com, April 2, Insight Analysis Ideas 13

14 Rational swindlers avoid crime when risk not worth the reward Theories about rational crime choices and deterrence offer clues about preventing fraud By Michael Skiba, PhD C riminology is the scientific study of criminal behavior. Criminological theory focuses on what causes crime. The goal is to help understand the criminal mind as a roadmap to developing effective anti-crime strategies. Crime theory helps reveal what motivates and deters criminals. Criminological theory has been widely used in mainstream disciplines such as homicide and robbery. However, there is a large gap in research and hence academic theory that applies to insurance fraud. What internal and external factors positively motivate and negatively deter insurance fraudsters? What makes them commit and not commit fraud? Understanding this framework will assist insurers, regulators and legislators in developing more-effective anti-fraud strategies. Studies suggest that both planned and opportunistic fraud are rising. However, opportunistic fraud presents the most significant threat in our current fraud environment. 1 This analysis focuses on opportunistic fraudsters those who have a legitimate loss but exaggerate claims. Organized crime rings, staged crashes and other planned frauds involve criminals whose psychological makeups are distinct from opportunistic fraudsters. They would be ideal focal points for separate analyses. Abstract: Criminology theory is widely used in the many criminal justice areas, yet there is no application of these theories to insurance fraud. Better understanding these theories and how criminals are motivated will assist insurance companies in developing effective anti-fraud strategies. Rational-choice theory, in particular, is the foundation of environmental criminological principles. It thus follows that if fraudsters consciously choose to commit fraud, then anti-fraud strategies should focus on decreasing opportunity. We want to design programs that increase the difficulty of committing fraud, and reduce the choices that offenders may have. This will fit into the cost-benefit analysis and deter fraudsters. 14 Journal of Insurance Fraud in America

15 There are three major schools of criminology theory (or criminal behavior): Biological; Psychological; and Sociological. All three theories are explored here in an insurance-fraud context to determine which apply most to anti-fraud preventative efforts. Biological. This theory proposes that the primary root causes of deviant criminal behavior are abnormalities present within an individual. The biological school of criminology focuses on genetic abnormalities, or defects, that are inborn and push an individual toward crime. Strain theory proposes that crime stems from the conflict between people s goals and how they achieve their goals. Cesare Lombroso pioneered this school. He portrayed criminals as people with certain inbred physical traits due to poor body construction such as sloping foreheads, asymmetry of the skull, long arms and other ape-like, subhuman characteristics. Criminal behavior stemmed from these inborn factors, not from rational thought and free will. Many researchers conclude that chemical imbalances are common to these individuals. Thus, balancing these chemicals with medication is the most-effective method of behavior management. The biological school offers little for insurance-fraud preventative efforts. Fraud fighters are not equipped to medicate potential offenders or help rebalance their genetic flaws. Psychological. This school focuses on the individual s mind specifically, personality flaws and how they contribute to criminality. Like the biological school, the psychological school focuses on the individual as the root cause of deviant behavior. Environmental or other social issues are secondary, if considered at all. Some studies in this area have focused on risk factors such as reduced cognitive functioning, low IQ and mental illness, and how they strongly correlate to criminal deviance. One such study was a survey of 69 children with measurable reduced cognitive functioning. 2 The children were canvassed for 13 possible offenses: alcohol use, animal cruelty, breaking and entering, indecent exposure, fire setting, paraphilia, physical assault, sexual assault, substance use, theft, truancy, vandalism and vehicular homicide. Alarmingly, the results showed that 23 children fully one third had committed serious offenses. Of this group, 17 (72 percent) had two or more incidents on record. Similar to the biological school, the psychological school has little relevance to insurance fraud. Insurers do not have the ability to manipulate an offender s internal, cognitive flaws. Sociological. Environment rather than the individual is the key to behavior influence. This school focuses less on individual microbehavior and more on macro group behavior. Many sociological theories can apply to insurance fraud because environmental factors can be manipulated. Let us review some of the most significant theories and how they apply to insurance fraud. Strain theory works to explain behavior by focusing on social strain or pressure. People experience social strain when they feel pressure or stress from being unable to obtain certain goals within society. As a global culture, we measure success by wealth, power, prestige and material possessions. Frustration ensues when a certain status cannot be obtained. That status may be measured in money, employment, school or community. This frustration is likely to generate criminal behavior. Strain theory proposes that crime stems from the conflict between people s goals and how they achieve their goals. People feel strain when they cannot obtain these benchmarks of success through traditional means of employment and working. Thus they pursue crime as an alternate means to success. Strain theory is relevant to the anti-fraud community because many opportunistic fraudsters commit fraud to help alleviate social strain. Since America currently faces a tight job market, with reductions and downsizing quite common, many people do not have the traditional means to earn a stable income and obtain their benchmarks of success. They commit insurance fraud to fill that void. Many social theories focus on environmental factors and their significant role in crime. Insight Analysis Ideas 15

16 Rational-choice theory is a central theme of environmental criminological theory. It is based on the premise that offenders make a rational choice to commit crime, and are influenced in part by environmental factors. Rational-choice theory was developed in the 1970s and 1980s. It is similar to many tenets of classical criminology. It proposes that offenders make a conscious, rational choice to commit crime. Some theorists relate this conscious choice to the economic principle of cost-benefit analysis: People weigh the benefits and potential outcomes of an action, and then make a conscious choice to act. Rational-choice theory is the foundation of environmental criminological principles. It thus follows that if fraudsters consciously choose to commit fraud, anti-fraud strategies should focus on decreasing opportunity. We want to design programs that increase the difficulty of committing fraud, and reduce the choices that offenders may have. This will fit into the cost-benefit analysis and deter fraudsters. making a choice Deterrence theory was developed from this rational-choice perspective. It proposes that anti-crime (or in our case, anti-fraud) programs focus on reducing opportunity to deter rational thinkers from committing crimes. This school of thought also assumes fraudsters are rational thinkers who will avoid criminal behavior if they are highly deterred. Insurers can take many actions to increase deterrence. They can develop and publicize strict zero-tolerance programs by making it clear that fraud cases will be diligently investigated and prosecuted. Insurers also can support and publicize fraud convictions. This may send a strong message to future potential fraudsters. Insurance schemers are rational thinkers and will respond to deterrence if convictions are highly publicized. Legislative anti-fraud efforts also will help create a deterrent effect. Because fraud is traditionally under-prosecuted, this sends a message to the public that it is a relatively low-risk crime. 3 There is no deterrent effect when the punishment is low because the reward will be worth the risk to the rational fraudster. 4 Routine-activities theory was developed by Lawrence Cohen and Marcus Felson in They also explore the environmental factors of crime. This theory proposes that three critical elements must be present for crime to occur: Suitable targets; Capable guardians; and Motivated offenders. Crime happens when all three components align, the researchers propose. As stated earlier, there is virtually no application of sociological theories in the insurance-fraud industry. Thus we cannot draw upon specific studies to determine if certain theories will have merit in an insurance-fraud setting. However, social theories, and specifically routine-activities theory, have great promise because insurers can manipulate all three critical elements in their favor. Routine-activities theory thus warrants more exploration. This theory has proven relevant and reliable in explaining behavior in other criminal areas such as street robbery and auto theft. Crime then will be deterred if one of the three elements is absent. Elizabeth Groff tested routine-activities theory and found strong support in a street-robbery scenario. 6 Street robbery was chosen because it involves direct interaction between victim and offender, and is considered a crime for economic gain. Both factors likely will result in a rational-choice decision. This study is valuable to the fraud arena because it focuses on the relationship between the victim (suitable target such as insurer or consumer) and offender (motivated offender). Application of routine activities is significant because the potential for crime reduction is 16 Journal of Insurance Fraud in America

17 extremely high. These situational factors can be more easily and quickly altered than altering root-cause deviant behavior. Insurance-fraud victims (or suitable targets) would be insurers and/or their policyholders. The motivated offender would be the potential fraudster. Crime could be prevented if one of the three elements is manipulated against the prospective perpetrators. That was the focus of the Groff study. Insurance-fraud victims (or suitable targets) would be insurers and/or their policyholders. The motivated offender would be the potential fraudster. Andresen (2006) tested the merit of routine activities and focused on auto theft, breaking and entering, and violent crime in Vancouver. 7 His significant study showed positive support for routine activities as a viable cause for criminal activity. Making alterations to help reduce victimization as outlined in routine- activities theory was key to reducing criminal opportunities, these studies found. This in turn reduced criminality. In applying this to insurance fraud, if insurers as suitable targets alter their anti-fraud strategies, then this will reduce opportunity, disrupt the continuum and reduce fraud occurrences. For example, insurance companies will disrupt the continuum and make themselves less-suitable targets by making more-aggressive red-flag systems, increasing the use of critical gatekeepers such as analysts and claims staff, and supporting public outreach. As stated previously, having a suitable target is one of the three elements of routine-activities theory. The research cited thus far has shown support for routine-activities theory as an effective means to explain and deter criminal offending. Any manipulation of victim (insurer) activity reduces the opportunity to victimize. This theory has significant implications for anti-fraud strategy. The research supports a fraud-reduction strategy focusing on making the target harder for an offender to victimize. Contemporary theories of offending support this approach in other criminal arenas. Building upon the theories of environmental criminology are contemporary perspectives of crime prevention by environmental design (CPTED). CPTED theorists focus on the environmental factors of crime by analyzing extraneous factors that can help reduce crime and victimization. The foundation of CPTED began when proponents found that altering the physical properties of buildings and other physical elements caused a significant reduction in criminality. Early application in an urban-housing setting in Sarasota, Fla. in 1999 and 2003 showed that CPTED strategies are highly effective at reducing criminality. Criminal justice professionals in Sarasota reduced opportunity by modifying environmental factors such as zoning regulations, buildings and other physical structures. 8 This basic theoretical foundation grew into a mindset that modifying environmental factors provides the rational offender less opportunity to commit criminal behavior, thus reducing the suitable targets. A significant study of victimization by Byers & Crider in 2002 also shows that many offenders do not premeditate crime; they act when an opportunity presents itself. 9 The researchers performed a qualitative analysis by conducting face-to-face interviews with criminal offenders who had victimized members of an Amish community. Several interviewees remarked that their criminality was never premeditated; it just happened. Offenders acted in a deviant manner when they were presented an opportunity, the authors discovered. It thus behooves insurers to develop as many ways to reduce this opportunity as possible to thwart fraud events. These corporate strategies could include: More aggressive up-front identification of potentially fraudulent cases; Effective software packages to identify high-risk claims; Coordination with underwriting and sales staff to assist with fraud identification; and Aggressive investigation once a potentially fraudulent case is identified. Companies should predetermine their vulnerable areas and then make these areas less-vulnerable. Insight Analysis Ideas 17

18 An important CPTED strategy involves the concept of foreseeable danger. In this critical step, a risk assessor analyzes the case, crime, company, etc. and then determines potentially vulnerable areas on which to focus efforts. This risk assessment is comprehensive and could entail reviewing prior data, spreadsheets, internal company information and external trends. Socialenvironmental theory proposes that crime is not a matter of motivation, but of opportunity. These rational-choice theories focus on how situational or environmental factors contribute to crime causation. These theories are based on rational thinking. Potential offenders use choice-structuring properties the crime s cost-benefit analysis. Making fraud more difficult will result in less opportunity and fewer fraud occurrences. When I began my academic research career about 10 years ago, I realized that a lack of benchmark was a shortcoming of applying theory to anti-fraud practices. There are virtually no studies that apply these principles to insurance fraud. This shortcoming offers a major opportunity for anti-fraud leaders to test these theories as anti-fraud strategies. The related challenge is to communicate successes and failures to build a benchmark base that starts filling a large knowledge gap. Other industries succeed when applying theory to policy development. Because there are no central repositories for reporting insurance fraud, insurers should consider creating a research foundation by pooling funding. If company-specific data on fraud strategies were available for interpretation, a more effective approach toward preventative efforts could be established. About the author: Michael Skiba has worked in the insurancefraud profession for 20 years as an SIU investigator, analyst and in management. He currently works in the special investigations unit at Interboro/AutoOne/ Maidstone Insurance. He also is Lead Professor of Fraud Management at Colorado State University Global Campus. Skiba lectures internationally and regularly publishes on insurance fraud. He holds an MBA and PhD with a concentration on insurance fraud. Skiba also is president of the New York Chapter of the International Association of Special Investigative Units. endnotes 1 A Phenomenological Study of the Barriers and Challenges Facing Insurance Fraud 1 Investigators, by J.Michael Skiba, Journal of Insurance Regulation, 2014, Volume JIR-ZA-33-04, Page Incidence of Law-Violating Behavior in a Community Sample of Children and Adolescents withtraumatic Brain Injury. James Luiselli, Michelle Arons, Nina Marchese, Andrea Potoczny-Gray and Erika Rossi, International Journal of Offender Therapy and Comparative Criminology, 2000, Vol. 44, 6: Pages Why Fraud Persists, Coalition Against Insurance Fraud. htm#why%20fraud%20persists 4 A Phenomenological Study of the Barriers and Challenges Facing Insurance Fraud Investigators, by J. Michael Skiba, Journal of Insurance Regulation, 2014, Volume JIR-ZA-33-04, Page Social Change and Crime Rate Trends: A Routine Activity Approach, by Lawrence Cohen and Marcus Felson, American Sociological Review, 1979, Volume 44(4), Pages Simulation for Theory Testing and Experimentation: An Example Using Routine Activity Theory and Street Robbery, by Elizabeth Groff, Journal of Quantitative Criminology, 2007 Volume 23(2), Pages A spatial analysis of crime in Vancouver, British Columbia: a synthesis of social disorganization and routine activity theory, by Martin Andresen, Canadian Geographer, 2006, Volume 50(4), Pages Zoning out Crime and Improving Community Health in Sarasota, Florida: Crime Prevention through Environmental Design, by Sherry Carter, Stanley Carter, and Andrew Dannenberg, American Journal of Public Health, 2003, September, Volume 93(9), Pages Hate crimes against the Amish: a qualitative analysis of bias motivation using routine activities theory, by Bryan Byers and Benjamin Crider, Deviant Behavior, 2002 Volume 23(2), Pages Journal of Insurance Fraud in America

19 Corporate dentistry bleeds Medicaid, vulnerable low-income children Dentists yank healthy teeth, fleece Medicaid under pressure to optimize income By Debbie Hagan L ower-income children staggered from their dental chairs. Many reached dangerously high heartbeat rates and were returned to their parents trembling, crying and clothes soiled. They were scared and traumatized by the painful surgeries they d just received, and begged their parents never to bring them to the dentist again. Their parents took their kids for routine checkups, expecting caring and minimal treatment. Instead many left with a mouth full of frightening steel-capped teeth. Others had a dozen or more perfectly healthy teeth pulled without medical necessity. Children routinely were tightly strapped from head to toe onto a papoose board to prevent them from struggling when surgical instruments were shoved into their mouths without anesthesia. These are the common horror stories of children receiving Medicaid dental care around the U.S. Most are from vulnerable, low-income families. Foster care children of military families also are abused. Many and likely most Medicaid-serving dental clinics provide caring and valuable service. Yet large, corporate-owned dental chains have literally and figuratively extracted large and illicit profits by focusing on this underserved market of the Abstract: Corporate-owned dental chains are exploiting the underserved market for low-income child Medicaid patients with large-scale fraudulent and abusive treatment. Most dental clinics are honest and forthright. But aggressive business models pressure some dental chains to fraudulently optimize volume treatment, ignoring the child s medical needs. Children undergo useless and painful root canals, cavity fillings and extractions. The clinics impose mouthfuls of steel teeth the children don t need. Medicaid likely is billed hundreds of millions of dollars a year in false dental treatment of children. Lawsuits and criminal actions are breaking up schemes. Still needed are more enforcement by dental boards, and education of parents about the warning signs of a scam. Insight Analysis Ideas 19

20 nation s poor. Epidemic insurance fraud and abuse of little patients drive the business models pursued by some large chains that have erected networks of high-production Medicaid mills. The nation s state-federal Medicaid partnership covers 60 million lower-income Americans, with spending of $450 billion annually. 1 The program s sheer size places Medicaid at considerable risk of fraud and abuse. Medicaid child dentistry is among the highest risks. No composite figures track the insurance-dollar losses to defrauding of young Medicaid patients. The figure likely runs to hundreds of millions of dollars a year. Texas state Medicaid investigators, for example, have paid more than $550 million for medically unnecessary orthodontic and dental services between 2007 and Criminal prosecutions, news exposes, hundreds of lawsuits plus congressional investigations are rocking dental chains as allegations of civil and criminal malfeasance keep surfacing. Lower-income children are generally underserved, and thus form an inviting market for profit-trolling equity funds. Fewer than half of Medicaid-enrolled children received dental care in 22 states, reveals a 2013 report by the respected Pew Charitable Trusts. More than 14 million Medicaid children didn t receive dental care in This creates a lucrative market for corporate-owned dental chains to fill. 3 Medicaid dental practices also are less-regulated than physician groups, and patients often see their dentist more often than their doctor. 4 And several states continue raising reimbursement rates to successfully attract more dentists. Plus the tragic 2007 death of a Medicaid child attracted great national attention to the program s problems. The child died from a brain infection caused by an untreated tooth abscess. Regulators upgraded Medicaid to make the program safer and attract more participants. Thus we have these owners or portfolio managers: Big Smiles is in the portfolio of Morgan Stanley. Small Smiles was purchased for $435 million by a consortium of investment firms, including the Carlyle Group, Arcapita Corporate Investments and American Capital. Valor Equity Partners owns All Smiles in Texas. FFL Partners owns the largest national chain Kool Smiles. Medicaid became an especially inviting investment in Texas in 2007 when a lawsuit settlement dramatically increased Medicaid fees. Corporate dental chains soon descended onto the federal insurance program. 5 One was the Atlanta-based Kool Smiles. It is the largest Medicaid dental chain in the U.S., serving about two million children with 130 offices in 17 states. Connecticut Medicaid also noticed a spike in children receiving stainless-steel crowns. The crowns didn t fit and teeth underneath were decaying. The company eventually satisfied Medicaid that it had corrected the problems. The problem of Medicaid fraud, however, is larger than Kool Smiles. High volume and rapid patient turnaround of assembly-line surgeries form the lynchpin of a business model that has dangerously commoditized dental care of thousands of Medicaid kids. Dentists embedded in dishonest chains seek the largest Medicaid payments possible from a given procedure, regardless of medical need. Worthless tooth extractions, steel crowns and cavity drillings heist far more insurance money than honest, low-cost cleaning and preventative care. The equity owners typically hand over business operations to so-called dental management firms that they own. The management companies publicly purport that they are mere vendors, providing dental clinics with back-office administrative services such as billing, payroll, staff hiring and other non-treatment, non-medical decisions. In truth, the management companies illegally 20 Journal of Insurance Fraud in America

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