A prominent claimants' attorney who is accused of taking kickbacks from the Forest Park Medical Center in Dallas plans to assert that it was not a crime to accept the payments because his clients had signed consent forms acknowledging the arrangement.

Royce Bicklein

The 10 remaining defendants in the alleged health care kickback scheme are scheduled to go to trail on Feb. 19 in federal court in Dallas, according to a court order filed last week. The order comes two years after 21 people were indicted in a case that involved more than $40 million in bribes and kickbacks. 

Seven defendants, including four physicians, have pleaded guilty.

Recent court filings give new insight into the defense that San Antonio claimants’ attorney Royce Bicklein is relying on, namely that the alleged kickbacks he received were not illegal because he had informed his injured clients about them.

He filed a copy of the client consent form with the court in October, indicating that he relied on advice of his own counsel — his law partner — in using the forms.

Prosecutors have questioned the authenticity of the consent form and argue that the kickbacks would be considered illegal anyway. They have asked the judge to subpoena all signed copies of the forms from Bicklein’s law firm. 

At a Nov. 28 hearing, Bicklein’s attorney reported that no signed copies had been found, but prosecutors want the firm to keep looking.

“Bicklein referred over 80 clients to FPMC (Forest Park), so the absence of any signed client consent forms for these patients would be highly relevant,” reads the U.S. Attorney’s motion for subpoena, dated Dec. 5.

One man Bicklein is accused of having a financial arrangement with, west Texas chiropractor Frank Gonzales, pleaded guilty in June to his role in accepting and paying kickbacks. He has agreed to testify in the case, although the plea agreement does not say whether he will testify against Bicklein.

“At trial, the evidence will show that these referrals were often directed to co-conspirator Frank Gonzales’ clinic in the Midland area, after which FPMC surgeons would arrange to bring the patients to FPMC for surgery,” the motion for subpoena explains.

Bicklein referred injured workers to Gonzales, who in turn referred them for surgery at Forest Park Medical, prosecutors have said. Gonzalez allegedly received about $385,000 for referring at least 500 patients to Forest Park, court records show. Bicklein received about $100,000 in kickbacks, the indictment alleges.

Bicklein’s attorney, Adam Kobs, of San Antonio, declined to comment Monday to WorkCompCentral about the proceedings.

The Forest Park case has gained considerable attention because of the extent of the alleged fraud and the high profile of some of the defendants. Bicklein has practiced law since 1998, according to his firm’s website, and is well known for his legal work and lobbying efforts on behalf of injured workers. 

Earlier this year, he was named chairman of the Texas Bar Association’s Workers’ Compensation Section, and was course director for a continuing legal education seminar sponsored by the bar in August.

He was indicted in November 2016, but court filings until now have not indicated the direction of his defense. In Bicklein’s recent filing with the court, he said the consent form was drafted in the 1990s after research done by his law partner, Kevin Miller, “because of the proliferation of state and federal statutes which sought to criminalize referrals to medical professionals.”

The consent form notes that the attorney will refer clients to medical professionals, and that “clients are advised that in many cases attorney … may have personal, financial, family and/or social relationships and may receive benefits arising from referrals of the same kind.”

But Texas lawyers and prosecutors said that getting paid for referrals to doctors is unorthodox at best, and a consent form does not excuse illicit actions.

“The government also has reason to question the authenticity of the form, because its use would constitute an admission that Bicklein and others at the firm were violating the Texas and federal anti-kickback statutes,” reads the motion for subpoena, submitted by Assistant U.S. Attorney Andrew Wirmani. “Both of these statutes criminalize an individual’s receipt of a benefit in exchange for a patient referral, but neither has an exception based on the patient’s consent.”

Bicklein’s indictment alleges that none of the patients who were steered to Forest Park had consented to the acceptance of kickbacks, nor did insurance programs that paid for the procedures.

Prosecutors also are asking for the names of all current and former employees at Bicklein’s firm, suggesting that they could be asked to testify. Their input is needed to explain the use of the consent forms. 

Prosecutors have obtained invoices that Bicklein sent to Forest Park Medical Center for legal services, but no signed client consent forms.

“The entire universe of these invoices is relevant because they tend to disprove that Bicklein, based on legal advice, believed that referring patients for compensation was lawful,” the government’s motion reads.

Prosecutors have built their case in part on emails from the defendants that outline the conspiracy, court records show. In March 2009, Forest Park's chief operating officer, Dr. Alan Andrew Beauchamp, sent an email to a surgeon and alleged co-conspirator, noting a $25,000 payment to Bicklein, the indictment reads. 

In 2010, Bicklein sent a Forest Park employee, another defendant in the case, an email that appears to suggest that he did not get credit for all the referrals he had made. It read: "Just looking over list from today ... I know I had several surgeries during this period and the absence of records showing that we did concerns me."

Bicklein also wrote, "I send you everything I can ... send nothing anywhere else," the indictment said.

Since the 2016 indictments, seven of the 21 defendants have pleaded guilty, including Beauchamp and two other co-founders of Forest Park. Dr. Wade Neal Barker, a bariatric surgeon, in October admitted to being part of the kickback scheme. An anesthesiologist, Dr. Richard Toussaint, also pleaded guilty in May, court records show.

In September, Dr. David Daesung Kim pleaded guilty to receiving more than $4.5 million in kickbacks from 2009 and 2012. Another defendant, spinal surgeon Dr. Douglas Sung Won, received the most in bribe money, about $7 million, for referring patients to FPMC, the indictment says.

“I would say they are all in big trouble,” said Baylor University Law Professor Ron Beal, who teaches administrative law. At the very least, Beal said, Bicklein and others involved in the scheme will probably lose their professional licenses.

The alleged scheme also has raised safety questions, because some patients were asked to drive as many as five hours from west Texas to the Forest Park hospital in Dallas. Prosecutors have said that the conspirators “aggressively” promoted surgery at Forest Park, which could mean that some patients underwent unnecessary procedures. The trial could answer many of those questions.

The court records filed so far don’t make it clear if Forest Park, now shuttered, was designed to be a scam from the beginning.

News reports have suggested that the hospitals were built and marketed more like luxury hotels, replete with spas, all designed to put patients at ease before and after surgery. Toussaint and Barker said as far back as 2007 that they were tired of the bureaucracy and inefficiencies in health care, and wanted to build their own centers.

Prosecutors allege that the hospitals refused to join insurers’ provider networks, which allowed owners to charge more for services and “enrich themselves through out-of-network billing and reimbursement.”

Insurance programs most affected by the alleged scheme include Aetna and Tricare, the health benefits program for the military, veterans and their families, court filings show.