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What Home Health Agencies Should Do to Avoid a Government Investigation

Categories: Criminal Law & Process

government investigations
Oberheiden & McMurrey, LLP
Attorneys-at-Law
Oberheiden & McMurrey, LLP represents healthcare business owners, physicians, and companies using our experience to avoid and defend against healthcare fraud investigations. Undoubtedly, home health and hospice care are two particularly strong areas of our practice. Our firm has created a team including former Department of Justice trial attorneys, the former Chief Health Care Fraud Coordinator at the U.S. Attorney’s Office, and former lead prosecutors of the Medicare Fraud Strike Force, as well as other experienced attorneys. Clients from across the United States call us when their reputation or livelihood are under attack.

Investigations of Agencies

The federal government has made combating waste fraud and abuse in the healthcare industry a significant priority.  HHS OIG and the FBI partner with other federal agencies such as the Food and Drug Administration (FDA), the Drug Enforcement Administration (DEA), and the Internal Revenue Service (IRS) in pursuing and prosecuting health care fraud.  Additionally, various state Medicaid Fraud Control Units (MFCU) contribute heavily to the investigation and regulation of the health care industry.  Many of these groups work throughout the United States on federal healthcare task forces investigating fraud allegations.

Home health agencies and practitioners could easily fall victim to a number of pitfalls in the context of regulation and compliance.  The government investigates all aspects of the home health business for potential areas of fraud, waste, or abuse, including:

  • Certification & Re-Certification Errors
  • Unsubstantiated Doctor-Patient Relationships
  • Lack of Appropriate Supervision
  • Questionable Homebound Status
  • Billing Problems and Errors
  • Physician Kickbacks

Oberheiden & McMurrey, LLP assists clients with:

  • Medicare & Medicaid Fraud
  • Anti-Kickback Violations
  • OIG Subpoenas
  • Grand Jury Subpoenas
  • False Claims Act & Qui Tam Defense
  • Stark Law (Self-Referrals)
  • HIPAA Compliance
  • Certifications of Medical Necessity
  • Billing Errors and Overbilling
  • RAC & ZPIC Audits
  • IRS Investigations

Most home health care and hospice care prosecutions are pursued pursuant the general healthcare fraud statute at 18 U.S.C. 1347. This statute defines healthcare fraud as the knowing and willful execution, or attempt thereof, of a scheme or artifice to defraud a health care benefit program. Penalties may include:

  • Up to 10 years in prison for each count of fraud;
  • Up to 20 years in prison if the fraud resulted in serious bodily injury;
  • A life sentence if the fraud resulted in the patient’s death;
  • Exclusion from federal healthcare programs;
  • Criminal fines; and
  • License revocations.

The former federal prosecutors and attorneys of Oberheiden & McMurrey, LLP are available to discuss your case. Don’t let the situation get out of control. Without proper attention and legal assistance it is possible that the government may attempt to build a criminal case against you. Call us today and let us identify your options.

Civil v. Criminal

Healthcare investigations take several different forms.  Some investigations are civil in nature.  Civil investigations mostly deal with False Claims Act allegations.  Many times a False Claims Act case stems from a whistleblower action or Qui Tam where an individual is reporting allegations of wrongdoing to the government.  The purpose of a civil fraud investigation is to identify provider overpayments in federal programs and to assess monetary damages.  The federal government has recouped billions of dollars through civil investigations and has increased its efforts in this area in recent years.

Criminal investigations are different from civil investigations in that the government’s goal is not only to recoup money from a provider, but to charge an individual or a group of individuals with a felony.  A felony conviction normally results in incarceration, significant monetary damages and the loss of the provider’s professional license.

Many times civil and criminal investigations intersect and overlap in what is known as a parallel investigation.  In a parallel investigation the government is working with several sets of agents who assess allegations of wrongdoing from the civil and criminal perspective.  It is important to note that the information that the government is evaluating in this parallel process is many times the same set of facts or circumstances.  The main element the government will be focusing on is the intent of the provider—meaning did the provider intentionally create a scheme to defraud the government or was the improper billing a mistake or oversight.  Clearly this is the most crucial part of an investigation and one that needs to be addressed by experienced counsel in order to move the investigation away from the criminal and toward the civil side.

Compliance Recommendations

Oberheiden & McMurrey, LLP has successfully represented clients throughout the United States who were under investigation by the Department of Justice (DOJ), the Department of Defense (DOD), the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), the Office of Inspector General (OIG), the Medicaid Fraud Control Unit (MFCU), and the Internal Revenue Service (IRS). Our clients benefit from the combined experience that our team of former federal healthcare prosecutors, former leaders of the Medicare Fraud Strike Force, and experienced defense attorneys bring to the table. We routinely advise healthcare clients in False Claims Act, Stark Law, Anti-Kickback, Medicare, Medicaid, Tricare, and DOL investigations.

Below is a list of preventative measures we have taken on behalf of clients:

  • Effective Compliance (establish, monitor, enforce OIG-approved compliance policies; appoint and train a compliance officer, compliance training re HIPAA, fraud and abuse laws, specific home health rules e.g. certification);
  • Corporate Structure (employment manual, make sure employment agreements, contractor agreement, operating agreement are consistent with state and federal regulations);
  • Voluntary Audit (vet all corporate documents and policies, take sample files and review billing codes and procedures, review all company policies, extensive compliance training);
  • Immediate Defense (if under investigation or audit, Emergency Defense Package—rushed and expedited compliance perfection, activate defense plan, board meetings, identify company weaknesses and rectify, bring in experts from relevant agencies- former FBI etc.); and
  • Media Protection (your name and reputation are key, nobody wants to be in the news, we work with the media and where needed oppose unjust reporting or sensational and biased stories).

Healthcare Fraud Defense Attorneys

In light of heavy and aggressive government scrutiny against Medicare business owners and medical service providers, it is imperative to consult with knowledgeable and experienced counsel. All clients of Oberheiden & McMurrey, LLP are represented by senior attorneys.

Attorney Lynette S. Byrd focuses her practice on civil and criminal litigation, Medicare and insurance audits, and general advice and counseling in health care law. She is a former Assistant United States Attorney with years of substantial trial experience under her belt who merges excellent litigation skills with profound understanding of the law.

We recognize the importance of each matter and we dedicate our fullest attention to each client. We are available to discuss your concerns in a free and confidential consultation, including on weekends.

Oberheiden & McMurrey, LLP
Compliance – Litigation – Defense
(800) 810-0259
(214) 469-9009
www.federal-lawyer.com
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden & McMurrey, LLP is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.
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