As a health care provider in Arkansas, a federal investigation involving allegations of fraud can have devastating effects for your business or practice. Our attorneys bring centuries of combined legal experience to protecting clients against the risks of civil and criminal charges.
What does it mean to be targeted in a federal health care fraud investigation? What do you need to know if you have received a subpoena or target letter from the U.S. Department of Justice (DOJ) or the U.S. Department of Health and Human Services’ Office of Inspector General (OIG)? What is the risk that you could be fined – or sentenced to federal prison? Is there a chance that you could lose your license to practice medicine?
Federal Authorities are Targeting Health Care Providers in Arkansas
If you find yourself asking these questions, you are not alone. With increasing frequency, the DOJ, OIG, and other federal agencies such as the Drug Enforcement Administration (DEA), the Federal Bureau of Investigation (FBI), and the Internal Revenue Service (IRS), are targeting health care providers for a broad range of fraud-related offenses. This uptick in enforcement efforts is largely attributable to three main factors: (i) the federal government’s increased reliance on data analysis to examine health care providers’ program (Medicare, Medicaid, Tricare, and Department of Labor (DOL)) billing practices; (ii) the financial incentive audit contractors (such as Zone Program Integrity Contractors (ZPICs)) have to allege fraudulent billing practices; and, (iii) the financial incentives available to whistleblowers who report alleged fraudulent billing practices to the DOJ.
But, regardless of why your business or practice is under investigation, the potential outcomes are the same. If you do nothing, at a minimum, you are likely to face recoupments, civil fines, and pre-payment review of future claims. Worst case, you could be charged with criminal health care fraud, and you could be faced with loss of your professional license, program exclusion, and the prospect of years of federal incarceration.
Fortunately, these are not the only options. You have the right to defend yourself during the investigative process; and, in many cases, doing so effectively will result in the investigation being resolved without civil or criminal charges being filed. At Oberheiden, P.C., we have a long track record of successfully representing health care providers during federal fraud investigations, and to date not a single one of our clients has been forced to cease operations due to an investigation in which we have been involved.
Meet Our Federal Health Care Fraud Defense Lawyers
Oberheiden, P.C. is a team of highly-experienced and nationally-recognized federal health care fraud defense attorneys. All attorneys in our firm have significant experience in health care fraud cases, and many of our lawyers served as federal health care fraud prosecutors with the DOJ prior to entering private practice. Our team also includes the Honorable Joe Kendall, the only former federal trial judge currently in private practice, who has a particular experience in cases involving health care fraud allegations.
10 Common Allegations Against Health Care Providers in Arkansas
Health care fraud investigations can focus on a variety of different allegations. When you engage our defense team to represent you, one of our first steps will be to determine the scope and nature of the government’s investigation (including whether the investigation is currently civil or criminal in nature). Some of the most-common fraud-related allegations against health care providers include:
1. Billing and Coding Errors
Billing and coding errors are among the most-common triggers for federal health care fraud investigations. Even unintentional – and arguably minor – mistakes can trigger government scrutiny; and, once a provider is in the government’s crosshairs, demonstrating that civil enforcement action or criminal prosecution is unwarranted can be extremely difficult. However, we have successfully handled hundreds of cases in Arkansas and nationwide involving allegations of unintentional and unintentional billing violations, and we can use our comprehensive knowledge of the federal program billing regulations to defend you.
2. Kickbacks, Bribes, and Rebates
The federal Anti-Kickback Statute imposes civil and criminal penalties for health care providers who are parties to a broad range of transactions. While this includes illicit transactions such as kickbacks and bribes, it includes a number of referral and other compensation-based arrangements as well. In fact, the Anti-Kickback Statute is so broad that most types of referral-related transactions have the potential to initially fall within the statute’s scope, and then it becomes incumbent upon the provider to demonstrate that one of the statute’s “safe harbor” provisions applies.
3. Physician Self-Referrals
The Stark Law applies to a subset of referral transactions commonly known as “physician self-referrals.” While the Stark Law is more limited in scope and exclusively civil in nature, it still presents the potential for substantial penalties in federal health care fraud investigations targeting physicians and their “related entities.”
4. False and Fraudulent Claims
Under the False Claims Act, it is a federal offense to submit any “false or fraudulent” claim under Medicare, Medicaid, Tricare or the DOL health care benefit program. The False Claims Act imposes criminal penalties for intentional violations, and civil penalties for unintentional billing and coding errors. These penalties apply on a “per claim” basis, which means that providers can face inordinate fines and damages in many cases.
5. Billing for Medically-Unnecessary Services, Supplies, or Equipment
Billing for medically-unnecessary services, supplies or equipment is a common issue in federal health care fraud investigations. Under Medicare, Medicaid, Tricare, and DOL billing regulations, the government – not the billing health care provider – determines what constitutes “medical necessity.” This means that providers can not only find themselves being second-guessed, but that they can often face penalties based upon federal agents’ subjective determination of medical necessity.
6. Billing for Services, Supplies, or Equipment Not Provided
Billing for services, supplies, or equipment not provided is another common allegation against health care providers, especially those with busy practices. Whether due to oversights, clerical mistakes, or coding errors, these violations should not subject providers to practice or business-threatening penalties.
7. Prescription Drug Fraud
Prescription drug fraud, particularly fraud involving opioid medications, has become a top federal law enforcement priority. In an effort to curtail the nation’s opioid epidemic, federal authorities including the DEA and the DOJ have chosen to target health care providers who prescribe and dispense these medications. While some providers are undoubtedly distributing opioid medications improperly, most have clear and medically-sound reasons for prescribing these and other medications to their patients.
8. Falsifying Patient Records and Inaccurately Reporting Test Results
In billing and coding fraud investigations, federal agents and prosecutors will often include allegations that providers have falsified patient records and test results in order to justify fraudulent program billings. Once again, while these allegations may be founded in some cases, it is far more common that the government’s allegations are based upon misplaced assumptions or incomplete information.
9. Fraudulent Physician Certifications
The same holds true for cases involving alleged fraudulent physician certifications. While federal agents and prosecutors will often try to argue that certifications are the product of financial motive or influence from other outside factors rather than a physician’s independent medical examination, the evidence will often prove otherwise once it has been assembled and presented effectively.
10. Issues with Election Statements for Hospice Care
Among other allegations, hospices targeted in federal investigations will often face allegations of falsifying election statements as well. This includes forging patients’ signatures, failing to provide patients with complete and accurate information regarding the nature of hospice care, and submitting fraudulent election statements in support of Medicare billings.
Q&A with Founding Attorney Dr. Nick Oberheiden: Defending Against Allegations of Health Care Fraud
Q: If my business or practice is currently under investigation, is it too early to hire a defense attorney?
No, absolutely not. You are entitled to legal counsel during the government’s investigation, and hiring a defense team now will give you the most opportunities to avoid civil or criminal prosecution.
Q: What are some defense strategies for federal health care fraud investigations?
We deploy a variety of different strategies to protect our clients based upon the particular factual and legal issues involved. Some of these defense strategies include:
- Challenging federal agents’ investigatory practices
- Challenging federal prosecutors’ assumptions
- Presenting exculpatory evidence
- Presenting safe harbors and other affirmative defenses
- Raising serious questions about the strength of the government’s case
Q: What are the consequences if I am found guilty of health care fraud?
The federal penalties for health care fraud depend on the severity of the allegations, the scope of the alleged fraud, and whether the investigation is civil in nature. Broadly speaking, potential penalties include:
- Civil or criminal fines
- Treble (triple) damages
- Costs and fees
- Denial of pending claims
- Pre-payment review
- Loss of program eligibility
- Federal imprisonment
Request a Confidential Assessment of Your Health Care Fraud Investigation in Arkansas
For more information about how our team of highly-experienced federal health care fraud defense attorneys can help you, please contact us to schedule a confidential case assessment. To speak with a member of our defense team as soon as possible, call 888-519-4897 or tell us how to reach you online now.