Baltimore Health Care Fraud
With a team that includes former senior health care fraud prosecutors at the U.S. Department of Justice (DOJ), our firm is uniquely-positioned to defend physicians, hospitals, and other providers in federal fraud investigations. If your Baltimore health care business or medical practice is under investigation, call 214-692-2171 for a free consultation with our Baltimore Health Care Fraud Defense Lawyers.
Compliance with federal health care benefit program billing regulations has become a central component of operating a profitable business or practice in the medical industry. Whether you treat patients, dispense medications, or sell durable medical equipment (DME) to hospitals and other providers, the Medicare, Medicaid, and Tricare billing guidelines are inescapable. Maintaining a compliance program is time-consuming and expensive; and for some health care providers in Baltimore, it isn’t enough.
With increasing frequency, providers in the Baltimore area are being targeted in federal investigations involving allegations of health care fraud. These investigations typically focus on providers’ program billing practices, with allegations ranging from “phantom billing” (billing for services not actually provided to patients) to offering and accepting illegal kickbacks and referral fees. In many cases, these investigations are triggered by apparent “anomalies” in providers’ billing data – without consideration for how one provider’s practice may be fundamentally different from another. As a result, even providers who do their best to comply with the program billing regulations can still find themselves in the federal government’s crosshairs.
Facing a federal health care fraud investigation is a significant event. The investigation alone can trigger licensing action by the Maryland Board of Physicians, and providers found liable for overbilling Medicare, Medicaid, Tricare, or another health care benefit program can face civil or criminal charges. With penalties including fines, recoupments, treble (triple), and loss of federal program eligibility – not to mention prison time in criminal cases – it is essential to present an effective defense during the investigative process.
A Nationally-Recognized Health Care Fraud Defense Team Serving Baltimore, MD
At Oberheiden, P.C., our Baltimore health care fraud defense lawyers have well over 100 years of combined experience in federal health care fraud matters. Many of our attorneys are former senior health care fraud prosecutors with the U.S. Department of Justice (DOJ) who have handled thousands of federal fraud investigations. Led by Partner Dr. Nick Oberheiden, our health care fraud defense team has a significant record in high-stakes federal matters.
“Our experience with [Oberheiden, P.C.] was overwhelmingly positive! We recently brought a range of complex legal issues to the table, which they responded to with a systematic, prudent approach. Throughout our work together, Oberheiden, P.C. served as an invaluable source of practical guidance and legal leadership. We would recommend them highly and without reservation to anyone.” – Health Care Provider, Firm Client
“Our companies have worked with firms all over the country within various specialties and now use [Oberheiden, P.C.] almost exclusively. Nick represented our companies in some federal law investigations. His guidance and expertise allowed us to continue to concentrate on our core business as he dealt with the complex legal issues.” – Health Care Provider, Firm Client
Experienced Legal Representation for Baltimore-Area Providers Facing Federal Health Care Fraud Investigations
Our Baltimore health care fraud defense lawyers represent medical practitioners and health care companies in downtown Baltimore and the surrounding areas, including Catonsville, Columbia, Hunt Valley, Lutherville, Reisterstown, and Anne Arundel County. Our experience includes successfully defending individuals and organizations in investigations and prosecutions involving health care-related matters, such as the ones listed below.
Double-billing includes billing the same service or item multiple times to a single health care benefit program, billing the same service or item to multiple programs, or billing the same service or item to a health care benefit program and a private insurer. Allegations of double-billing can arise from misinterpretation of providers’ billing records as well as a variety of different unintentional mistakes. Mixing up patient records, typographical errors, and other administrative mistakes are all common factors, and avoiding or mitigating liability requires a clear understanding of the specific issue(s) involved.
Billing for Medically-Unnecessary Services
Under federal health care benefit program billing guidelines, reimbursements are available only for services, supplies, and equipment that are “medically necessary.” In this context, medical necessity is determined by the government, not by the needs of the particular patient. Providers who bill for services that are deemed medically-unnecessary can face recoupments, denial of payments, pre-payment review, and the other penalties listed above.
Billing for Services Not Provided (“Phantom Billing”)
Billing for services not provided is another common form of billing fraud that is often the result of unintentional administrative mistakes. While the intentional submission of false and fraudulent claims is undoubtedly a very real issue that costs the government billions of dollars every year, many cases of so-called “phantom billing” do not rise to the level of criminal health care fraud.
Billing for Non-Allowable Costs
Certain costs are not eligible for reimbursement through Medicare, Medicaid, and Tricare. One category of costs that tends to garner scrutiny from federal authorities is operational expenses. While medical equipment and certain other items purchased for office use are eligible for federal funds, billing other non-patient-related costs to Medicare, Medicaid, or Tricare can lead to allegations of federal health care fraud.
Billing for Unlicensed and Excluded Service Providers
Services provided by unlicensed practitioners generally are not eligible for federal health care benefit program reimbursement. This includes medical treatment, physical therapy, and psychological counseling. Providers can also be held liable for billing for services provided by practitioners who have been excluded from Medicare, Medicaid, Tricare, and other health care benefit programs.
Non-Compliance with Conditions
All federal program reimbursement requests must be submitted in compliance with the applicable program conditions. For Medicare, this means strictly adhering to the terms of the Medicare Claims Processing Manual. Non-compliance with conditions is grounds for denial of payment; and for claims that have already been paid, it is grounds for imposition of fines and other penalties.
Under Medicare, Medicaid, and Tricare billing regulations, certain related services and items are required to be billed at discounted “bundled” rates. Billing these services and items at their stand-alone rates (referred to as “unbundling”), whether intentionally or unintentionally, can lead to allegations of federal health care fraud.
Up-Coding and Use of Incorrect Billing Code
Up-coding refers to billing a service or item at a higher rate than the one prescribed by the applicable program billing regulations. For example, billing a brief consultation with a nurse as a full in-office examination conducted by a physician-specialist. Like other forms of billing and coding fraud, while sometimes done intentionally, up-coding can be the result of an honest human error during the coding process as well.
The same goes for use of the incorrect billing code not specifically within the context of up-coding. If a health care business or practice bills a service at the incorrect rate, this may warrant a refund, but it does not necessarily reflect intentional health care fraud deserving of criminal prosecution.
Kickbacks, Bribes, and Referral Fees
The federal Anti-Kickback Statute makes it illegal to offer, solicit, pay, or accept, “any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind,” in connection with referrals for federally-reimbursed health care services, supplies, equipment, or facility rentals. The Anti-Kickback Statute’s prohibitions are extremely broad, although they are also curbed significantly through a laundry list of statutory and regulatory “safe harbors.” Forms of compensation prohibited under the Anti-Kickback Statute include:
- Cash payments
- Discounts for services, supplies, or equipment
- Free or below fair market value clinical space, equipment, or staff
- In-kind gifts (such as airplane tickets)
- Payments to family members
- Marketing commissions
Our Baltimore health care fraud defense lawyers routinely represent clients in Anti-Kickback Statute investigations, and we have significant experience demonstrating that our clients’ transactions qualify for safe harbor protection.
The federal Stark Law prohibits transactions commonly referred to as physician “self-referrals.” This includes any direct or indirect form of compensation or investment involving federal program funds paid to or received from an entity that offers “designated health services.” Designated health services under the Stark Law include:
- Clinical laboratory services
- DME and medical supplies
- Home health services
- Inpatient and outpatient hospital services
- Outpatient pathology
- Outpatient prescriptions
- Parenteral and enteral nutrients, equipment, and supplies
- Physical therapy
- Prosthetics, orthotics, and related supplies
- Radiology and radiological therapy
Falsifying Test Results and Providing Improper or Unnecessary Treatment
Falsifying test results in order to submit inflated reimbursement requests is another commonly-alleged form of federal health care benefit program fraud. In some cases, federal agents will allege that providers have not only falsified test results, but also provided improper or unnecessary treatment based upon the fraudulent results reported. Regardless of the extent of the accusations involved, allegations of falsifying test results must be taken extremely seriously, as health care fraud resulting in patient harm carries additional criminal penalties.
Falsifying Patient Treatment Records
Falsifying patient treatment records can be prosecuted as a form of up-coding, and it is a clear violation of the False Claims Act. However, not all providers accused of falsifying patient records have actually done so. These cases are often far more complex than they initially appear, and it is up to providers to convince the investigating authorities that their assumptions are misguided. In some cases, isolated incidents of failure to maintain accurate patient treatment records can lead to allegations of systemic fraud, and avoiding substantial liability is a matter of proving that the sample records reviewed are not representative of the provider’s recordkeeping practices generally.
Prescription Drug Diversion, Drug Shorting, and Refill Schemes
In 2017, the DOJ announced the formation of a new Opioid Fraud and Abuse Detection Unit with 12 regional task forces around the country. One of these task forces was assigned specifically to investigate and prosecute health care providers in Maryland who prescribe, dispense, and administer opioid medications. One of the Opioid Fraud and Abuse Detection Unit’s top priorities is to prevent and penalize the practice of prescription drug diversion, which involves providing opioid medications to individuals to whom they have not been appropriately prescribed. Drug shorting and refill schemes are forms of prescription drug diversion commonly alleged against physicians, pharmacists, clinics, and other providers.
Compound Pharmacy Fraud
In addition to pharmacies that dispense opioids and other off-the-shelf medications, compound pharmacies in Baltimore are increasingly being targeted in federal health care fraud investigations. Offering and accepting referral fees, dispensing medically-unnecessary medications, and billing for ineligible ingredients are all common allegations in compound pharmacy fraud investigations.
Other Forms of Prescription Drug Fraud
Along with prescription drug diversion, drug shorting and refill schemes, and compound pharmacy fraud, investigations targeting providers’ prescription drug practices will often involve a broad range of other accusations as well. Common allegations in prescription drug fraud cases include:
- Falsifying and forging prescriptions
- Illegally importing prescription medications or ingredients
- Inaccurately reporting test results in order to issue fraudulent prescriptions
- Prescribing medications without conducting in-person exams
- Prescribing more medication than is necessary or dispensing more medication than was prescribed
Home Health Agency and Hospice Fraud
Home health agencies and hospices in Baltimore must comply with rules and regulations above and beyond those that apply to other types of health care providers. This includes the requirement to obtain physician certifications and, for hospices, the obligation to obtain signed election statements from patients. Physician certification fraud and election statement fraud allegations are both common, and home health agencies and hospices must be prepared to demonstrate that they have comprehensive policies and procedures in place to prevent unlawful billings.
Our Baltimore Health Care Fraud Defense Lawyers Answer Providers’ FAQs
Q: What do I need to do if my business or practice is being targeted in a federal health care fraud investigation?
Defending against an investigation conducted by the Department of Justice, Department of Health and Human Services Office of Inspector General (OIG), Centers for Medicare and Medicaid Services (CMS), Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), or other federal agency or task force requires a strategic and informed approach. In order to address potential charges, you need to know the allegations against you, and you also need to know whether you have any potential exposure to legitimate allegations. Since both intentional and unintentional billing violations can support allegations for health care fraud, providers cannot simply assume that they are protected because they have not knowingly attempted to defraud the government.
Due to the extreme risks involved, when our Baltimore health care fraud defense lawyers represent providers in federal health care fraud investigations, we take a comprehensive approach that leaves as little to chance as possible. When you engage our firm to represent you, we will:
- Make contact with the authorities involved in your investigation to determine the extent of the allegations and whether the investigation is civil or criminal in nature;
- Conduct an internal assessment to identify any potential billing violations or systemic deficiencies;
- Advise you and your key personnel on how to interact with government officials;
- Help you implement an appropriate “litigation hold” to prevent any relevant documents from being destroyed (which could lead to additional charges);
- Determine the timeline for responding to any subpoenas, civil investigative demands (CIDs), or other formal requests for information and identify the best approach for submitting a compliant response; and,
- Develop a customized defense strategy designed with the goal to help you avoid liability and resolve the investigation without civil or criminal charges.
Q: Can I go to prison for health care fraud?
Potentially, yes. The False Claims Act and the Anti-Kickback Statute both include provisions for criminal penalties. Also, providers accused of intentionally defrauding Medicare, Medicaid, Tricare, and other federal health care benefit programs will often face charges under various other federal criminal statutes. The federal laws against conspiracy, controlled substance violations, mail fraud, wire fraud, and money laundering are all relevant to health care fraud investigations, and they all provide for enormous fines and long-term imprisonment.
Q: What are some potential defenses in federal health care fraud investigations?
The good news for Baltimore providers being targeted in federal investigations is that there are numerous potential defenses available. From Constitutional defenses (e.g., violations of providers’ Fourth Amendment rights) to statutory and regulatory safe harbors under the Anti-Kickback Statute and Stark Law – mounting a successful defense requires a comprehensive understanding of the various sources of legal authority that apply to federal health care fraud investigations. With decades of experience and a notable record of success, our Baltimore health care fraud defense lawyers have experience to apply in the defense of health care providers accused of fraud, and our goal is to use our experience to help you obtain the best result possible.
If your business or practice is under investigation by the DEA, DOJ, FBI, OIG, CMS, or another federal agency or task force, it is imperative that you seek immediate legal representation. You can contact Oberheiden, P.C. 24/7, and we will arrange for you to meet with our Baltimore health care fraud defense attorneys on our fraud defense team as soon as possible.
Contact Oberheiden, P.C.
To schedule a free initial consultation with our health care fraud defense team, please call 214-692-2171 or request a case assessment online now. Our Baltimore health care fraud defense attorneys are available 24/7, and if we cannot take your call immediately we will respond as soon as possible.