Boston Health Care Fraud

Boston health care providers charged with overbilling Medicare, Medicaid, Tricare, and other federal benefit programs can face severe civil and criminal penalties. Our Boston health care fraud lawyers bring well over 100 years of experience to defending clients in federal investigations.

Boston, Massachusetts, USA skyline at the public garden.

Boston health care providers are leading the way in advancing medical technology and finding new and innovative ways to treat patients for medical conditions ranging from broken bones to cancer. Boston is in many ways the center of America’s health care industry, and patients from across the country often travel to Boston to seek treatment from the nation’s leading medical professionals.

Unfortunately, Boston is also on the front lines of the nation’s opioid epidemic. Emergency room visits linked to opioid overdoses have skyrocketed, and use of both illegal drugs and prescription medications is to blame. With these factors combined, health care providers in the Boston area have become prime targets for federal fraud investigations. Contact our skilled Boston health care fraud defense lawyers to discuss health care fraud.

What Does It Mean to Be Accused of Health Care Fraud?

“Health care fraud” is a loaded term. While most people picture scam artists and organized crime syndicates coming up with schemes to siphon millions from Medicare and Medicaid, most health care fraud investigations target legitimate health care providers on a much smaller scale. Under the False Claims Act (which is one of the federal government’s primary tools for prosecuting health care providers who overbill government benefit programs), the intentional or unintentional submission of any “false or fraudulent” claim can trigger health care fraud liability. While this includes practices such as upcoding patient services and billing for supplies that were never actually ordered, even minor mistakes such as inadvertently switching billing codes can support allegations of “health care fraud” under federal law.

The consequences of facing health care fraud allegations can be severe. For licensed professionals, simply being accused of fraud can trigger licensing action, which may ultimately lead to suspension or revocation. Providers accused of fraud can also lose their hospital and assignment privileges – and this is before you get to the statutory penalties. Under the False Claims Act, the civil penalties for unintentional health care fraud include five-figure fines, recoupment, treble damages (repayment of three times the government’s actual losses), and federal health care benefit program exclusion. In a criminal case, the penalties include six-figure fines and five years of federal imprisonment. Since these penalties are applied for each individual offense, providers accused of submitting multiple improper reimbursement requests can easily face insurmountable financial penalties and the potential for decades behind bars.

A Nationally-Recognized Health Care Fraud Defense Team

Oberheiden, P.C. is a team of experienced health care fraud defense attorneys and former senior U.S. Department of Justice (DOJ) prosecutors with significant experience in health care fraud investigations. We have resolved most of our clients’ cases without a federal indictment (meaning that our client was never formally charged with criminal health care fraud), and to date we have resolved every single investigation under the False Claims Act with no civil or criminal liability for our client. If you are being targeted in a federal health care fraud investigation, this is the type of experience you need on your side.

When we represent clients in federal health care fraud investigations, our first priority is always to determine the nature of the government’s inquiry. Are you being targeted for civil or criminal prosecution? How extensive are the allegations against you? How much evidence has the government collected already? Once we intervene in the investigation and obtain the answers to these questions, then our goal is to build and execute a strategy focused on resolving the investigation as quickly and favorably as possible. Hopefully, it is a matter of simply clearing up some misunderstandings. But, if it isn’t, we will work tirelessly to pursue every available opportunity for protecting you from liability.

“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. Simply, the best!” – 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

Proven Defense Strategies for All Health Care Fraud Matters

Our Boston health care fraud defense attorneys represent Boston health care providers in all federal investigations involving allegations of Medicare fraud, Medicaid fraud, Tricare fraud, and other forms of fraud involving government benefit programs. Over the past several years, we have successfully represented clients including:

  • Durable medical equipment (DME) Companies
  • Health care business owners and executives
  • Home health agencies
  • Hospices
  • Hospitals and other medical facilities
  • Marketing groups
  • Nurses, administrators, and staff members
  • Pharmacies and compound pharmacies
  • Physicians and physician-owned entities
  • Toxicology laboratories

Handling all civil and criminal investigations and prosecutions, we have particular experience in the matters listed below.

Billing and Coding Violations

Both intentional and unintentional billing and coding violations can lead to federal charges for health care fraud. The reimbursement conditions under Medicare, Medicaid, Tricare, and other health care benefit programs are extremely rigid, and even minor infractions can lead to significant financial penalties.

Most investigations into providers’ billing and coding practices are civil in nature. Most involve unintentional violations, and many involve mistakes by staff members in spite of the comprehensive compliance policies that providers have put into place. In civil cases, providers can face fines, recoupments, treble (triple) damages, program exclusion, and other penalties. Mounting a successful defense requires a thorough internal assessment and a strategic approach to combatting the government’s allegations.

Our Boston health care fraud defense lawyers regularly represent providers that are facing liability for alleged billing and coding violations including, but not limited to:

  • Double-Billing – Billing a health care benefit program multiple times for the same service or item, or billing the same service or item to a health care benefit program and a private insurer.
  • Lack of Medical Necessity – Billing for services, supplies, or equipment that are not considered medically necessary under the applicable program billing guidelines.
  • NonAllowable Costs – Billing for operational expenses or other costs that are not eligible for reimbursement under the applicable program billing guidelines.
  • Non-Compliance with Conditions – Submitting requests for payment that do not satisfy the requirements for program reimbursement.
  • Phantom Billing – Billing for services, supplies, or equipment that were not actually provided to patients or purchased for office use.
  • Unbundling – Billing multiple services or items at their stand-alone rates rather than the bundled rates prescribed under the applicable program guidelines.
  • Unlicensed or Excluded Providers – Billing for services rendered by providers (including third-party providers) that are unlicensed or that have been excluded from participation under the relevant health care benefit program.
  • Up-Coding – Billing for more-expensive services than the services actually performed.
  • Wrong Billing Code – Submitting an incorrect billing code due to administrative or typographical errors or another deficiency.

Kickbacks and Referral Fees (Anti-Kickback Statute and Stark Law Violations)

Payments between providers in connection with patient referrals for program beneficiaries can also trigger liability for civil and criminal penalties. Although referred to in the statutory language as “kickbacks” and “bribes,” the prohibitions in the Anti-Kickback Statute and Stark Law apply more generally to referral fees paid under a broad range of circumstances.

In fact, the operative language of the Anti-Kickback Statute prohibits “any remuneration [paid] . . . directly or indirectly, overtly or covertly, in cash or in kind to any person,” in exchange for federal health care program business. The Stark Law’s language is similarly broad, although it applies only to referrals for “designated health services” between physicians and entities with which they have financial relationships (which is why the Stark Law is said to prohibit “physician self-referrals”). Then, subsequent provisions of these statutes and their enabling regulations carve out “safe harbors” that allow for payment of referral fees and other forms of remuneration under limited circumstances. Some of the most-commonly-used safe harbors under the Anti-Kickback Statute and Stark Law include those that apply to:

  • Arrangements with hospitals
  • Cooperative health service organizations and group purchasing organizations
  • Discounts and price reductions
  • In-office ancillary services
  • Indirect compensation arrangements
  • Isolated transactions
  • Medical staff incidental benefits
  • Non-monetary compensation
  • Personal service arrangements
  • Physician services
  • Preventative screening and vaccinations
  • Referrals for specialty services

Critically, the Anti-Kickback Statute and Stark Law impose penalties for parties on both sides of prohibited transactions. They also impose penalties for offering and soliciting unlawful referral fees, even in circumstances where no fees are actually paid. As a result, all providers facing investigations under these statutes need to take the government’s allegations very seriously, and they must often focus their defense strategies on demonstrating that a safe harbor applies.

Other “False and Fraudulent” Claims (False Claims Act Violations)

Billing and coding violations are typically prosecuted as violations of the False Claims Act, the federal statute that prohibits the submission of “false or fraudulent” requests for payment from government funds. In addition to constituting violations of the Anti-Kickback Statute and Stark Law, improper referral fee arrangements and other compensation-based relationships can trigger liability under the False Claims Act. In addition, other common allegations against health care providers under the False Claims Act include:

  • Backdating reimbursement requests and other documentation
  • Falsifying patient records
  • Forging patient signatures
  • Making unlawful payments (cash or in-kind) to family members
  • Providing or accepting airplane tickets for conferences or other travel
  • Providing or accepting discount rates for use of clinical space, office equipment, or staff
  • Other improper practices involving reimbursements from Medicare, Medicaid, Tricare, and other federal health care benefit programs

Prescription Drug Fraud

Prescription drug fraud is quickly becoming one of the most-common allegations in federal health care fraud investigations targeting physicians, pharmacists, hospitals, clinics, and other providers that prescribe, dispense, and administer controlled-substance medications. Although these investigations are increasingly focusing on opioid medications such as hydrocodone, morphine, and oxycodone, investigations targeting non-opioid medications remain common as well.

What is prescription drug fraud? All types of providers can face liability under the False Claims Act and federal controlled substances laws for engaging in practices such as:

  • Drug shorting and refill schemes
  • Falsifying and forging prescriptions
  • Illegally importing prescription medications
  • Prescribing drugs that are medically-unnecessary
  • Prescribing medications without an in-person exam
  • Prescription drug diversion
  • Selling fraudulent prescriptions

When determining which providers to target in prescription fraud investigations, the Drug Enforcement Administration (DEA), the DOJ’s Opioid Fraud and Abuse Detection Unit, the Medicare Fraud Strike Force, and other federal law enforcement authorities commonly look for factors such as:

  • Accepting cash for prescription medications
  • Insufficient triage
  • Issuance of prescriptions by administrative staff
  • Kickback and referral fee arrangements between treatment providers and pharmacies
  • Limited patient interaction
  • Lack of interdisciplinary approach
  • Lack of medical justification for prescriptions
  • Failure to enforce anti-diversion prescription policies
  • Prescribing or dispensing a high volume of commonly-abused medications
  • Prescribing Schedule II controlled substances at a higher rate than other local providers

Home Health Agency and Hospice Fraud

Home health agencies and hospices have faced enhanced scrutiny in recent years as well. While investigations targeting these providers frequently involve many of the allegations listed above, they frequently focus on two unique aspects of the billing requirements for home health and hospice services as well. These are:

  • Physician Certifications – In order to begin treatment, home health agencies and hospices must obtain certifications from patients’ treating physicians. Home health and hospice patients must also be recertified for ongoing treatment every 60 days. Federal authorities will often heavily scrutinize home health agencies’ and hospices’ physician certification practices, and prosecutors will aggressively pursue charges against providers that appear to be billing federal benefit programs without the requisite certification.
  • Patient Election Statements – In addition to obtaining physician certifications, hospices must also obtain patient election statements in order to bill for program reimbursement. From failing to notify patients of their rights to backdating election statements and forging patients’ signatures, hospice owners and administrators will often find themselves forced to defend against a broad array of accusations.

Frequently-Asked Questions (FAQs): Defending Health Care Fraud Investigations in Boston, MA

Q: What are ‘designated health services’ under the Stark Law?

Unlike the Anti-Kickback Statute, which prohibits program-reimbursed referral fees in connection with the delivery or distribution of any service or item, the Stark Law applies only to transactions involving “designated health services.” Designated health services under the Stark Law include:

  • Clinical laboratory services
  • DME and medical supplies
  • Home health services
  • Imaging
  • 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

Our dedicated and experienced Boston health care fraud defense lawyers understand the nuances regarding the Stark Law.

Q: What are some common allegations of physician certification fraud in connection with home health and hospice care services?

Federal authorities routinely pursue investigations for physician certification fraud against home health agencies, hospices, and certifying physicians. Some of the most common types of allegations against these providers include:

  • Providing fraudulent physician certifications (i.e., certifying patients who are not actually eligible for home health or hospice care benefits)
  • Forging physician certifications
  • Offering or accepting kickbacks or referral fees in connection with physician certifications for home health or hospice care
  • Soliciting certifications from physicians other than patients’ primary care providers
  • Falsifying patient records, including backdating certifications and recertifications, and other forms of fraud

Q: What are some potential defense strategies in federal health care fraud investigations?

When we represent health care providers in federal fraud investigations, two of our first steps are to: (i) to intervene in the government’s investigation and learn more about the allegations involved, and (ii) conduct an internal assessment in order to assess the validity of the government’s allegations and the extent of any potential exposure. Once we have gathered this information, then we can formulate a comprehensive, custom-tailored defense strategy which may include:

  • Challenging the legality or Constitutionality of the government’s investigative procedures
  • Challenging the veracity of the government’s evidence
  • Presenting countervailing evidence, such as evidence that our client’s practices qualify for safe harbor protection
  • Preparing appropriate responses to subpoenas, civil investigative demands (CIDs), and other requests for information
  • Negotiating to keep the case civil in nature (which keeps the potential for prison time off of the table)
  • Arguing to resolve the case in our client’s favor prior to charges being filed
  • Challenging an indictment, negotiating for a favorable plea deal, or preparing a vigorous trial defense which also preserves relevant issues for appeal

Contact the Boston Health Care Fraud Defense Lawyers at Oberheiden P.C.

If you, or any member of your business or practice, has been contacted by agents from the DEA, DOJ, Office of Inspector General (OIG), or any other federal agency or task force, it is imperative that you seek legal representation immediately. To schedule a free initial consultation with the Boston health care fraud defense attorneys at Oberheiden, P.C., please call (888) 519-4897 or get in touch online now.

This information has been prepared for informational purposes only and does not constitute legal advice. While this information may constitute attorney advertising in some jurisdictions, merely reading this information does not create an attorney-client relationship. Every case is different, any prior result described or referred to herein cannot guarantee similar outcomes in the future. Oberheiden, P.C. is a Texas limited liability partnership with its headquarters in Dallas, Texas. Mr. Oberheiden limits his practice to federal law.

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