For health care providers, Medicare fraud investigations can lead to civil or criminal charges and substantial penalties. If your practice or business is under investigation in Colorado, call 888-519-4897 to speak with an experienced federal defense attorney in confidence.
As a health care provider serving Medicare beneficiaries, your business or practice is subject to a bevy of federal laws and regulations. While maintaining an up-to-date compliance program can mitigate the risk of mistakes, errors by billing personnel and other employees can expose providers to the potential for federal prosecution.
However, in many cases, health care providers are being targeted in Medicare fraud investigations even in circumstances in which no billing errors have actually occurred. This is the result of the federal government’s heavy reliance on data analytics, “fee-for-service” audit reports, and whistleblower claims to identify targets for federal investigations. Although health care providers that have fully complied with the Medicare billing requirements certainly do not deserve to be prosecuted, convincing the authorities that prosecution is unwarranted often requires an aggressive and strategic defense.
At Oberheiden, P.C., we have a hard-earned reputation for successfully defending health care providers against Medicare fraud allegations. Representing providers in Colorado and nationwide, we have secured favorable results for our clients at all stages of the federal prosecutorial process, from investigation through trial. If your health care business or medical practice is under investigation, engaging defense counsel quickly will give you the greatest chance to avoid business or practice-threatening consequences, and our attorneys are available 24/7 to speak with you about your defense.
Medicare Fraud Defense: Q&A with the Health Care Fraud Defense Lawyers at Oberheiden, P.C.
Q: Which federal agencies and task forces handle federal Medicare fraud investigations?
Combatting Medicare fraud is currently a top federal law enforcement priority; and, as a result, multiple agencies and task forces are currently devoting substantial resources to targeting health care providers in billing fraud investigations. While it may not initially seem particularly important which federal agency is targeting you, the reality is that identifying the agency (or agencies) involved in your investigation can tell you a lot about the potential risks involved. This includes providing insight into questions such as: (i) Is the investigation civil or criminal in nature? (ii) How broad is the scope of the Investigation? (iii) Are federal authorities targeting your business or practice as part of a broader Medicare fraud conspiracy investigation? (iv) What specific civil or criminal offenses are prosecutors trying to pursue?
Most Medicare fraud investigations will involve agents and prosecutors from one or more of the following federal agencies and task forces:
- Centers for Medicare and Medicaid Services (CMS)
- Department of Justice (DOJ)
- Department of Health and Human Services Office of Inspector General (OIG)
- Federal Bureau of Investigation (FBI)
- Internal Revenue Service (IRS)
- Medicare Fraud Strike Force (a joint-task force of the DOJ, OIG, and other federal agencies)
Q: What types of billing mistakes can lead to charges for Medicare fraud?
In today’s environment, virtually all billing mistakes (and even legitimate billing practices that appear to be “anomalous”) have the potential to trigger invasive Medicare fraud investigations. If your business’s or practice’s billing data even suggest that you may have overbilled Medicare, then there is a high likelihood that, sooner or later, you will be targeted in a federal Medicare fraud investigation.
In these investigations, federal agents are looking for evidence of any and all types of intentional and unintentional billing violations. For example, each of the following has the potential to lead to civil or criminal charges under the False Claims Act, the Anti-Kickback Statute, the Stark Law, the federal health care fraud statute (18 U.S.C. § 1347), and various other federal laws:
- Billing for services not actually rendered to patients
- Billing for supplies or equipment not actually purchased
- Billing for services that do not meet the requirements for “medical necessity” under the Medicare billing guidelines
- Billing for services at a higher rate than the one allowed (referred to as “upcoding”)
- Billing for related services and supplies at individual rates (referred to as “unbundling”)
- Double-billing for services, equipment, or supplies by either submitting duplicate bills to Medicare or billing Medicare, Medicaid, Tricare, the Department of Labor (DOL) and/or a private insurer for the same service or item
- Inflating charges, mischaracterizing patient services, and making unnecessary use of medical equipment in order to overbill Medicare
- Paying or accepting illegal referral fees, rebates, kickbacks, or other forms of “remuneration” from Medicare-reimbursed funds
Q: What are the penalties for Medicare fraud?
The penalties for which a health care provider is at risk in any particular case depend primarily on three factors: (i) whether the government’s investigation is civil or criminal in nature, (ii) the specific fraudulent conduct alleged, and (iii) the scope or volume of the alleged unlawful billings. The distinction between civil and criminal Medicare fraud allegations is in many respects the most-important factor, particularly since criminal allegations carry the potential for long-term federal imprisonment. Depending upon the particular circumstances involved, potential penalties in civil and criminal Medicare fraud cases include:
Civil Medicare Fraud Penalties
- Civil fines
- Treble (triple) damages
- Attorneys’ fees
- Denial of pending claims
- Pre-payment review of future claims
- Exclusion from Medicare participation
Criminal Medicare Fraud Penalties
- Criminal fines
- Federal imprisonment
- Medicare exclusion and other program-related penalties
For licensed health care providers, civil and criminal Medicare fraud investigations can trigger state licensing board action as well. This is true even if the investigation does not lead to formal charges.
Q: How can your defense attorneys protect me during the government’s investigation?
When you engage our defense team to represent you, our first order of business will be to intervene in the government’s investigation and determine the answers to questions such as:
- Why is your business or practice under investigation?
- What specific types of billing fraud are being alleged?
- How broad is the scope of the government’s investigation (i.e. how many years’ worth of billing records are being reviewed)?
- Is the investigation civil or criminal in nature?
- How close are federal prosecutors to filing civil charges or seeking an indictment?
Once we know the answers to these questions, then we can develop and execute a defense strategy that is custom-tailored to the facts of your case as well as your potential exposure. While all of our defense strategies are highly customized and developed with a meticulous attention to detail and in close coordination with our clients’ key stakeholders, the general types of defenses that are typically available in Medicare fraud cases include:
1. Evidentiary Defenses (Lack of Proof to Satisfy the Government’s Burden)
In both civil and criminal Medicare fraud cases, the burden of proof rests squarely on the government. If the evidence is not there to prove that your business’s or practice’s program billings are improper (or if federal authorities cannot lawfully collect this evidence), then you do not deserve to be charged, much less prosecuted through trial.
All Medicare fraud offenses consist of several “elements,” and the government must prove each of these elements in order to establish civil liability or criminal guilt. From challenging evidence of alleged billing violations to disputing evidence of intent (in order to avoid criminal culpability), we use our knowledge and experience to poke as many holes in the government’s case as possible.
2. Affirmative Defenses (Statutory Safe Harbors and Exceptions)
An affirmative defense is one which provides protection from prosecution even under circumstances in which the government’s allegations are true. In the Medicare fraud context, the most-commonly-used affirmative defenses arise under the “safe harbor” provisions of the Anti-Kickback Statute and the Stark Law. With our extensive experience in federal health care fraud cases, we are intimately familiar with when and how these crucial statutory provisions apply.
3. Constitutional Defenses (Unlawful Searches, Seizures, Interrogations, and Prosecutorial Practices)
The constitutional protections against unreasonable searches and seizures, compelled self-incrimination, prosecutorial misconduct, and other unlawful practices apply during Medicare fraud investigations and prosecutions. If federal agents or prosecutors violate your constitutional rights (or if they have violated your constitutional rights already), our attorneys may be able to use this to keep crucial incriminating evidence out of your case.
Q: Why should I choose the federal health care fraud defense team at Oberheiden, P.C.?
Ultimately, health care providers and company executives must make their own decisions about their choice of legal representation. However, in our experience, clients have chosen Oberheiden, P.C. based upon our:
- Significant experience defending health care providers against Medicare fraud allegations.
- Prior experience as federal prosecutors with the DOJ focused on health care fraud investigations and prosecutions.
- Focus on federal defense with particular emphasis on health care fraud investigations.
- Team approach which affords all clients the benefit of our attorneys’ collective knowledge and experience.
- Aggressive defense strategies designed to secure favorable outcomes as quickly, discretely, and cost-effectively as possible.
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If you would like more information about our defense representation for Medicare-participating health care providers in Colorado, we encourage you to get in touch. To speak with a member of our federal health care fraud defense team in confidence, please call 888-519-4897 or tell us how to reach you online now.