Former federal prosecutors
offering unparalleled knowledge and a proven track record


Meet the Team
Oberheiden Attorneys

Anti-Kickback Defense Lawyers Serving Detroit

Michigan Office
615 Griswold Street, Suite 700
Detroit, MI 48226
313-888-8807
(Meeting location by appointment only)

The Oberheiden & McMurrey, LLP has significant experience in defending medical professionals and business owners against accusations of Anti-Kickback violations. Our nationally recognized Health Care Fraud Defense Group is headed by Dr. Nick Oberheiden. Dr. Oberheiden is a health care fraud defense attorney and managing principal of Oberheiden & McMurrey, LLP.

Detroit Anti-Kickback Investigations

The federal anti-kickback statute applies to health care providers and non-licensed individuals such as business owners, marketers, and health care executives and prohibits the offering, paying, soliciting, or receiving of kickbacks, bribes, or rebates, regardless as to whether in cash or otherwise, directly or indirectly for referring patients to providers in return for:

  • An item or service covered by Medicare, Medicaid, or other federal health care programs such as Tricare or patients covered by the Department of Labor;
  • Buying, leasing, or ordering any item, service, or facility covered by Medicare and other federal health care programs such as Medicaid, Department of Labor patients, and Tricare.

Physicians and business owners in Detroit are at the forefront of anti-kickback and health care fraud investigations. Today, Detroit is one of only nine U.S. cities in which the federal government has established special task forces to specially monitor, investigate, and prosecute Health Care Fraud.Physicians and health care business owners should be aware that government prosecutions in Detroit are more more aggressive and significantly more frequent than in other communities and spearheaded by the elite Health Care Fraud Prevention and Enforcement Action Team (HEAT). HEAT is a coordinated federal task force composed of prosecutors from the Department of Justice (DOJ), Department of Health and Human Services (HHS), the Office of Inspector General (OIG), the Federal Bureau of Investigation (FBI), and others.

In Detroit, the U.S. government currently investigates physicians, physician-owned entities, pharmacies, compound pharmacies, medical device companies, imaging centers, laboratories, home health, and hospice care centers for suspected health care fraud and anti-kickback violations. If you are a target of a federal health care investigation, you should call us immediately to avoid criminal prosecution.

What Are the Penalties?

The federal Anti-Kickback Statute is a hybrid statute and violations of 42 U.S.C. § 1320a-7b can be prosecuted as a civil matter or as a criminal offense.

  • CIVIL PENALTIES: Targets of Anti-Kickback prosecutions can face recoupment requests, non-payment of future claims, civil fines of up to $ 50,000 per violation, exclusion from federal health care programs, treble damages, and attorney fees.
  • CRIMINAL PENALTIES: Violations of the federal Anti-Kickback statute may also be prosecuted as federal felonies, punishable by up to 5 years in prison per count, up to $ 25,000 in fines per occurrence, and administrative provider exclusion from federal government programs.
  • PROGRAM EXCLUSION: If convicted, medical professionals can be excluded from all federal health care programs, prohibited from receiving reimbursement from any federal health care program and could face licensing actions and loss of hospital privileges.

What the Government Must Prove

In each federal Anti-Kickback investigation the government has to prove an illegal remuneration in exchange for inducing or rewarding referrals or to purchase, lease, order, or arrange for, or recommend the purchasing, leasing, or ordering of any good, facility, or service that may be paid for by a government health care program.

  • Remuneration

In this context, virtually anything of value amounts to an illegal remuneration. Any form of remuneration (e.g. gifts, rebates, cash, unjustified consulting fees) implicate the statute. Courts have taken an extremely broad interpretation of its scope, holding that the statute may be violated if merely one purpose of a payment arrangement is to induce referrals.

  • Intent

Prior to the Patient Protection and Affordable Care Act (PPACA), the law imposed a high burden on the government to prove the existence of an illegal kickback. Now, the government is no longer required to show that a defendant intended to violate the Anti-Kickback statute itself. Positive knowledge and specific intent to violate the kickback laws have been replaced with the finding that a defendant intended to violate the law by paying for Medicare or Medicaid business. Whether or not intent actually existed is left to judge or jury.

How to Defeat the Allegations?

Oberheiden & McMurrey, LLP has the expertise and the track record to explain, justify, or mitigate remunerations between referral sources and businesses. Throughout our careers, our attorneys have handled in excess of 1,000 civil and criminal health care investigations and led more than 200 criminal trials. Many of our attorneys come from senior positions within the Department of Justice and share the experience, insights, and contacts as former federal prosecutors in charge of health care matters. While every case presents unique challenges, the following defense strategies have proven to be successful in past Anti-Kickback representations.

Avoiding Criminal Charges. Our top priority in each case is to avoid criminal charges for our clients. We are committed to getting the case dismissed, securing your professional license, turning a felony into a misdemeanor, and avoiding jail time.

Early Intervention. The importance of early case intervention by experienced defense counsel cannot be emphasized enough. A sophisticated lawyer with the experience to carry out an effective and efficient defense strategy can cease the investigation, open a dialogue with the government, and find a suitable solution before the case gets out of control. Understanding how much is on the line for our clients, we will immediately find answers to the following most pressing questions: Why is the government investigating you? What law enforcement agencies are involved? Is the government planning to file criminal charges? What is the government’s ultimate goal in the case? What is a possible resolution to this case? We strive to provide our clients these answers immediately upon being hired.

Safe Harbor Defenses. We remind the government that not every violation of the Anti-Kickback statute is unlawful. The Anti-Kickback statute contains several so-called safe harbor exceptions that legitimize otherwise prohibited arrangements. While strict compliance with a safe harbor provides comfort that an arrangement will not violate the law, compliance with the safe harbors is optional and failure to fit within a safe harbor does not per se mean an arrangement is illegal. Among the most frequently applicable safe harbors are professional service agreements, space rental arrangements, equipment rental, personal services and management contracts, and the small investor safe harbor, see 42 C.F.R. § 1001.952(a)(2).

Fair Market Value. Where remuneration between referral sources and businesses exist, we can draw from our resources and bring in experts to determine that the business relationship in question meets fair market value and appears reasonable in light of the services provided. For example, in one of our prior cases, we defended a business relationship under which a referring physician received large amounts of monthly stipends. We were able to show that the amounts paid were justified under a fair market value analysis and therefore completely legal. In another case, we ended an investigation against a group of physicians that received large amounts of money from a health care entity to which they referred business by demonstrating the legal nature of what appeared to the government a criminal kickback case.

Oberheiden & McMurrey, LLP

Our background as former senior government officials in charge of health care prosecutions and our health care law expertise routinely allow us to convince the government to cease an investigation or to dismiss a case. We are profoundly familiar with health care investigations and know how to introduce applicable defense to the government. The following summaries represent outcomes that we recently accomplished for our clients in health care fraud and anti-kickback investigations.

  • Health Care Fraud
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.
  • Health Care Fraud
    Result: No criminal charges.

Defense Attorneys Serving Detroit

Nick OberheidenDr. Nick Oberheiden is a Harvard-trained and internationally educated health care fraud defense attorney. Nick has successfully represented health care executives, business owners, public officials, physicians, and lawyers in high profile prosecutions, scores of political corruption, government investigations, and media campaigns, including 60 Minutes. He is most known for stopping federal investigations before criminal charges can be filed. In addition to his health care defense practice, Nick leads internal investigations, implements corporate compliance programs, and teaches U.S. criminal law and federal litigation in the United States and abroad.

Lynette ByrdLynette S. Byrd is a former Assistant United States Attorney (AUSA). Clients greatly benefit from Lynette’s experience from the Department of Justice, where she prosecuted health care fraud, Anti-Kickback violations, False Claims Act, and Stark violations on behalf of the United States. Lynette has immense experience with health care law enforcement and she regularly argues federal matters for her clients.

We are available every day of the year. You can call us directly, complete our contact form, or email us directly.

313-888-8807
Including Weekends
Oberheiden & McMurrey, LLP
Serving Detroit, Michigan and Surrounding Areas
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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