Georgia Healthcare Fraud Defense
Throughout Georgia, healthcare providers and other businesses that bill Medicare, Medicaid, Tricare, and the Department of Labor (DOL) are being aggressively targeted in healthcare fraud audits and investigations. If your practice or business is being pursued by AdvanceMed, the Centers for Medicare and Medicaid Services (CMS), the Department of Justice (DOJ), the Office of Inspector General (OIG), the Medicare Fraud Strike Force or any other auditor, agency, or task force, it is important that you speak with an experienced defense lawyer as soon as possible.
All medical practices and commercial entities that bill Medicare, Medicaid, Tricare, and the Department of Labor (DOL) are subject to strict federal oversight. In addition to complying with the complex billing regulations that apply to each of these healthcare benefit programs, participating providers and businesses must maintain strict compliance with a bevy of health-care-specific and non-health-care-specific laws as well. Failure to comply can have severe consequences, ranging from recoupments and administrative penalties to substantial criminal fines and long-term federal imprisonment.
At Oberheiden, P.C., our team of federal defense lawyers brings remarkable and relevant experience to defending Georgia physicians, pharmacists, clinics, laboratories, hospitals, hospices, home health agencies, durable medical equipment (DME) manufacturers, and other clients in healthcare fraud audits, investigations, and trials. We have represented thousands of healthcare providers and other clients in Georgia and nationwide, in most cases with the result of no civil or criminal liability for our client. Our team includes several former DOJ attorneys who used to represent the government in healthcare fraud enforcement matters, and we utilize the knowledge and insights gained from this experience to pursue quick, cost-efficient, and favorable results for our healthcare clients.
Civil and Criminal Prosecution Risks for Georgia Healthcare Providers and DME Companies
Healthcare fraud enforcement has become a top federal law enforcement priority in recent years. Federal agencies such as the DOJ and the OIG, task forces such as the Medicare Fraud Strike Force, and “fee-for-service” audit contractors working with CMS (such as AdvanceMed) are focusing their enforcement efforts in “high-risk” areas such as Atlanta and other parts of Georgia, and they are aggressively pursuing steep penalties in an effort to deter future program fraud, waste, and abuse.
In targeting healthcare providers and other businesses in the medical industry (such as DME companies), federal authorities have a number of powerful tools at their disposal. These tools include:
1. False Claims Act
Violations of the Medicare, Medicaid, Tricare, and DOL program billing regulations can be prosecuted as civil or criminal offenses under the False Claims Act. The False Claims Act makes it a federal offense to submit any “false or fraudulent” claim for program reimbursement, and it imposes criminal penalties for intentional billing errors.
2. Anti-Kickback Statute
The Anti-Kickback Statute prohibits the improper use of program-reimbursed funds. Specifically, it makes it illegal for healthcare providers and other businesses to pay any referral fee, kickback, bribe, or other form of “remuneration” in exchange for a referral of a program beneficiary. Similar to the False Claims Act, the Anti-Kickback Statute includes provisions for civil and criminal prosecution.
3. Stark Law
The Stark Law is similar to the Anti-Kickback Statute in that it prohibits the payment of referral fees in connection with reimbursed services and supplies provided to program beneficiaries. However, the Stark Law applies only to physicians and their “related entities,” and only in cases involving Medicare and Medicaid referrals. The Stark Law is also exclusively civil in nature; however, physicians and companies targeted under the Stark Law can still face crippling fines and other financial penalties.
4. Controlled Substances Act
The Controlled Substances Act applies to all healthcare providers that prescribe, administer, and dispense prescription medications. This includes doctors’ offices, hospitals, addiction clinics, pharmacies, compound pharmacies, hospices, and other providers. The Controlled Substances Act is enforced by the Drug Enforcement Administration (DEA), which often works in close coordination with the DOJ and other federal authorities.
5. Healthcare Fraud Statute
The healthcare fraud statute imposes criminal penalties for essentially all fraudulent practices targeting Medicare, Medicaid, Tricare, and the DOL healthcare benefit program. If federal prosecutors find evidence of intent, they will likely aggressively pursue severe penalties under the healthcare fraud statute.
6. Other Federal Statutes
In addition to facing prosecution for health-care-specific offenses, providers and other companies and individuals can face prosecution for a variety of other federal offenses as well. For example, in criminal healthcare fraud cases, we routinely represent clients who are facing potential exposure for:
- Mail fraud
- Money laundering
- Wire fraud
- Tax evasion
- Other federal crimes
Common Issues in Federal Healthcare Fraud Audits and Investigations
If your practice or business is being targeted in an audit or investigation, what are the auditors or federal agents looking for? In short, they are looking for any evidence of improper billing requests submitted to Medicare, Medicaid, Tricare, or the DOL. Due to the breadth of these audits and investigations, and due to the risk for civil and administrative penalties (including fines and program exclusion) even in the absence of criminal intent, all individuals and organizations targeted for alleged healthcare fraud must take their circumstances extremely seriously. Some of the most-common issues that can result in exposure to civil and criminal penalties in healthcare fraud cases include:
- Inadequate or Missing Documentation – Poor documentation is one of the most-common factors leading to liability in healthcare fraud investigations. Physicians and other providers must keep detailed records of their physical examinations, consultations, treatment recommendations, prescription practices, and program billings, and any inadequate or missing documentation is going to get noticed by auditors or federal agents.
- Mischaracterization of Employees and Independent Contractors – Classifying marketers and other individuals as independent contractors is a good way to minimize costs and administrative burdens, provided that it is done properly and under appropriate circumstances. Mischaracterizing individuals as independent contractors, particularly those who receive percentage-based compensation, is considered a “red flag” among auditors and federal law enforcement agencies.
- Unlawful Marketing and Referral Agreements – Marketing contracts, consulting contracts, and medical director agreements will receive careful scrutiny during healthcare fraud audits and investigations as well. If key terms of the agreement are missing, or if a relationship does not reflect the terms of the parties’ contract in practice, then the Anti-Kickback Statute and Stark Law prohibitions may come into play.
- Lack of “Medical Necessity” – Each of the federal healthcare benefit programs has its own definition of “medical necessity,” and none of these definitions defer to the healthcare provider. As a result, questions of whether a treatment or procedure was “medically-necessary” for billing purposes are common during healthcare fraud audits and investigations.
- Financial Conflicts of Interest – Financial conflicts of interest that have negative repercussions (or perceived negative repercussions) for patients will be heavily scrutinized by auditors and federal agents. This includes referral relationships, related-party transactions, and other types of financial relationships that influence providers’ decisions regarding medical care.
- Billing and Coding Errors – Along with poor documentation, billing and coding errors are among the leading triggers for civil and criminal penalties in healthcare fraud cases. This includes mistakes made by in-house billing personnel as well as mistakes made by third-party billing administrators. Even when providers rely on outside billing “specialists” to handle their program billings for them, providers remain primarily responsible for ensuring regulatory compliance.
- Telemedicine Violations – As telemedicine has transformed dramatically over the past several years, the regulations governing telemedicine practice have fallen behind the times. As a result, practices that seem legitimate by modern technological and medical standards are still being prosecuted as forms of healthcare fraud.
- Lack of an Adequate Compliance Program – Regardless of the specific issues involved, being able to put forth a comprehensive compliance program and demonstrate proactive efforts to comply with the applicable federal laws and regulations is one of the most-effective defense strategies in healthcare fraud audits and investigations. In contrast, lack of an adequate compliance program will often be viewed as a critical (and perhaps intentional) shortcoming and can drastically increase a provider’s risk of federal prosecution.
This list is not exhaustive, and various other types of billing mistakes and improper business relationships can trigger civil and criminal penalties as well. Our experienced federal healthcare fraud defense attorneys can promptly assess your potential exposure and execute a defense strategy focused on protecting you against federal prosecution. Our attorneys are available 24/7, including weekends, so contact us now to get started with a free initial case assessment.
FAQs About Georgia Healthcare Fraud Defense
What is a qui tam lawsuit?
A qui tam lawsuit is also known as a whistleblower claim. The qui tam provision of the False Claims Act allows individuals with knowledge of potential healthcare fraud to initiate a case against the provider. Typically, a whistleblower first goes to federal prosecutors. Depending on the severity of the allegations and the evidentiary support the whistleblower presents, the federal government may choose to intervene in the case. However, even if the federal government does not decide to intervene, the whistleblower has the ability to proceed with the case on their own. If a whistleblower (or the federal prosecutors, if they intervened) wins the case, the whistleblower will receive a percentage of the amount recovered. If you recently learned that a whistleblower is seeking to bring a qui tam action against you or your practice, it is imperative that you reach out to a dedicated Georgia federal healthcare fraud defense attorney immediately. While these claims are suspect given the whistleblower’s stake in the outcome, you cannot afford to take any chances.
What is the Stark Law?
The Stark Law (42 U.S.C. § 1395nn) is similar to the Anti-Kickback Statute and the Eliminating Kickbacks in Recovery Act of 2018 in that it places a limit on physician referrals. Specifically, the Stark Law prohibits healthcare providers from referring patients to another provider if the referring provider has a financial interest in the practice they are referring a patient to. The Stark Law is unique among civil statutes in that it is a strict liability offense, meaning prosecutors do not need to prove that a physician intended to violate the law, making the referring physician’s intent irrelevant. Violations of the Stark Law can also result in civil liability under the False Claims Act. If you face a potential violation under the Stark Law, reach out to a knowledgeable Georgia federal healthcare fraud defense attorney as soon as possible.
Who should I talk to if I am under investigation for federal healthcare fraud?
One of the problems those under investigation for federal healthcare fraud face is that they do not know who the government has spoken to and what agreements they’ve made. This can make it difficult—and dangerous—for anyone facing fraud charges to know where to turn when learning of an investigation. The last thing you want to do is to reach out to a business partner to discuss the case when they are surreptitiously working with federal investigators. If you are in the midst of a federal healthcare fraud, the only safe person to speak with about the case is an experienced Georgia federal healthcare fraud defense attorney. An attorney can communicate with investigators on your behalf to learn more about the allegations so, together, you can develop a compelling defense to the allegations.
Are You Facing a Healthcare Fraud Audit or Investigation in Georgia?
If you have been contacted by auditors or federal agents, or if you have received a letter or subpoena from the DEA, DOJ, OIG, or any other federal law enforcement agency, it is imperative that you speak with a federal healthcare fraud defense lawyer as soon as possible. To schedule a free and confidential consultation with a senior defense lawyer at Oberheiden, P.C., call 888-680-1745 or request an appointment online now.