Government & Internal Investigation
The Government Continues to Add Arrows to Its Anti-Fraud Quiver
Experienced Healthcare Fraud Defense Attorneys Discuss Anti-Fraud Information with Professionals
Former Medicare Prosecutors & Defense Counsel
Since 1990 the Government Accountability Office (GAO) has provided a report that calls attention to agencies and program areas that are at high risk for fraud, waste, and abuse. The report is released every two years and in conjunction with the start of a new Congress. On the first GAO report in 1990 and continuing with every report since, the Medicare Program has been identified as a program ripe for fraud. As a result of Medicare’s continued vulnerability to fraud, the Department of Health & Human Services (HHS) and the Center for Medicare & Medicaid (CMS) have taken numerous steps to reduce the Program’s exposure to various fraud schemes. Thanks to media coverage of numerous convictions across the country identifying millions of dollars in fraudulent activity, the provider community may be aware of some of the steps taken by HHS and CMS like the Healthcare Fraud Prevention and Enforcement Action Team (HEAT) or the Medicare Strike Force. However, these same agencies have taken other, less reported on steps, and have received the further fraud fighting assistance through the enactment of new laws. These other fraud fighting tools include the extension of the time for CMS to collect an overpayment, the establishment of the Healthcare Fraud Prevention Partnership (HFPP), the passing of the Patient Protection and Affordable Care Act, and the passing of the Fraud Reduction and Data Analytics Act.
Extension of Overpayment Statute of Limitation
The Social Security Act, specifically Sec. 1870, defines the time period within which CMS, or one of their contractors, can collect an overpayment. Per Sec. 1870 and prior to 2013, CMS had three years to recoup payments on erroneously paid claims. This was inconsistent with the time period CMS had to perform a post-payment review of a claim, which was four years. This four year identification, three year collection inconsistency was identified in a 2012 HHS OIG report that looked at overpayments reported by CMS as being collected. In the report, OIG looked at several issues relating to the identification, collection, and reporting of overpayments; however, one of the biggest issues identified by the report was that of $416 million reported to OIG as sustained overpayments, CMS collected only $83 million. CMS’s rationale for not collecting almost 80% of the overpayments identified was that they fell outside of the three year period allowed under the Social Security Act.
To address this shortcoming, OIG recommended CMS pursue legislation to extend the statute of limitations so that the recovery period exceeds the four year review period for paid claims. CMS agreed to explore the possibility of pursing legislative change and their lobbying efforts were successful. In 2013, Social Security Act Sec. 1870 was revised to prevent collection of overpayments on claims paid more than five years prior. Not only does this change enlarge CMS’s ability to collect overpayments but it brings the overpayment collection timeframe more in line with the five year statute of limitations on Healthcare Fraud
Healthcare Fraud Prevention Partnership
The Healthcare Fraud Prevention Partnership (HFPP) was created in 2012 as a groundbreaking partnership between the federal government, state officials, law enforcement, private health insurance plans and associations, and healthcare anti-fraud associations. HFPP was created as an exchange of date and information for the purpose of improving fraud fighting capabilities in the healthcare industry. Since its inception, HFPP has conducted several successful studies, identifying fraud trends dealing with false store fronts, phantom providers, and top billing pharmacies. The HFPP studies enabled partners to take substantive actions to stop payments from being made to these providers and to identify emerging fraud trends.
The HFPP is currently made up of 71 public, private, and state partner organizations. Data can be shared among 7 federal agencies, 14 state agencies, 39 private payers, and 11 associations. Members of the HFPP include HHS OIG, CMS, FBI, DOD, multiple Blue Cross Blue Shield plans, several state Health & Human Services, the National Association of Medicaid Fraud Control Units, and the National Insurance Crime Bureau. HFPP continues to seek out new partners, increasing data aggregation, providing broader visibility into the universe of payments, and improving partnership’s ability to identify fraud trends.
Patient Protection and Affordable Care Act
The Patient Protection and Affordable Care Act, also known as the Affordable Care Act or Obamacare, was passed in 2010. The Act contains nine titles with each title addressing a component of healthcare reform. One of the titles, Title VI – Transparency and Program Integrity, was drafted to ensure the integrity of federally financed health programs like Medicare and Medicaid. The largest component of Title VI was the new set requirements to combat fraud and abuse in the public and private programs.
Title VI requirements include provisions targeting physician referrals, gifts by drug and medical supply manufacturers, DME suppliers, and home health agencies. Furthermore, Title VI creates new penalties that will exclude individuals who order or prescribe an item or service, make false statements on applications or contracts to participate in Medicare or, most importantly, know if an overpayment and do not return the overpayment. Each violation under Title Vi can subject the violator to a fine of up to $50,000.
Fraud Reduction and Data Analytics Act
The Fraud Reduction and Data Analytics Act was signed into law on June 30, 2016 with a goal of to prevent, detect, and respond to fraud. Of the many mandates, the newly signed law requires the Office of Management and Budget (OMB) to establish guidelines for federal agencies to use the GAO framework and implement control activities related to fraud risk management. The GAO framework includes four concepts which include; a commitment to combating fraud, regularly assessing fraud risks, designing and implementing specific control activities, and evaluate the program effectiveness.
Federal agencies work to fight fraud within their programs and strive to avoid ending up on GAO’s High-Risk List or OMB’s High Error Programs List. As mentioned in the opening, GAO’s High-Risk List identifies federal programs and agencies that are susceptible to fraud and are most need of change. OMB’s High Error List identifies federal programs that reported over $750 million in improper payments in a year. The Medicare and Medicaid Programs have both been listed in the most recent GAO and OMB reports, with a total of $74.6 billion in improper payments combined identified (Medicare fee-for-service, Medicare Part D, and Medicaid). In fact, improper payments under the umbrella of HHS are second only to improper payments under the Social Security Administration.
Why is this Important for Providers?
HHS is a large government agency with huge budgets and an immeasurable amount of resources. Despite these huge resources, HHS still struggles with control fraud within the Medicare and Medicaid Programs – as evidenced by these programs continuously appearing on GAO and OMB high risk/error reports. In order to address these shortcomings, HHS has taken steps to increase the number of years providers are liable for overpayments, partnered with new agencies to improve the ability to identify fraud schemes and trends, and helped enact legislation that stresses the importance of constantly monitoring and combating fraud.
Providers need to be aware of these changes. Because of the high volume of improper payments and fraud that continue to permeate the Medicare and Medicaid Programs, HHS and their partners in law enforcement will continue to feverishly pursue those suspected of committing fraud. New partnerships provide greater access to data; therefore, providers that may have never been the subject of a healthcare fraud investigation may now have to deal with a level of scrutiny they had not felt previously. Providers that are not the target of a criminal investigation but are experiencing a Medicare Contractor audit (ZPIC, MAC, RAC, or other) need to understand that contractors performing these audits can go back almost twice as long as they once could and can collect overpayments on claims as far back as five years instead of three. Finally, with the creation of laws that emphasize the importance of consistent fraud monitoring, this increase in diligence will certainly continue through the foreseeable future.
We Can Help You
Oberheiden, P.C. consists of former Medicare fraud prosecutors and law enforcement personnel that have specific experience with hundreds if not thousands of criminal and civil healthcare cases. Our combined experience of decades in charge of Medicare and Medicaid investigations helps our clients to better understand what government entities are looking for when reviewing healthcare data and contemplating possible criminal or civil actions.
Why Do Clients Trust Oberheiden, P.C.?
At Oberheiden, P.C., our reputation as a winning move for clients facing federal investigations didn’t just materialize out of thin air – it was built the hard way. Here are a few reasons why our clients trust us so much.
Our attorneys do not “dabble” in federal law while practicing state law most of the time. Instead, our attorneys possess many decades of combined experience practicing federal law. Just as federal law differs from state law, different federal jurisdictions apply the law differently. Our offices in New York, Dallas, Detroit, and Baton Rouge are designed to handle these discrepancies.
2. Government Insights
The mind of a prosecutor and the mind of a defense attorney work very differently. Although our experience defending clients against federal investigations benefits every client, there is no substitute for prosecutorial experience. Fortunately, several of our attorneys switched sides – coming to us after enjoying distinguished careers as federal prosecutors. They bring with them incredibly valuable perspective that helps us to anticipate what is coming, and prepare for it wisely.
3. Our Winning Record
Nothing speaks more honestly about the true quality of a law firm than its track record. We have handled just about every type of threat that a client could face including indictments, criminal charges, unnecessarily burdensome investigations, and the loss of access to critical federal programs – among many others. Our clients are frequently delighted to learn that their cases have been closed with no civil or criminal liability.
If you are subject to a federal investigation, prepare to be ganged up on. The government possesses vast resources, and they often assign a team of investigators, federal agents, and prosecutors to cases that they consider important. You are going to have to have a team to respond to them. At Oberheiden, P.C., our attorneys have been working together for years, and they know just how to pool their resources to provide you with a robust defense.
5. Client Commitment – Our Firm’s Core Value
Despite all the talent and experience you will find here at Oberheiden, P.C., it is our dedication to our clients that puts it all together and makes us effective. We know what an invasive federal investigation can do to you, and we endeavor to treat your case with as much urgency as we would if it were our own businesses on the line. And we take care of your case as quickly and as economically as possible.
Experienced Medicaid Fraud Defense Attorneys Are Here For You
The attorneys of Oberheiden, P.C. have a track record of successfully defending Medicaid and Medicare dentists and other healthcare providers in government audits and investigations. Former Medicaid auditors, former federal healthcare prosecutors, and well-respected healthcare fraud defense attorneys assists clients, like you, across the United States. Our three priorities in each dental Medicaid fraud case are (1) to make sure that you keep your license and (2) that you will not be excluded from providing Medicaid services and (3) that a government investigation will not turn into a criminal matter.
Call us to speak to one of our experienced attorneys today and we will help you with your case.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.