Healthcare Fraud Defense
Federal Lawyers With Proven Healthcare Fraud Defense Experience
Table of Contents
Audits & Investigations | Whistleblower Defense Strategies | Grand Jury Subpoenas & CIDs | FBI, HHS, OIG Investigations | Search Warrant Defense | Indictments | Criminal Defense & Trials | Corporate Compliance | Internal Investigations
Successfully Protected Healthcare Clients in 45+ States | 888-680-1745
Are you being punished for your success? You have worked very hard to build your business. You have contributed to your community, and you have helped to improve quality patient care. You never had criminal intent. Your employees and vendors have a job because of you. You pay high taxes so that everyone else can benefit. And now comes the government and threatens to jeopardize everything you have accomplished? Isn’t it true that the government really wants to punish you for being more successful than others? Well, we think so. That’s why we have put together the A-Team of Federal Criminal Law Defense for you.
- We Don’t Surrender, We Fix.
- Top Trial Team: No Junior Lawyers, No Paralegals
- Former FBI, Former DOJ Staff, Former U.S. Attorney
- 95% Success Rate: 45 States (1,000+ Cases)
Call Dr. Nick Oberheiden If You Had No Intent to Do Anything Wrong | 888-680-1745
What is Healthcare Fraud?
The scheme to defraud a healthcare program normally involves false or fraudulent representations designed to access something of value— usually money. The intent of the accused is almost always the central issue at any healthcare fraud trial. Many times errors in billing and coding make up a large part of the government’s case against a defendant. That being said, the mere fact that there are errors in bills and coding submitted does not necessarily mean that a defendant had the requisite intent to defraud a health insurance program.
Burden of Proof
When an individual is accused of healthcare fraud, the government has to prove that the defendant engaged in a scheme to steal from a healthcare program, such as Medicare, DOL, Medicaid, Tricare, another government insurance program or a private insurance program.
As seen, healthcare fraud is a generic term that encompasses a variety of conduct designed to illegally obtain a financial benefit of a provider to the detriment of the state or federal government. The following list is not exclusive, but it summarizes some of the most common fraud examples.
The federal Anti-Kickback Statute is a criminal statute that prohibits persons or entities from knowingly and willfully soliciting, receiving, offering, or paying remuneration for referrals for goods or services payable to a government healthcare program, such as Medicare, Medicaid, and Tricare. This statute is designed to prevent fraud and abuse. The Anti-Kickback Statute includes referral fees, finder’s fees, bonuses, discounted leases, research grants, excessive compensation, and travel or entertainment.
Billing of government and private insurance programs utilize numerical codes that identify the specific procedure or service being performed. For every necessary procedure, government healthcare programs assign a dollar amount it will pay. Up-coding occurs when a healthcare provider submits claims for healthcare services that represent a more serious and/or more expensive procedure than what was actually performed. Up-coding is a form of healthcare fraud and may be a violation of the False Claims Act.
Services Not Rendered
Billing for services not rendered is a form of health care fraud that consists of submitting claims for healthcare services that were never rendered.
Ghost patients are patients who either do not exist or who never received the service or item billed for in the claim. Submitting claims for healthcare services of ghost patients are a form of health care fraud.
Inflating Cost Reports
Medicare reimburses hospitals and healthcare institutions for certain costs for the treatment of particular patients. These hospitals and healthcare institutions are required to file Cost Reports with Medicare. One common type of health care fraud has been for hospitals or healthcare institutions to inflate the costs on their Medicare Cost Reports, or to otherwise falsify information on these cost reports to maximize Medicare reimbursement. Cost report fraud scenarios may include falsely inflating costs related to patient care; seeking reimbursement for costs that are not related to patient care; seeking reimbursement for costs for non-Medicare patients; and improperly manipulating statistics.
Medicare Part D Fraud
In 2003, Congress passed the Medicare Prescription Drug, Improvement, and Modernization Act, which added “Part D” to the Medicare Program. The Part D program consists of prescription drug coverage and prescription drug insurance premiums. Since its enactment, it is expected that the Part D program will be the target of substantial fraud in the coming years. Forms of Medicare Part D Fraud include claims of duplicate billing; overcharging; enrollment fraud; red-lining; and improper rebates from pharmaceutical manufacturers and wholesalers.
Lack of Medical Necessity
In order to qualify for payment by government healthcare programs, healthcare services must be medically necessary. Providers are required by law to document the medical necessity of the treatment or services for which they are seeking reimbursement. Submitting claims for services, treatments, diagnostic tests, and medical devices that are not medically necessary is a common type of health care fraud.
Improper Financial Interest
Federal and state laws and regulations prevent physicians and other healthcare providers from having a direct or indirect financial interest in certain services provided to their patients. An example of this is the federal Stark Law, 42 U.S.C. § 1395nn and § 1396b. The Stark Law prohibits a physician from making a referral for certain designated health services to an entity in which the physician has an ownership or investment interest or with which he or she has a compensation arrangement. In addition, the Stark law covers investments and compensation paid to any member of the physician’s immediate family. Violations of the Stark Law or another federal can also result in a violation of the False Claims Act.
Bundling & Unbundling
A common type of healthcare fraud has been to “unbundle” procedures or tests and bill each one separately, which pursuant to Medicare and Medicaid guidelines are to be billed together. Medicare and Medicaid often will have lower reimbursement rates for groups of procedures commonly performed together. And, unbundling billing codes illegally increases a provider’s profits, resulting in greater reimbursement from Medicare and Medicaid.
Physicians, hospitals and other providers are required to provide certain certifications when submitting bills to government healthcare programs, such as Medicare, Medicaid, and Tricare. These certifications include medical necessity, actual performance, and regulatory compliance. In addition, healthcare providers that provide goods or services to government healthcare programs must satisfy all contractual obligations with the government. Falsifying such certifications in order to get a health care claim paid or to obtain additional business is a form of healthcare fraud and may also be a violation of the False Claims Act.
The goal we have when representing clients accused of healthcare fraud is to avoid criminal investigations. Oftentimes, an experienced healthcare fraud defense attorney, such as one of our former federal prosecutors, is able to channel a healthcare fraud case onto a civil path so that a provider’s license and freedom remain untouched and intact.
How Our Experienced Healthcare Fraud Defense Lawyers Have Resolved Healthcare Fraud Cases
Most healthcare fraud cases are based on the theory that a medical provider or a healthcare business (lab, pharmacy, hospital, home health agency) submitted fraudulent billing claims to Medicare, Medicaid, Tricare, or a commercial insurance company. Because billing mistakes are not uncommon in an industry known for its regulatory complexity, for the government to be involved, the alleged fraud must be widespread, systematic, and financially significant. In this context, billing errors are financially significant if the received reimbursement exceeds tens or even hundreds of thousands of dollars. “Fraud” is a fairly undefined term and in most cases the government will allege that a healthcare service lacked medical necessity, was outside the accepted standards of care (e.g. excessive testing), was billed too high, or was billed for but not provided.
Oberheiden P.C. has proven that each of these scenarios and other health care fraud charges are fixable. The sooner we get involved, the easier it is to resolve the matter. | 888-680-1745
You will know that you are under investigation if you or your business receives a healthcare audit request, a CID (Civil Investigative Demand), a subpoena from the Department of Health and Human Services (HHS) Office of Inspector General (OIG), a Grand Jury Subpoena from the Department of Justice (DOJ), or, if the case is already advanced, if your business experiences a federal search warrant or an indictment. An experienced attorney will understand the nuances of each of these scenarios and tailor a specific defense strategy.
Federal Healthcare Fraud (18 U.S.C. 1347)
- United States v. Client: Client was indicted for Medicare Fraud. The damage amount was $ 7m. Nick obtained probation for his client.
- United States v. Client: Client was indicted for Medicare Fraud. The damage amount was $ 3m. Nick obtained probation for his client.
- United States v. Client: Client was indicted for Medicaid Fraud. The damage amount exceeded $ 1m. Nick obtained probation for his client.
See 100+ more examples of Oberheiden P.C.’s winning healthcare fraud cases here.
Anti-Kickback Law (42 U.S.C. 1320a-7b)
One of the most common allegations in healthcare fraud investigations are so-called kickbacks. Unlike most other industries, healthcare laws prohibit certain types of referral incentives to protect the integrity and independence of a physician’s professional judgment. Even though virtually anything of value may qualify as a kickback (not just straight payments, but also indirectly through physician distributions in MSOs or medical directorship agreements etc.), most kickback cases are surprisingly defendable. A successful client defense requires two attorney skillsets: a superb healthcare law understanding as well as the ability to lead tough negotiations through compelling arguments. The following are just a few representative examples of how Oberheiden P.C. has successfully defended civil and criminal kickback cases across the entire country.
See 100+ more Anti-Kickback examples of Oberheiden P.C. cases here.
False Claims Act (18 U.S.C. 287)
Most FCA cases originate as whistleblower cases. That is, someone, often a former employee or a competitor, reports alleged fraud to the government by filing a lawsuit in an effort to later collect a reward. Targets of these whistleblower cases often find out about the existence of an investigation when they receive a Civil Investigative Demand (CID) or another form of a government subpoena (e.g. OIG subpoena) requesting documents and corporate information. The absolute priority in all of these defense cases is to make sure that the investigation does not turn into a criminal case—that is something Oberheiden P.C. has accomplished in every single whistleblower case. By the same token, Oberheiden P.C. is an asset protection specialist and protected the financial stability of its clients by dismissing or favorably settling these types of cases (e.g. in Los Angeles, in Florida, in Houston, in Philadelphia, in Dallas, in Portland, in Ohio etc.).
See 100+ more False Claims Act defense examples of Oberheiden P.C. here.
Aggravated Identity Theft
Aggravated identity theft is a good illustration to understand how important it is to be represented by trusted, experienced health care fraud defense attorneys. Recently, the Justice Department started to add aggravated identity theft to healthcare fraud indictments. Each count contains a mandatory two-year imprisonment. That means, probation is not an option. Oberheiden P.C. saw this trend quickly, and has successfully argued why aggravated identity theft is simply not applicable in the case—and saved clients from years of unnecessary prison time. Again, don’t gamble with your future. Call Oberheiden P.C. today.
See 100+ more examples of how Oberheiden P.C. defended federal government charges and felonies here.
Federal Conspiracy (18 U.S.C. 1349)
Many federal healthcare fraud cases are brought against medical providers and others as a conspiracy. The government essentially claims that multiple people have contributed something to the overall success of a fraud scheme. Let’s take the example of a marketer (M), a doctor (D), and a pharmacy (P). If a M unlawfully incentivizes D to send referrals to the pharmacy (“kickbacks”), then all three individuals may be charged by way of a conspiracy: the marketer for bribing, the doctor for accepting the bribe, and the pharmacy for billing claims that were based on a kickback. Oberheiden P.C. knows how to break that chain. We have successfully defended against hundreds of conspiracy charges, call us now to see how we did it!
See 100+ more examples of how Oberheiden P.C. avoided or defended federal conspiracy charges here.
Healthcare Fraud FAQs
What are the Three Types of Defense Attorneys?
There are three types of defense attorneys that can assist providers with health care fraud investigations in varying circumstances. These are:
- Civil Defense Attorneys – Civil defense attorneys represent health care providers in fraud matters involving insurance companies, benefit managers, and other private parties.
- State Defense Attorneys – State defense attorneys represent health care providers in matters involving state agencies such as state attorney general’s offices and Medicaid Fraud Control Units (MFCUs).
- Federal Defense Attorneys – Federal defense attorneys represent health care providers in matters involving Medicare, Tricare, and the DOL and VA health care benefit programs. This includes investigations as well as civil and criminal law enforcement cases.
Who Investigates Health Care Fraud?
There are numerous state and federal agencies that investigate providers suspected of health care fraud. This includes:
- U.S. Department of Health and Human Services Office of Inspector General (HHS OIG)
- Centers for Medicare and Medicaid Services (CMS)
- U.S. Department of Defense (DOD) and Veterans Affairs (Tricare and VA fraud)
- U.S. Department of Labor (DOL)
- U.S. Department of Justice (DOJ)
- Medicaid Fraud Control Units (MFCUs)
- Federal Bureau of Investigation (FBI)
- Internal Revenue Service Criminal Investigations (IRS CI)
In addition to these government agencies, contractors working with CMS audit health care providers as well. These include Medicare administrative contractors (MACs), recovery audit contractors (RACs), and uniform program integrity contractors (UPICs). Private insurance companies and benefit managers also conduct health care fraud investigations targeting participating providers. These audits and investigations can lead to recoupment demands, loss of eligibility, and other penalties.
What Are the Elements of Health Care Fraud?
The elements of health care fraud vary depending on several factors—including most importantly whether a case is civil or criminal in nature. In federal criminal cases, the elements of health care fraud under 18 U.S.C. Section 1347 are: (1) Knowingly and willfully (2) executing, or attempting to execute, a scheme or artifice (3) to defraud a health care benefit program or obtain funds from a health care benefit program under false pretenses (4) in connection with the delivery of, or payment for, health care benefits, items, or services.
In addition to pursuing criminal charges under 18 U.S.C. Section 1347, federal prosecutors can also pursue civil or criminal charges under the Anti-Kickback Statute, Eliminating Kickbacks in Recovery Act, False Claims Act, and various other federal laws. The Stark Law is another federal health care fraud statute that imposes civil penalties for engaging in prohibited patient referrals for “designated health services.”
What are the Major Types of Health Care Fraud and Abuse?
Health care fraud and abuse can take many different forms, and state and federal authorities target providers for a broad range of offenses. The major types of health care fraud and abuse include:
- Engaging in prohibited referrals for “designated health services”
- Falsifying test results and other patient records
- Offering, paying, soliciting, or accepting prohibited “remuneration” for patient referrals
- Overbilling Medicare, Medicaid, Tricare, the DOL, or the VA
- Overbilling a private health care insurance company
- Upcoding, unbundling, double-billing, “phantom” billing, and other billing and coding violations
Our Federal Defense Lawyers Represent Clients in Federal Healthcare Fraud Cases Nationwide – Including all CMS, DEA, DOJ, and OIG Matters
Regardless of your role within the healthcare industry, facing federal fraud allegations is an extremely serious matter. If federal agents are targeting your business or practice based upon allegations of Medicare, Medicaid, Tricare, or Department of Labor (DOL) fraud, failing to find the best healthcare defense could result in exposure to significant civil or criminal penalties.
Federal healthcare fraud allegations can take a variety of different forms, and federal prosecutors can pursue civil and criminal healthcare fraud charges under a multitude of federal statutes. As a result, when facing a healthcare fraud investigation on the federal level, a critical early step is to determine the scope and nature of the allegations against you. Are you being accused of overbilling Medicaid or Tricare or submitting false claims? Are you being accused of using Medicare-reimbursed funds to pay “kickbacks” or referral fees? Are you being accused of improperly prescribing, dispensing, or billing for opioid medications? Until you know why you are being targeted, you simply have no way of asserting an effective defense.
At Oberheiden, P.C., a significant portion of our practice is devoted to defending clients in federal healthcare fraud matters. When you engage our federal defense team to represent you, our healthcare fraud attorneys will work to quickly get to the bottom of the government’s investigation. To find out why you are being targeted and what penalties are on the table, call 888-519-4897 for a free and confidential case assessment from one of our senior healthcare fraud defense lawyers.
Defending Healthcare Fraud: Choosing the Right Lawyer
Healthcare fraud is a serious offense. Depending on the magnitude and the intent level of the wrongdoing, penalties range from civil monetary damages to imprisonment. More than ever before, the government is prosecuting fraud, and, for those that find themselves in the middle of a fraud investigation the question becomes: which lawyer should I hire to defend me? This brief blog will explain how the complexity of healthcare laws and regulations and corresponding government investigations should discourage targets of a healthcare investigation from hiring just any lawyer.
While every lawyer offers a skillset for certain areas of laws, effective healthcare fraud defense demands more than just being a generalist. Three features should be immediately noticeable when you talk to an attorney to defend yourself against a potential or actual government investigation: (1) a profound understanding of health care law, (2) a proven experience with government investigations, and (3) an impeccable track record.
Healthcare Law Background
First and foremost, the attorney you engage must be profoundly familiar with all healthcare laws. Many healthcare fraud cases operate between fine lines of honest mistakes and criminal liability. Often, this fine line is the decisive factor. A potential client should ask the lawyer how many healthcare clients he or she has represented in the past in the area of the client’s needs. Advising a chiropractor to set up an LLC is different from providing a comprehensive regulatory analysis for a DNA testing facility or conducting an internal audit for a toxicology laboratory.
But don’t just stop at theoretical knowledge. While there are a great number of healthcare fraud attorneys, very few of them are trained to negotiate with FBI agents and government lawyers, and even fewer lawyers have ever argued a case in court. In fact, most healthcare fraud lawyers understand the theory of healthcare law, but lack the practical component of arguing a case at the U.S. Attorney’s Office or the Office of Inspector General.
Healthcare law and fraud and abuse investigations operate in a small circle of lawyers and government officials. Attorneys frequently run into the same FBI agents and work routinely with the same prosecutors and appear before the same judges. This experience may help the lawyer to better anticipate the government’s next step, and may ease settlement negotiations with the government. After all, if your lawyer kept his or her word in the last case, the prosecutor will remember and trust him or her in this case. People talk, and lawyers at the U.S. Attorney’s Office and healthcare fraud defense attorneys are no exception. Reputation and past interactions with the government can make a decisive difference, especially in areas like healthcare investigations where the line between mistake and criminal misconduct can be very thin at times.
Finally, before hiring an attorney to represent you to maintain your freedom, you should find out what the lawyer’s track record is in cases similar to yours. Being a great general criminal defense lawyer is wonderful, when you are accused of assault or robbery. Instead, you should ask for the attorney’s track record in healthcare matters. What was the outcome in previously handled healthcare fraud cases? Was the lawyer able to avoid criminal healthcare fraud charges? How many fraud cases were dismissed under your lawyer’s leadership?
When you should choose Oberheiden, P.C. for your federal healthcare fraud matter:
- We will begin working on your defense immediately. With our attorneys’ experience representing healthcare providers and medical industry businesses across the country, we have cultivated a body of knowledge that allows us to get to work on our clients’ cases immediately. Unlike other firms, we do not need time to get up to speed on the legal and medical issues involved.
- We will work diligently to secure an efficient and discrete resolution. In today’s world, even unproven allegations can have devastating consequences for a business or practice. Our attorneys understand these types of concerns, and we will work to secure a discrete and favorable outcome as efficiently as possible.
- We will promptly assess your risk. By immediately intervening in the government’s investigation, we can quickly discern the allegations against you, including the volume of these allegations and whether they are civil or criminal in nature.
- We will be fully prepared if your case goes to trial. If your only option is to go to court, we will be fully prepared to represent you at trial when the time comes. Our attorneys have handled hundreds of civil and criminal trials in federal jurisdictions nationwide
- We will help you and your team make informed decisions. When facing a healthcare fraud investigation, there are several critical mistakes you need to avoid. A defense attorney will walk you through everything you need to know and train your staff so that you can effectively aid in your defense.
More about Our Federal Healthcare Fraud Defense Practice
We represent individuals and businesses in civil and criminal healthcare fraud matters nationwide. This includes representing licensed professionals, practice and business owners, facility administrators, clinics, laboratories, hospitals, hospices, home health agencies, and other clients in audits, investigations, and prosecutions in all 50 states. With a significant portion of our practice devoted to federal healthcare defense, we routinely represent clients facing allegations such as:
- Overbilling Medicare, Medicaid, Tricare, or the DOL
- Improperly prescribing, dispensing, or diverting opioid medications
- Billing for services not provided (so-called “phantom billing”)
- Improper practices related to physician certifications or patient election statements
- Billing for services that were not medically necessary
- Falsifying patient records or test results
- Double-billing federal benefit programs and/or a private health insurer
- Offering or accepting illegal kickbacks, bribes, or referral fees
- Billing and coding violations (including “upcoding” and “unbundling”)
- Attempt or conspiracy to commit healthcare fraud
Are you accused of a federal crime?
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Proven Results at All Stages of Healthcare Fraud Prosecution
If you have been contacted by federal agents or auditors working with CMS, it is important that you seek the best healthcare defense attorney promptly. While going to trial on federal criminal charges is a very real possibility, it is also possible that you could resolve your case short of trial – and potentially without criminal charges ever being filed. In fact, we have resolved the vast majority of our clients’ cases at the investigative stage; and, to date, we have avoided prosecution in every FCA investigation we have handled.
1. Fee-For-Service Contractor Audits (MAC, RAC, ZPIC)
Fee-for-service contractors working with CMS audit Medicare-participating healthcare providers on a regular basis. Unfortunately, these auditors have a financial incentive to find violations, and they often lack the up-to-date and in-depth knowledge required in order to accurately assess providers’ compliance with the Medicare billing regulations. We regularly represent providers in audits and appeals involving Medicare Administrative Contractors (MACs), Recovery Audit Contractors (RACs), Zone Program Integrity Contractors (ZPICs) / ZPIC audit, and other CMS fee-for-service audit contractors.
2. Federal Investigations
Federal healthcare fraud investigations can be civil or criminal in nature, and they can involve agents from CMS, DEA, DOJ, FBI, IRS, OIG, and various other agencies and task forces. The majority of our federal heath care fraud defense practice involves representing clients at the investigative stage, and we have protected the majority of our clients against any civil or criminal liability.
3. Grand Jury Proceedings
If you have been served with a grand jury subpoena, you do not have any time to waste. Federal prosecutors are pursing criminal charges, and an indictment will put your case on the path toward trial. We have extensive experience representing clients in federal grand jury proceedings, from challenging subpoenas to providing advice and representation in the courthouse.
4. Pre-Trial Practice and Plea Deal Negotiations
Once an indictment of criminal charges or civil charges have been issued, there will still be a significant amount of time before your case goes to trial. While many firms use this time exclusively for trial preparation, we use it as an opportunity to continue to fight for a favorable pre-trial resolution. From having indictments dismissed to negotiating plea deals that protect our clients’ practices and keep them out of prison, we utilize a variety of aggressive pre-trial defense strategies to protect our clients from the possibility of a “guilty” verdict at trial.
5. Trials and Sentencing
At the federal level, trial on the merits and sentencing are separate proceedings. Each requires a different approach, and our attorneys have extensive experience on both sides of federal healthcare fraud trials. We can use this experience to protect you, whether that means convincing the jury that the government has not met its burden of proof or arguing for a sentence below what is called for under the Federal Sentencing Guidelines.
In addition to handling civil and criminal health care fraud cases at the trial level, we also represent clients on appeal. Our defense team includes highly-experienced appellate attorneys who are licensed to practice before multiple U.S. Circuit Courts of Appeal.
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Potential Consequences of a Federal Healthcare Fraud Audit or Investigation
The potential consequences of a healthcare fraud audit or investigation vary depending upon the type of fraud alleged and the number of violations of which you are being accused. In all cases, however, the consequences can be severe, and some practitioners and business owners will face business-threatening and life-altering consequences as a result of the government’s inquiry. Depending on the circumstances involved, the consequences of being targeted for healthcare fraud can include:
- Recoupments – Providers and businesses accused of overbilling Medicare, Medicaid, Tricare, or the DOL will be required to repay all overbilled amounts and may be subjected to pre-payment review going forward.
- Program Exclusion – Civil and criminal healthcare fraud violations can result in exclusion from Medicare, Medicaid, Tricare, and DOL program participation.
- Treble (Triple) Damages – In addition to recoupments, providers and businesses will also generally be required to pay treble damages, or three times the government’s actual losses.
- Licensing and/or Registration Consequences – Healthcare fraud offenses can result in loss of DEA registration and trigger disciplinary action by state licensing boards.
- Civil or Criminal Fines – Civil and criminal healthcare fraud offenses also carry steep fines, with fines often applying on a “per-claim” basis.
- Federal Imprisonment – In criminal healthcare fraud cases, practitioners and business owners can face the potential for years, or even decades, of federal imprisonment.
- Civil or Criminal Fines – Civil and criminal healthcare fraud offenses also carry steep fines, with fines often applying on a “per-claim” basis.
- Costs and Attorneys’ Fees – Providers and businesses found guilty of healthcare fraud may also be required to pay the government’s cost of prosecution.