How UPIC Audits Can Result in Government Investigations
Former Medicare Prosecutors & Defense Counsel
Oberheiden P.C. advises clients from across the country with UPIC audits, OESSA forms, and hospice and home health certifications. Our team of former federal healthcare prosecutors, many of which previously held positions involving oversight of UPIC audits and related issues, offer clients a wealth of government and private practice experience in avoiding and defending civil and criminal healthcare investigations, and UPIC audits.
Healthcare Fraud Team Lead
Former DOJ Attorney
Healthcare Fraud Team
Healthcare Fraud Team
Former FBI Special Agent
Healthcare Fraud Team
Former HHS-OIG Assistant Special Agent-in-Charge
Must Know Information
UPIC Audits lead to government investigations when auditors find the suspected fraud egregious enough that it warrants government investigation to determine civil or criminal liability, or both. Therefore, the institution of a government investigation after a UPIC Audit is the most serious and problematic result of the audit. Although the decision of referring a provider for further government investigations depends greatly on the substance of what is discovered in the UPIC audit, there is also a great deal of discretion that resides with the auditor. Therefore, providers should maintain a forthright and cooperative approach in all its dealings with the auditor. There are two ways that a UPIC Audit can lead to additional government investigation.
Referral to OIG & Other Law Enforcement Agencies
One of UPIC’s primary obligations is to refer verified allegations of fraud against a provider to the OIG for consideration of civil or criminal prosecution. In fact, UPIC auditors are contractually obligated to first refer their cases of suspected fraud to HHS OIG. They may, however, also refer such cases to other law enforcement agencies. For example, there is a memorandum of understanding (MOU) that permits UPIC auditors to refer cases simultaneously to HHS OIG and the FBI. The same memorandum also allows HHS OIG to act on the referral and determine whether to accept or decline the case before the FBI acts.
Another agency to which UPIC auditors can refer suspected fraud cases is a Medicaid Fraud Control Unit (MFCU) or any other state agency with authority to investigate the provider type undergoing the UPIC Audit. Providers should know that law enforcement, at times, has adopted the belief that if a provider is defrauding one government program, they are most likely defrauding multiple government programs. As such, it is not uncommon for a UPIC referral to be accepted and worked, in partnership, by HHS OIG, FBI, and MFCU.
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Referral to the U.S. Attorney’s Office as a False Claims Act claim
In instances of severe misconduct, UPIC auditors may refer a provider’s case to the U.S. Attorney’s Office to be prosecuted for violating the False Claims Act. The False Claims Act is one of the government’s strongest tools in preventing and prosecuting fraud committed against the government. Because healthcare providers often submit claims for payment by federal programs such as Medicare, such providers are often the subject of False Claims Act litigation.
Under The False Claims Act (18 U.S.C. § 287), the government must establish that the defendant: (1) made or presented a false, fictitious, or fraudulent claim to a department of the United States; (2) knew such claim was false, fictitious, or fraudulent; and (3) did so with the specific intent to violate the law or with a consciousness that what he was doing was wrong. Case law reveals that specific intent to defraud is not required. When a UPIC auditor has a qualified reason to believe that a violation of the FCA has occurred, it may refer the case as such. Because of the extensive and intrusive nature of a UPIC Audit, the U.S. Attorney’s Office, and DOJ, take the UPIC’s recommendation very seriously.
Generally, FCA claims against providers are prosecuted by the Civil Division of the applicable jurisdiction of the U.S. Attorney’s Office. Therefore, the penalty after litigation is generally a monetary civil penalty, which has a statutory limit amount. For the most up-to-date information on the limits of the monetary penalty, providers should consult an attorney working in the field.
We Can Help You
The attorneys of Oberheiden P.C. have handled a great number of UPIC audits and have assisted clients across the United States in avoiding referral for government investigation. Clients from across the country rely on our skillset and our advice.
Call us today and speak to one of our experienced attorneys directly, or reach out online today. We are available to discuss your situation in a free and confidential call, including on weekends.