Will the Results of a UPIC Audit Be Shared with Prosecutors?
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 to avoid 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
Background
While prosecutors may not be privy to all the evidence collected by a UPIC Audit, certain problematic factors discovered during the audit will be flagged in the information sent by the auditor. Simply put, anything that reveals a likelihood that the provider did, in fact, engage in fraud is shared with the prosecutor. To fully appreciate the importance of maintaining both compliance and the perception of compliance, providers should understand that the categories below of information are regularly shared with prosecutors:
Documented Warnings and Educational Contacts
The red flags that are made privy to prosecutors include documented warnings by the UPIC and other government agencies to the healthcare provider before, during, and after an audit. Such documentation might include things like regular discrepancies and mistakes in coding or billing for unperformed services. When a provider receives documented warnings about errors in coding and billing, it is expected to correct the problems, or when legal action is taken by the government, explain why such errors occurred.
Educational contacts, those from whom prosecutors can gather pertinent information and evidence on the matter, are also shared with the prosecutors. While the exact information derived from everyone might not be given to the prosecutors, sharing the names of those with information serves as a guide to aide prosecutors in discovery. Providers should understand that prosecutors are subject to discovery rules that UPIC auditors may not be. So they do not enjoy the same broad power of demanding documentation.
The Complaints and Result of Previous Investigations
The government has multiple administrative means through which it can take corrective action against healthcare providers suspected of intentional or unintentional wrongdoing. A UPIC Audit is one such administrative process. Copies of the initial complaints that led to a UPIC audit are given to prosecutors to help them understand the nature of the case. Because Medicare and other agencies often have more investigative capabilities than prosecutors, who are subject to rules of discovery, the results of those investigations are given a lot of weight. The disposition of the case: whether it was referred to another agency, closed, payment recouped, or provider educated are factors that the U.S. Attorney’s Office considers reflective of the probability of success in prosecuting the previously investigated providers. Thus, the law permits prosecutors to be made privy to the results of previous investigations.
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Files Within the Retention Period
The Medicare Program Integrity Manual states, with regards to file retention, that: “Files/documents shall be retained for 10 years. However, files/documents shall be retained indefinitely and shall not be destroyed if they relate to a current investigation or litigation/negotiation; ongoing Workers’ Compensation set aside arrangements, or documents which prompt suspicions of fraud and abuse of overutilization of services.” This will satisfy evidentiary needs and discovery obligations critical to the agency’s litigation interests.
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