For health care providers targeted in Medicare fraud investigations, proactively executing a custom-tailored defense strategy can drastically reduce the risk of facing charges at trial. Oberheiden, P.C.’s federal defense attorneys bring centuries of combined experience to representing health care providers in Indiana and nationwide.
“Medicare fraud” is a broad term that encompasses virtually all types of program billing violations. Although most violations are the result of failure to strictly adhere to the Medicare billing regulations, these violations – both intentional and unintentional – can lead to prosecution under the False Claims Act, the Anti-Kickback Statute, the federal health care fraud statute (18 U.S.C. § 1347) and various other federal laws.
During Medicare fraud investigations, health care providers must be extremely careful to protect themselves. This means both (i) taking proactive measures designed to prevent charges from being filed, and (ii) avoiding critical mistakes (and instructing personnel on how to avoid critical mistakes) that have the potential for severe consequences.
At Oberheiden, P.C., our practice is devoted to federal defense. We represent health care providers in Indiana and other states around the country in cases involving all types of Medicare fraud allegations. With our deep knowledge of the federal Medicare system, the federal civil and criminal processes, and our long track record of success, we have become go-to defense counsel for health care providers nationwide.
Federal Agencies that Investigate and Prosecute Health Care Providers Suspected of Medicare Fraud
During a Medicare fraud investigation, one of the key early steps toward developing a custom-tailored defense strategy is to identify the federal agency (or agencies) that are pursuing the investigation. While this will sometimes be obvious (for example, if you have received a subpoena from the Office of Inspector General (OIG)), it is not always as straightforward as it sounds.
When you engage Oberheiden, P.C.’s federal health care fraud defense team, our attorneys will begin working immediately to gather the information we need to build a strategic defense. This includes identifying the agency(ies) we will need to deal with, which may include:
1. Centers for Medicare and Medicaid Services (CMS)
The Centers for Medicare and Medicaid Services (CMS) are responsible for administering the federal Medicare system, and CMS gets involved in investigations targeting participating health care providers through a variety of different means. This includes being made aware of potential fraudulent billings by its “fee-for-service” contractors (ZPICs, MACs, and RACs), responding to complaints and whistleblower claims from patients and other providers, and reviewing providers’ program billing data.
2. Department of Justice (DOJ)
The Department of Justice (DOJ) is routinely involved in Medicare fraud investigations, and DOJ attorneys prosecute both civil and criminal Medicare fraud cases. The DOJ has a federal mandate to aggressively combat Medicare fraud, and it does so through a variety of aggressive investigative and prosecutorial tactics.
3. Department of Health and Human Services Office of Inspector General (OIG)
The Office of Inspector General (OIG) is frequently involved in Medicare fraud investigations as well. With its stated mission to, “protect the integrity of Department of Health & Human Services (HHS) programs as well as the health and welfare of program beneficiaries,” it often plays a central role in Medicare fraud investigations, grand jury proceedings, and civil and criminal prosecutions.
4. Federal Bureau of Investigation (FBI)
The Federal Bureau of Investigation’s (FBI) white-collar division investigates and prosecutes health care providers suspected of Medicare fraud as well. Often working with investigators from other agencies, FBI agents seek to obtain incriminating information from providers by executing search warrants, interviewing personnel and other witnesses, and through other means.
5. Internal Revenue Service (IRS)
The Internal Revenue Service (IRS) gets involved in Medicare fraud investigations where there is evidence that fraudulent billing practices have resulted in underreporting or underpayment of federal tax liability. The IRS has the authority to independently impose civil penalties or pursue criminal charges through its Criminal Investigation Division.
Billing Mistakes and Other Issues that Can Trigger Prosecution for Medicare Fraud
During a Medicare fraud investigation, these and other agencies will be looking for any evidence to suggest that the provider being targeted has engaged in any “false or fraudulent” billing practices. With the breadth of statutes such as the False Claims Act and the Anti-Kickback Statute, and with civil and criminal penalties applying on a “per claim” basis, unsuspecting providers can suddenly find themselves facing extraordinary penalties for alleged offenses such as:
- Billing for services not provided or that do not qualify as “medically necessary”
- Billing for services at a higher rate than the one allowed (referred to as “upcoding”)
- Billing for related services and supplies at individual rates (referred to as “unbundling”)
- Double-billing for services, equipment, or supplies
- Inflating charges, mischaracterizing patient services, and making unnecessary use of medical equipment
- Illegal prescription drug practices (including diversion, prescription forgery and falsification of patient records)
- Paying illegal referral fees, rebates, or kickbacks out of Medicare-reimbursed funds
Civil and Criminal Penalties for Medicare Fraud
The penalties for Medicare fraud depend upon whether the government pursues charges that are civil or criminal in nature. The False Claims Act and Anti-Kickback Statute include provisions for civil and criminal prosecution, while the federal health care fraud statute is exclusively criminal in nature. The Stark Law is another statute commonly involved in Medicare fraud investigations targeting physicians, and it exclusively provides for civil penalties.
While the specific penalties on the table in any particular case will depend upon the statute (or statutes) involved and the volume of the alleged billing violations, in general terms, potential penalties include:
Civil Penalties for Medicare Fraud
- Recoupment of overbilled amounts
- Denial of pending claims
- Pre-payment review of future claims
- Civil fines
- Treble (triple) damages
- Attorneys’ fees
- Exclusion from Medicare participation
Criminal Penalties for Medicare Fraud
- Criminal fines (typically tens or hundreds of thousands of dollars per count)
- Federal imprisonment (including the potential for life imprisonment in cases where fraudulent Medicare practices result in a patient’s death)
- Exclusion from Medicare participation and other program-related penalties
In addition to these federal statutory penalties, licensed health care providers can also face disciplinary action by their state licensing boards. Due to different standards for culpability, licensed providers can face discipline for alleged ethics violations related to their Medicare program billing practices even if federal investigators do not find sufficient evidence to warrant civil or criminal prosecution.
Defense Strategies in Medicare Fraud Investigations, Grand Jury Proceedings and Trials
When we defend Indiana health care providers in Medicare fraud matters, we deploy a variety of aggressive defense strategies that are designed to protect our clients as quickly, discretely, and cost-effectively as possible. These defense strategies include:
1. Aggressive Intervention in the Government’s Investigation
In addition to identifying the agency(ies) handling your investigation, there are a number of other key pieces of information we will need to gather quickly as well. We also want to let the agents and prosecutors handling your case that you have representation, and we will want to immediately begin setting the stage to pursue a successful resolution.
2. Challenging Evidence of Billing Violations and Intent
Whether your investigation is civil or criminal in nature, the burden of proof rests squarely on the government. If federal prosecutors do not have the evidence they need to win at trial – and if we can convince them of this fact once they have exhausted their investigative means – then any allegations against you should not hold up in court. By aggressively challenging each element of the government’s case, we can seek to build the leverage necessary to resolve your case before charges get filed.
3. Asserting Constitutional Defenses
If federal prosecutors have evidence against you, that evidence is only relevant to your case if it is admissible in court. Unlawful searches and other constitutional violations can render large volumes of records and data inadmissible; and, depending on the circumstances at hand, asserting your constitutional rights could be the most-efficient way to favorably resolve your case.
4. Asserting Affirmative Defenses
Statutory safe harbors and other affirmative defenses can also insulate health care providers from prosecution in cases where prosecutors believe they have the evidence they need to win a verdict at trial. We have successfully defended numerous clients by making strategic and effective use of safe harbor defenses.
Considerations for Choosing a Law Firm for Your Medicare Fraud Investigation
When engaging legal counsel for a Medicare fraud investigation, it is important to choose carefully. At Oberheiden, P.C., we offer:
- Nationwide Medicare Fraud Defense Experience
- Prior Experience as Federal Medicare Fraud Prosecutors
- An Exclusive Focus on Federal Defense
- Aggressive and Trial-Ready Case Strategies
- A Team Approach to Medicare Fraud Defense
Meet the federal health care fraud defense team at Oberheiden, P.C.
Schedule a Free Initial Consultation at Oberheiden, P.C.
If your Indiana medical practice or health care business is under investigation for Medicare fraud, you need to engage an experienced federal defense team as soon as possible. Our attorneys can help, and we are available to speak with prospective clients 24/7. To request a free and confidential consultation with a federal health care fraud defense lawyer at Oberheiden, P.C., please call 888-519-4897 or contact us online now.