Q&A with Federal Health Care Fraud Defense Lawyer, Nick Oberheiden, PhD: What Do You Need to Know If Your Practice Is Under Investigation?
Dr. Nick Oberheiden is a highly experienced health care fraud defense lawyer who devotes his practice to representing clients in high-stakes federal investigations. Is your practice being targeted? If so, here’s what you need to know.
What do you need to know if your practice is under investigation for alleged fraudulent practices targeting Medicare, Medicaid, or Tricare? For many providers, this can be an extremely precarious situation. And avoiding costly and long-term consequences requires skilled and aggressive legal defense.
Dr. Nick Oberheiden is a federal health care fraud defense lawyer who has successfully represented a broad range of practitioners in investigations nationwide. Here, Dr. Oberheiden answers a number of commonly-asked questions about fending off potential fines, prison time, and program exclusion during federal investigations:
Q: Why is my practice under investigation by the federal government?
This is almost invariably one of the first questions health care providers ask during our free initial case assessments. Unfortunately, it is also one of the most difficult questions to answer with any degree of specificity at this initial stage. However, the general answer is this: In recent years, federal agencies, including the Department of Justice (DOJ), Drug Enforcement Administration (DEA), and Office of Inspector General (OIG) have ramped up their efforts to protect federal health care benefit programs (i.e., Medicare, Medicaid, and Tricare) against fraud and abuse. While these efforts initially focused on targeting fraudulent enterprises, today these agencies launch investigations into legitimate health care providers’ billing practices on a daily basis.
In many cases, these investigations are simply random. However, federal authorities may also choose to investigate a provider if the provider’s billing data is anomalous when compared to other similarly-situated providers. The investigation may also be initiated if the authorities receive a whistleblower complaint from an employee, patient, or competitor.
Q: What steps do I need to take to protect myself?
When facing a federal health care fraud investigation, the single most important thing you can do is hire experienced legal counsel to intervene in the investigation and start negotiating with prosecutors on your behalf. If you are under investigation, this means that you have not yet been charged – and you want to keep it this way if at all possible. When our firm represents health care providers during the investigative process, we work diligently and strategically to terminate the investigation without charges being filed and we have resolved the majority of our clients’ cases without charges or an indictment.
In addition to hiring legal counsel to represent you during the investigation, it is also important to:
- Determine which employee(s) need to be made aware of the investigation and advise them regarding what is (and isn’t) okay to do while the investigation is pending.
- Ensure that all records that are potentially relevant to the investigation are retained, including those that might otherwise be destroyed in the ordinary course of business.
- Make sure you are aware of any deadlines contained in any subpoenas or civil investigative demands (CIDs).
Q: Federal agents are asking for my practice’s patient and billing records. Do I have to hand them over?
Maybe. Whether – and to what extent – you must comply depends on a variety of factors, including (i) the nature of the request (e.g., was it an information request for an interview or an OIG subpoena?), (ii) whether the request is appropriate in scope, and (iii) whether you have any other grounds to challenge the request. Withholding information and sharing too much information can both have drastic consequences. Therefore, you should discuss the government’s request with an attorney before making any decisions that could impact your or your practice’s potential liability.
Q: What is at stake if my investigation leads to charges?
If you get charged, the risks you are facing will depend upon the specific statute(s) under which you are charged and whether the charges are civil or criminal in nature. In a civil case, penalties can include:
- Civil assessments (up to three times the government’s actual losses)
- Civil monetary penalties
- Denial of pending claims and pre-payment review
- Program exclusion (loss of Medicare, Medicaid, and Tricare eligibility)
- Licensing action by your state medical board
In criminal cases, health care providers can face financial penalties, program exclusion, licensing action, and long-term federal imprisonment.
Q: What should I do if I am aware of an issue with my practice’s program billings or an improper compensation-based referral relationship?
In these situations, you need to be extremely careful. While you must avoid incriminating yourself, you must also avoid disclosing violations that could trigger federal penalties as well. Also, are you absolutely certain that your practice is in violation of the law? Federal health care law is extraordinarily broad and complex (and billing regulations change regularly). A practice that appears to be unlawful may be justified under the circumstances at hand.
Q: Where can I learn more about protecting my practice during a federal investigation?
Our blog provides a wealth of information for health care providers facing high-stakes federal investigations. You can click here to read our latest updates. For some resources that are particularly relevant to health care practitioners who are facing active investigations, you can read:
- What Types of Billing and Coding Errors Constitute Health Care Fraud?
- What Types of Activities Are Covered Under the False Claims Act?
- What Is the Difference Between a Physician Self-Referral and a Kickback?
- What Constitutes a “Safe Harbor” in an Anti-Kickback Statute Investigation?
- When Can Business Owners Be Held Personally Liable?
In addition to reviewing our firm’s free online resources, I also encourage you to contact our offices to schedule a free and confidential case assessment. I will make time to meet with you in-person or over the phone, and I will help you develop a strategic action plan for moving forward.
Schedule a Free and Confidential Case Assessment
To schedule your case assessment with Dr. Oberheiden, please call (214) 692-2171or tell us how we can reach you online. You can contact our offices 24/7, and we will schedule your appointment as soon as possible.