The Medicare Fraud Strike Force and other federal authorities routinely target New York health care providers in civil and criminal fraud investigations. In order to mitigate their risk of severe penalties, providers must engage experienced legal counsel as soon as possible.
New York is home to world-renowned doctors and medical facilities. It is also home to one of 12 teams of the Medicare Fraud Strike Force stationed in select cities around the country. As a joint task force comprised of agents and prosecutors from the U.S. Department of Justice (DOJ), the Office of Inspector General (OIG), and other state and federal agencies, the Medicare Fraud Strike Force’s sole focus is on gathering the evidence needed to prosecute health care providers suspected of fraud.
However, for New York health care providers, the Medicare Fraud Strike Force is not the only source concern. The DOJ and OIG also investigate and prosecute health care providers independently, as do the Centers for Medicare and Medicaid Services (CMS), the Federal Bureau of Investigation (FBI), and various other federal agencies. With Medicare fraud costing the government and taxpayers billions of dollars every year, combatting Medicare waste and abuse continues to be a top federal law enforcement priority.
At Oberheiden, P.C., our nationally-recognized defense attorneys and former federal health care fraud prosecutors provide strategic and aggressive representation for New York health care providers that are being targeted in federal investigations and that are facing civil and criminal charges. With centuries of combined experience in federal jurisdictions across the county, we have a well-established track record of protecting Medicare-participating providers against unnecessary consequences. If your business or practice is being targeted by the DOJ, OIG, CMS, FBI or the Medicare Fraud Strike Force, acting quickly could be critical to mitigating your potential exposure. To speak with a member of our federal health care fraud defense team in confidence, call 888-519-4897 now.
Q&A with the Federal Health Care Fraud Defense Lawyers at Oberheiden, P.C.
Q: How do the DOJ, OIG, CMS, FBI or the Medicare Fraud Strike Force single out health care providers for Medicare fraud investigations?
One of the most-common questions we get from prospective clients is, “Why is my business or practice being targeted?” Health care providers usually ask this question because they do not believe that they have done anything wrong, and they do not understand why government resources are being wasted on looking into their Medicare billing practices.
In most cases, Medicare fraud investigations are triggered by one of three factors:
- Automated review of aggregated Medicare billing data (the Medicare Fraud Strike Force and other authorities utilize data analytics software to constantly monitor program billings for “anomalies” that may be indicative of fraud);
- Audit reports from Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs), and other “fee-for-service” contractors working with CMS; or,
- Complaints from patients or formal whistleblower claims filed by disgruntled former employees or competing companies or practitioners.
While there are many important things health care providers need to know when they are being targeted for possible prosecution, one of the most important things to know is this: At the federal level, lack of knowledge or intent is not a complete defense to liability. While demonstrating that you did not intentionally overbill Medicare may protect you from criminal charges, you could still face civil liability under the False Claims Act and other statutes. For this reason, providers must be extremely careful when structuring their defenses, and they must avoid unknowingly and unnecessarily disclosing information that could lead to civil charges.
Q: What types of billing and coding violations constitute Medicare fraud?
Virtually all types of billing and coding violations can be prosecuted as Medicare fraud under federal law. As discussed above, this includes both intentional and unintentional violations, and it includes improperly billing for services, supplies, and equipment as well as making improper use of Medicare-reimbursed funds. Some of the allegations we most frequently see in Medicare fraud investigations include:
- Billing for services not provided (referred to as “phantom billing”)
- Billing for services that were not “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
- Billing violations related to the improper prescription, distribution, and administration of controlled-substance medications
- Paying illegal referral fees, rebates, or kickbacks out of Medicare-reimbursed funds
Q: What are the penalties for Medicare fraud?
The potential penalties in a Medicare fraud investigation depend upon a few different factors. Most importantly:
- Is the investigation civil or criminal in nature? The types of penalties that are on the table will depend upon whether you are facing civil or criminal charges?
- What are the specific allegations against you? Different statutes carry different penalties; and, if you are facing multiple charges, you could be facing substantial aggregate penalties in both civil and criminal cases.
- What is the volume of the allegations against you? Various civil and criminal Medicare fraud penalties apply on a “per-claim” basis, which means that the penalty is multiplied for each individual fraudulent billing at issue in your case.
With these considerations in mind, the types of penalties New York health care providers can face in Medicare fraud investigations involving allegations under the False Claims Act, the Anti-Kickback Statute, the Stark Law, and the federal health care fraud statute (18 U.S.C. § 1347) include:
Civil Medicare Fraud Penalties
- 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 Medicare Fraud Penalties
- Criminal fines
- 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
If federal prosecutors pursue additional charges (such as charges for mail fraud, wire fraud, money laundering, or tax evasion), then additional fines and prison time will be on the table. Additionally, if you hold a state license, your investigation could result in disciplinary action at the state board level even if it does not lead to federal charges.
Q: What are some potential defenses to Medicare fraud allegations?
Similar to the potential penalties, the potential defenses in Medicare fraud cases depend upon the particular facts and circumstances involved. When we represent clients in Medicare fraud cases, in addition to promptly intervening in the government’s investigation, one of our first steps is to work closely with our client to determine the veracity of the allegations against them and determine what defenses they may have available. Since defenses can arise from mistakes on the part of investigators and prosecutors as well, we will also carefully scrutinize every step of the investigation to date to determine if we may have grounds to argue for having certain evidence excluded from trial.
Broadly speaking, the types of defenses that may be available to fend off charges in a Medicare fraud investigation include:
Does the government have the evidence it needs to prove the allegations against you? If not, then you do not deserve to be prosecuted, and you certainly do not deserve to be convicted at trial. While insufficient evidence of just a single element of a charge is enough to prevent liability, our attorneys work strategically to raise questions about the sufficiency of the government’s evidence with regard to each element of every statutory allegation.
Safe Harbor Defenses
In cases involving allegations under the Anti-Kickback Statute or the Stark Law, the safe harbor provisions in these statutes will provide complete defenses in many cases. A safe harbor prevents prosecution based on the particular facts at hand despite the fact that a particular transaction may violate the broad prohibitory language of the statute.
Searches, seizures, and interrogations are subject to clear constitutional protections; and, if federal agents or prosecutors violated your constitutional rights, then any evidence obtained as a result of the violation should be deemed inadmissible in your Medicare fraud case.
Q: What outcome can I expect if I engage Oberheiden, P.C. to represent me?
We cannot guarantee the outcome of any case. It is important to make that absolutely clear. However, what we can promise you is that we will utilize the full weight of our attorneys’ experience and our firm’s resources to develop and execute a case strategy designed to protect you to the fullest extent possible. Depending upon the circumstances at hand, this could mean:
- Avoiding civil or criminal charges
- Obtaining dismissal of charges prior to trial
- Negotiating civil penalties with no criminal plea
- Reducing felony charges to misdemeanors
- Avoiding federal imprisonment
Contact Us 24/7 for a Free and Confidential Case Assessment
If you need legal representation for a Medicare fraud investigation in New York, we encourage you to contact us promptly to schedule a free and confidential case assessment with a member of our federal health care fraud defense team. To speak with an attorney as soon as possible, call us 24/7 at 888-519-4897, or tell us how to reach you and we will be in touch as soon as possible.