Oregon health care provider that bill Medicare are increasingly finding themselves at the center of federal fraud investigations. If you have received a subpoena or civil investigative demand (CID), or if you have been contacted by the Centers for Medicare and Medicaid Services (CMS), the Office of Inspector General (OIG), or any other federal agency, it is important that you speak with an attorney promptly.
While Medicare fraud investigations have become routine in recent years, they remain extremely dangerous for health care providers. These investigations can lead to civil or criminal charges, and physicians, pharmacists, administrators, executives, board members, and others can be at risk for substantial fines, loss of Medicare eligibility, and even federal imprisonment.
At Oberheiden, P.C., our attorneys provide strategic and aggressive defense representation for Medicare fraud investigations in Oregon and nationwide. When we represent health care providers in Medicare fraud investigations, we take a comprehensive approach focused on identifying all potential defenses and executing a strategy that is designed to quickly secure a favorable outcome while also anticipating potential defense needs at future stages of the litigation. Our senior defense attorneys work as a team to identify issues, address potential weaknesses and areas of exposure, and leverage their past experience to our clients’ advantage. In all cases, we strive to protect our clients as efficiently and discretely as possible; however, we also make clear to the federal prosecutors handling our clients’ investigations that we are fully prepared to fight for a favorable outcome at trial.
Understanding Medicare Fraud Investigations in Oregon
1. The Investigating Agencies
Several federal agencies handle Medicare fraud investigations, and identifying the agency (or agencies) involved in your investigation will be an important early step in the process of developing an appropriate defense strategy. Our attorneys can examine the form and nature of any requests for information you have received to determine their source, and we can then use this information to determine the most-appropriate course of action going forward.
Most Medicare fraud investigations involve one or more of the following federal agencies:
- Centers for Medicare and Medicaid Services (CMS) – CMS has direct oversight of the Medicare system and routinely scrutinizes participating providers’ billing practices.
- Department of Justice (DOJ) – The DOJ investigates civil and criminal Medicare fraud cases, typically relying on data analysis and whistleblower allegations to determine which health care providers to target.
- Department of Health and Human Services Office of Inspector General (OIG) – The OIG is the law enforcement division of the Department of Health and Human Services (DHHS). It investigates civil and criminal Medicare fraud allegations, often working in conjunction with CMS, the DOJ, and other state and federal authorities.
- Drug Enforcement Administration (DEA) – The DEA gets involved in Medicare fraud investigations when they entail allegations related to providers’ drug prescription, distribution, or administration practices.
- Federal Bureau of Investigation (FBI) – The FBI’s white-collar crimes division conducts Medicare fraud investigations as well, and it has a field office in Portland, Oregon.
- Internal Revenue Service (IRS) – The IRS gets involved in Medicare fraud investigations when there is evidence to suggest that a provider may have underreported income and/or underpaid federal tax in addition to fraudulently billing Medicare.
2. The Most-Common Allegations
Although Medicare investigations vary in scope and severity in terms of the federal agencies involved, the volume of fraudulent transactions alleged, and the potential penalties that are on the table, most center around the same general categories of fraud-related allegations. Most of these allegations have to do with providers’ Medicare billings, although other transactions and patient-related practices can lead to federal fraud charges as well. In our recent experience representing Medicare-participating health care providers in Oregon and around the country, the most-common allegations in these investigations include:
- Billing for services not actually rendered to patients (phantom billing)
- Billing for services at a higher rate than the one allowed (upcoding)
- Billing for related services and supplies at individual rates rather than a reduced “bundled” rate (unbundling)
- Billing Medicare and another government benefit program (such as Medicaid or Tricare) or a private insurer (double-billing)
- Billing for services that do not meet the Medicare guidelines’ requirements for “medical necessity”
- Falsifying patient records, misrepresenting test results, and making unnecessary use of durable medical equipment (DME)
- Improperly prescribing, distributing, and billing for opioid medications and other prescription drugs
- Paying illegal referral fees, rebates, or kickbacks in violation of the Anti-Kickback Statute or the Stark Law
- Failing to properly report and pay taxes on Medicare overpayments
3. The Potential Penalties
The potential penalties in Medicare fraud investigations are determined by the specific allegations involved, the volume of those allegations (i.e. the number of fraudulent billings alleged), and whether the investigation is civil or criminal in nature. Broadly speaking, for health-care specific offenses, Oregon health care providers targeted in Medicare fraud investigations are at risk for:
Civil Penalties for Medicare Fraud (False Claims Act, Anti-Kickback Statute, and Stark Law)
- Civil fines
- Treble damages (three times the government’s actual losses)
- Attorneys’ fees
- Denial of pending claims
- Pre-payment review of future claims
- Loss of Medicare eligibility (program exclusion)
Criminal Penalties for Medicare Fraud (False Claims Act, Anti-Kickback Statute, and Federal Health Care Fraud Statute (18 U.S.C. § 1347)
- Criminal fines
- Federal imprisonment (including the potential for life imprisonment in cases where fraudulent Medicare practices result in a patient’s death)
- Exclusion and other program-related penalties
4. The Potential Defenses
While the risks of being targeted for Medicare fraud are severe, the list of potential defenses to Medicare fraud allegations is similarly lengthy. As your defense counsel, our attorneys will assess all potential defenses and pursue a cohesive and aggressive defense strategy focused on securing a favorable outcome as efficiently as possible. Some of the potential defenses to Medicare fraud allegations include:
- Lack of Evidence – In order to establish civil liability or secure a criminal conviction, federal prosecutors must prove each “element” of an alleged offense. If we can show that the government’s evidence of even a single element is lacking, this should be enough to prevent charges from being filed or to secure an acquittal at trial.
- Lack of Intent – The factor that distinguishes criminal culpability from civil liability in most cases is the provider’s subjective intent (i.e. whether a provider intentionally billed Medicare for services that were not actually rendered). If federal prosecutors cannot prove intent, then you do not deserve to be at risk for a criminal record, criminal fines, and federal imprisonment.
- Unlawful Search or Seizure – The Fourth Amendment’s protections against unreasonable searches and seizures apply during Medicaid fraud investigations. While federal agents do not need to obtain a warrant in all cases, if you were subjected to a warrantless search in violation of your constitutional rights, or if federal agents seized evidence that fell outsize of the scope of an authorized search, then you may be entitled to have this evidence excluded from your case.
- Denial of the Privilege Against Self–Incrimination or Right to Counsel – The Fifth Amendment’s privilege against self-incrimination and the Sixth Amendment’s right to counsel apply during criminal Medicare fraud prosecutions as well. Once again, if you were denied your constitutional rights, then any evidence obtained in violation of your rights should be deemed inadmissible in court.
- Safe Harbors – The Anti-Kickback Statute and the Stark Law both include several safe harbor provisions that exempt certain types of transactions from prosecution. If you are entitled to safe harbor protection (even if you did not know it when you entered into the transaction), our attorneys can use this to protect you.
However, when asserting these defenses, health care providers must be aware of prosecution risks that are related to – but entirely separate from – Medicare fraud. For example, under the federal attempt and conspiracy statutes, health care providers can face fines and five years in prison or longer even in cases where no fraudulent transactions actually occurred. As a result, simply establishing that your business or practice did not overbill the government will not necessarily save you from prosecution. Our attorneys are intimately aware of these types of issues, and we will structure your defense strategy accordingly.
5. The Potential Outcomes
The potential outcomes in any particular Medicare fraud investigation are entirely dependent upon the particular facts and circumstances involved. Once we learn more about your investigation, we can provide an assessment of what you can reasonably expect in terms of possible resolutions. Our past results for health care providers have included:
- Protecting clients against civil and criminal charges
- Avoiding civil and criminal liability in investigations involving all relevant federal agencies
- Dismissing federal indictments prior to trial
- Negotiating civil penalties that allow our clients to continue practicing and retain their Medicare eligibility
- Reducing felony charges to misdemeanors
- Avoiding federal imprisonment
Oberheiden, P.C. | Health Care Providers’ Choice for Medicare Fraud Defense Representation
To speak with a member of our federal defense team about your Medicare fraud investigation in Oregon, contact us now to arrange a free and confidential initial consultation. You can reach us by phone 24/7 at 888-519-4897, or tell us how we can contact you and we will be in touch as soon as possible.