What You Need to Know About P-Stim Audits and Investigations
Experienced Former DOJ-Prosecutors Protecting YOUR Professional License
Across the United States, physician and chiropractic offices are being targeted for submitting false Medicare claims for so-called P-Stims. Federal authorities such as the Centers for Medicare and Medicaid (CMS), Medicare intermediaries, the U.S. Department of Health and Human Services (HHS), the Office of Inspector General (OIG), and Medicare prosecutors at the U.S. Attorney’s Office have begun scrutinizing a broad number of clinics in an effort to recoup and sanction erroneous billing practices. If your practice is under audit, you should immediately consult with experienced counsel to make sure your license and your practice stay protected.
When it comes to health care fraud defense, there simply is no firm like Oberheiden, P.C.
Billing and Coding P-Stim L8679 (Stivax)
In assisting Medicare providers, physician offices, chiropractic, and wellness clinics across the United States, Oberheiden, P.C. lawyers noticed that most P-Stim audits center around three billing instances described below.
- Billing for P-Stim under HCPCS Code L8679: The American Medical Association defines code L8679 as “Implantable neurostimulator, pulse generator.” However, the government takes the position that the P-stim application does not qualify as an “implantable” device. Instead, the various types of P-stims are applied as devices employing acupuncture needles attached to electrodes that are being applied to a patient’s ear through simple bandages.
- Billing CPT Code 64555 for the Actual Application of the P-Stim to the Patient. The American Medical Association defines Code 64555 as a “percutaneous implantation of neurostimulator electrode array, peripheral nerve (excludes sacral nerve). CMS explains that doctors using the P-stim without true electrodes in need of implantation (but mere acupuncture needles) should not bill under Code 64555.
- Billing Modifier 25. A number of providers have added Modifier 25 to Code L8679 procedures despite the fact that no additional medical treatment or complaint was recorded. Per CMS, purpose of Modifier 25, however, is to document and capture a “significant, separately identifiable E/M service” provided by the same physician/qualified nonphysician practitioner “to the same patient on the same day as another procedure or other service with a global fee period.”
What Could Happen in Your Case
Your practice may become subject to a Medicare audit. Several types of Medicare audits exist. In general, regionally spread throughout the United States, Medicare Administrative Contractors (MACs) and Recovery Audit Contractors (RACs) are tasked to discover medically unnecessary procedures and unjust reimbursement (“overpayments”). Similarly, Zone Program Integrity Contractors (ZPICs) investigate potential fraud by referring providers to the Department of Health and Human Services (HHS) and the Office of Inspector General (OIG), the two agencies prosecuting health care fraud on behalf of the Department of Justice. There are two ways to get on the CMS radar. One way is mere bad luck when your practice is picked by a somewhat random computer analysis; the other way is a request for records when CMS already has information to believe that your practice did something wrong.
License Suspension or Revocation
Paying back money may be one thing, but losing your license is the ultimate risk. If the government comes back with a finding of Medicare fraud, there is a real chance that your professional state board will be notified, and, if notified, will take action against your license. Don’t let this happen. There are many ways to avoid a finding of and an admission of health care fraud. The Oberheiden, P.C. track record in Medicare audits is easily summarized: not one provider has lost his/her license.
False Claims Act Investigation (31 U.S.C. 3729-3733)
The False Claims Act (FCA) sanctions inappropriate billing practices and utilization of wrong codes. Specifically, the federal False Claims Act imposes severe penalties for submitting false or fraudulent claims to CMS. False or fraudulent in this context means any claim that was submitted in violation of established billing practices. Importantly, violations of the FCA do not have to be willful or intentional. It is sufficient to submit a claim when the provider “should have known” that the code used was incorrect. Each claim submission for P-Stim reimbursement could amount to an FCA violation. Because the government is not required to prove intent, the FCA is among the most widely utilized federal health care fraud statutes. If found liable, providers are exposed to a penalty of up to $ 11,000 per claim submission, additional fines, and recoupments. Arguably, the P-stim code L8679 should have been coded as A9270, that is as a non-covered item or service.
OIG Subpoena: Department of Health and Human Services (HHS)
A common tool to investigate health care providers is by issuing so-called OIG subpoenas. The OIG, the Office of Inspector General, and the Department of Health and Human Services (HHS) are the two enforcement arms of the Department of Justice in health care cases. If you receive an OIG subpoena or if OIG-HHS agents visit your practice, you are affirmatively under federal health care fraud investigation. Often times, OIG agents will request patient files or detailed billing records to establish that you did not abide by the applicable rules. OIG subpoenas require skilled and proven defense techniques. A mere production of the files (or, worse, fighting the subpoena) is the most common mistakes attorneys make. The Oberheiden, P.C. lawyers will navigate your practice through the process relying on the experience of many hundreds of OIG investigations handled, as former Department of Justice prosecutors and as health care fraud defense lawyers for clients across the country.
The attorneys at Oberheiden, P.C. have been on the forefront of P-Stim cases and we have helped many hard-working doctors successfully defend their practice and their license. If you have questions or concerns about P-Stim cases, please call us today and request a free consultation with one of our experienced former Medicare prosecutors.
Can the Case Be Criminal?
Yes. Every health care fraud investigation has the potential for criminal prosecution. Pursuant to 18 U.S.C. § 1347, a person is guilty of health care fraud if the government proves beyond a reasonable doubt that the person:
- Knowingly and willfully executes, or attempts to execute, a scheme or artifice
- To defraud any health care benefit program or obtain, by means, of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program
- In connection with the delivery of or payment for health care benefits, items, or services.
Although the nature of P-Stim cases is predominantly civil (and not criminal), in two instances P-Stim audits can turn into a referral to the U.S. Attorney’s Office.
Bad Handling. As attorneys, we see all the time how a simple audit is underestimated or addressed incorrectly. What begins innocently with a request for some patient charts, can quickly turn into something bigger than necessary because providers decide to “handle” the matter themselves or with assistance of inexperienced counsel. To be clear, any Medicare audit has the potential for a referral to law enforcement. Mistakes made at the entry level of an audit can hardly be undone. Statements to CMS, the casual handing over of files, or, worse, retroactive manipulation of patient records all have the potential for disaster. From our work as federal health care fraud prosecutors at the Department of Justice, we have seen over and over how a mishandled audit can lead to a referral for prosecution. Don’t make that mistake! Recognize that you are not a lawyer and that the best real estate lawyer, or DUI lawyer, or even corporate health care lawyer may lack the specific experience dealing with federal law enforcement authorities and may not have the necessary track record of resolving audits at the first level.
Egregious Practice. A second way the case can turn criminal is when the initial finding demonstrates an egregious, abusive, systematic, or deliberate wrongdoing. Even in those instances, the investigation may begin with a simple audit. Experienced lawyers will immediately recognize the problem and initiate effective defense mechanisms to bring things in order before the government continues its investigation. Don’t allow the government time to build a case against you. Often, what begins apparently simple as a ZPIC audit, OIG subpoena, or other form of governmental inquiry, can quickly get out of control. Don’t let this happen!
The former U.S. prosecutors and lawyers of Oberheiden, P.C. are available to offer their experience in correctly and efficiently handling Medicare audits. Call us today and find out what former Department of Justice lawyers recommend in your situation.
Who Can Help Me Keep My Medical License?
At Oberheiden, P.C., our clients will work with seasoned attorneys, and in many cases former DOJ lawyers. We do not use associates or junior lawyers because nothing replaces experience. When your license may be on the line, we know that there is no time to experiment.
Federal Prosecutions and Audits in Connection with Code L8679
Q: I Just Learned that My Practice Is Under Audit Related to P-Stims. Will I Lose My License?
If your practice is under audit or investigation, you need to make sure that the case is not turning into a referral to the U.S. Attorney’s Office. CMS is working closely with state professional boards and it is of critical importance for you to be represented by experienced counsel to navigate you through the audit and to make sure that your license remains protected.
Q: What Are Criminal Penalties in P-Stim Cases?
The penalties for federal health care fraud depend on the specific statute (or statutes) at issue. Most P-Stim cases involve allegations under the False Claims Act. In a civil FCA case, the penalties can include recoupments, treble damages, fines, program exclusion, and other financial penalties. In a criminal P-Stim case, the penalties can include:
- Felony Conviction
- Criminal fines
- Up to 10 years of federal imprisonment for each count of health care fraud
- Up to 20 years of federal imprisonment for each count involving serious bodily injury to a patient
- A life sentence for health care fraud resulting in a patient fatality
When Should I Hire an Attorney?
If your practice utilized Code L8679, you should speak to a lawyer right away. Sound legal advice from experienced attorneys is warranted to avoid a referral to the U.S. Attorney’s Office. Mistakes made in routine or specific Medicare audits will lead to secondary or tertiary review or a referral to DOJ. If your practice received a Medicare audit request or if CMS agents came to your office to interview you (even more intimidating), please call the former Medicare Prosecutors of Oberheiden, P.C. immediately. We will analyze the audit request and discuss the significance of the investigation with you in a free and confidential consultation. As we have for all of our providers, we will PROTECT your license and will make sure to conclude the audit before it gets to another stage.
Which Attorney Will Handle My Case?
Oberheiden, P.C. does not utilize junior lawyers or paralegals. Your license is too important to us to let lawyers fresh out of law school defend your case. Instead, from the moment you contact us, you will be speaking to senior attorneys that have handled P-Stim cases and that have a history of favorably resolving Medicare investigations.
What Is Your Track Record When It Comes to P-Stim Cases?
With several P-Stim cases still pending, to this day, we achieved the two main goals that all of our clients shared: (1) we avoided criminal charges in all representations and (2) we made sure the providers’ license remained intact, not suspended, and sparkly clean.
5 Reasons to Choose Oberheiden, P.C. for Your P-Stim Case
When your license is on the line, and when you are at risk for facing civil or criminal charges for Medicare fraud, you need to feel 100% confident in your choice of legal representation. Here are five reasons why health care providers across the country trust Oberheiden, P.C.’s federal defense team for P-stim audits and investigations:
1. We Have Centuries of Relevant Legal Experience.
Our team is comprised exclusively of senior attorneys; and, collectively, our attorneys have centuries of combined experience in federal health care fraud cases. This includes extensive experience in P-stim audits and investigations. We have successfully defended health care providers in cases involving MACs, RACs, ZPICs, CMS, the OIG, the DOJ, and other federal agencies and task forces.
2. Our Experience Includes Prosecuting Federal Health Care Fraud Cases at the DOJ.
Several of our senior attorneys previously served as U.S. Attorneys and Assistant U.S. Attorneys with the DOJ. In this capacity, they prosecuted high-stakes Medicare fraud cases nationwide, working closely with auditors and CMS to target providers suspected of billing violations and other types of fraud. As a result, we are able to examine our clients’ cases from the government’s perspective and develop defense strategies that reflect our in-depth understanding of the government’s investigative and prosecutorial tactics.
3. We Focus Our Practice on Federal Health Care Fraud Defense.
Unlike other defense firms, federal health care fraud defense is at the core of our practice. All of our attorneys have intimate knowledge of the numerous laws, rules, and regulations that apply to Medicare-participating health care providers, and we are steadfastly committed to protecting our health care clients.
4. We Understand What is at Stake for Licensed Health Care Providers.
One reason for our devotion to protecting health care providers is our appreciation for the risks involved with facing a Medicare fraud investigation. As a health care provider, simply being accused of fraud can cause severe reputational harm; and, even if you are not charged federally, you could still be at risk for license suspension or revocation. We know that health care fraud investigations are often misguided, and we do not want you to unjustly lose your right to practice medicine.
5. We Work Diligently to Quickly and Discretely Achieve Favorable Results.
When you engage our defense team to represent you, we will work diligently to achieve a favorable result. We will fight to keep your case civil in nature, and we will use our knowledge and experience in P-stim cases to resolve your case as quickly and discretely as possible.
Speak to Skilled Former DOJ-Prosecutors—Today!
Oberheiden, P.C. offers free and confidential consultations, including on weekends. If you are in a situation of concern or investigation, you should not hesitate to reach out to those lawyers that previously led and supervised federal investigations before representing clients at Oberheiden, P.C..
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Oberheiden, P.C. assists Medicare providers, physicians, chiropractic, and wellness clinics across the United States.