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CMS Investigation Defense Strategies

If your healthcare practice or business is under investigation by the Centers for Medicare and Medicaid Services (CMS), you must be prepared to defend against substantial allegations of Medicare or Medicaid fraud.

In order to enforce the requirements of Medicare and Medicaid, the Centers for Medicare and Medicaid Services (CMS) relies on an extensive auditing program. CMS contracts with fee-for-service auditors to review providers’ and other healthcare entities’ program billings, and it directly audits sponsors for Medicare and Medicaid compliance. Due to the breadth of CMS’s auditing program, facing a CMS investigation is a significant ordeal. If your healthcare business or practice is under investigation, substantial penalties are at stake, and you need to engage experienced federal defense counsel promptly.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Former Healthcare Fraud Prosecutors and Special Agents for CMS Investigation Defense

At Oberheiden P.C. our federal defense lawyers and Medicare and Medicaid compliance consultants have centuries of combined experience in CMS and other agency healthcare fraud investigations. Frequently, CMS will work with the U.S. Department of Health and Human Services Office of Inspector General (DHHS OIG) or one of the U.S. Department of Justice’s (DOJ) investigative divisions or healthcare fraud task forces. Our lawyers include former DOJ healthcare fraud prosecutors, and our Medicare and Medicaid consultants include former DHHS-OIG Special Agents in Charge. As a result, we are able to offer our clients in-depth insights into the CMS investigation process, and we are able to execute effective defense strategies based upon real-world experience on both sides of high-stakes CMS inquiries.

These are the Most-Common Allegations in CMS Investigations

If your healthcare practice or business is under investigation by CMS, you need to determine precisely what allegations are being targeted. You cannot afford to take chances, and you cannot afford to build a defense against the wrong allegations. There are many different forms of Medicare and Medicaid fraud; and, in order to avoid unnecessary consequences, you need to make sure that your practice’s or business’s defense strategy is tailored to the specific circumstances at hand.

We have defended healthcare businesses and clients nationwide against all types of allegations of Medicare and Medicaid fraud. This includes representing hospitals, doctor’s offices, pharmacies, laboratories, durable medical equipment (DME) companies, sponsors, and other companies against allegations such as:

  • “Upcoding” reimbursable healthcare services, tests, equipment, medications, or supplies
  • “Unbundling” reimbursable services or items in order to bill at their individual rates
  • “Phantom billing” for services or items that were not actually rendered or provided to patients
  • Billing Medicare and Medicaid for services or items that do not qualify as “medically necessary” under the applicable program guidelines
  • Billing Medicare and Medicaid for “ghost patients,” or non-existent patients that the provider has not actually treated
  • Billing for telemedicine or telehealth services in non-compliance with the Medicare or Medicaid guidelines
  • Offering, paying, soliciting, or accepting unlawful “kickbacks” in the form of rebates, commissions, or referral fees
  • Fraudulently certifying patients for home health or hospice care (often in conjunction with the payment or receipt of illegal kickbacks)
  • Overprescribing or improperly dispensing or administering opioid medications in violation of Medicare or Medicaid guidelines
  • Medicare-Medicaid Plan (MMP) compliance violations and other forms of sponsor “fraud”

Due to the breadth of potential allegations (and, keep in mind, the above list is nowhere near comprehensive), determining why CMS is investigating your healthcare business or practice needs to be a top priority once you learn about the inquiry. When you choose Oberheiden P.C., our defense lawyers and consultants will use their experience to assess the circumstances involved and engage with CMS as necessary in order to determine what we need to defend against.

Our Process for Defending Clients During CMS Investigations

When we represent our clients during CMS investigations, we take a comprehensive approach that involves both (i) attacking the allegations against our client from all angles, and (ii) targeting favorable outcomes at all stages of the investigative process. With these dual priorities in mind, our process involves:

1. Promptly Intervening and Engaging with CMS

Upon being engaged for a Medicare or Medicaid fraud investigation, our attorneys will promptly intervene by making contact with CMS. We will engage with the CMS personnel working in the investigation, and we will seek to gather as much information as possible while also ensuring that no additional significant steps are taken without our knowledge and involvement.

2. Determining What Other Agencies (if Any) are Involved in the Investigation

We will also seek to determine if CMS is collaborating with any other agencies or task forces in conducting its investigation. As noted above, this is frequently the case, and at Oberheiden P.C. we have experience on both sides of healthcare fraud investigations involving CMS and:

  • U.S. Department of Health and Human Services Office of Inspector General (DHHS OIG)
  • U.S. Department of Justice (DOJ)
  • Drug Enforcement Administration (DEA)
  • Medicare Fraud Strike Force
  • Opioid Fraud and Abuse Detection Unit
  • Prescription Interdiction and Litigation Task Force (PIL)
  • State Attorney General Medicaid Fraud Control Units (MCFUs)

3. Conducting an Attorney-Client Privileged Internal Assessment

Once we know the agencies and allegations involved in the investigation, we will then conduct an attorney-client privileged internal assessment. The purpose of this assessment is to determine what CMS will find before it finds it so that we can structure our defense strategy appropriately. This also allows us to take a proactive approach to our client’s defense and steer the investigation toward a favorable outcome.

4. Building a Targeted Defense Strategy

Once we have all pertinent information about the investigation and the facts on the ground, we can then build a targeted defense strategy. Our defense strategy will be tailored specifically to the unique circumstances of your practice’s or business’s investigation, and it will be designed to achieve a positive result based upon the circumstances presented.

5. Working to Favorably Resolve the Investigation Without Additional Consequences

When facing a CMS investigation, the most-preferred result is to resolve the investigation without civil or criminal charges being filed. Our attorneys and consultants will work diligently to achieve this result, and we will continuously evaluate and reevaluate the options for achieving a favorable result as quickly and discreetly as possible.

FAQs: What Do You Need to Know When Facing a CMS Investigation?

Q: Why is my healthcare business or practice under investigation by CMS?


CMS conducts Medicare and Medicaid fraud investigations for a variety of different reasons. Frequently, an investigation will be triggered by an unfavorable audit determination. If your healthcare business or practice has recently been audited by CMS or one of its fee-for-service contractors, information uncovered during the audit may be what triggered CMS’s investigation. If your business or practice has not recently been audited, CMS’s investigation may have been triggered by its automated review of billing data, a patient complaint, a referral from another agency, or a whistleblower lawsuit.

Q: What are the potential outcomes of a CMS investigation?


The potential outcomes of CMS investigations range from termination of the investigation without further consequences to prosecution in federal district court for criminal healthcare fraud. CMS investigations can also lead to civil charges under the False Claims Act, Anti-Kickback Statute, Start Law, and various other federal laws. When facing a CMS investigation, understanding the nature of the allegations at issue is crucial to determining how to structure your practice’s or business’s defense.

Q: What are the penalties for improperly billing Medicare or Medicaid?


The penalties for improperly billing Medicare or Medicaid depend on whether the alleged “billing fraud” was intentional. If your healthcare practice or business is not being accused of intentionally overbilling Medicare or Medicaid, then civil penalties are on the table. These include fines, recoupments, attorneys’ fees, and program exclusion. If federal prosecutors accuse your practice or business of intentional billing fraud, then the individuals involved could be at risk for federal incarceration.

Q: How can a healthcare practice or business defend against allegations of Medicare or Medicaid fraud?


There are several potential defenses to allegations of Medicare or Medicaid fraud. Of course, one of the most-effective defenses is affirmative proof that your practice’s or business’s program billings are fully compliant. However, affirmative proof of compliance is not necessary; and, in some cases, the best approach is to work toward convincing CMS that there is not sufficient evidence to support civil or criminal charges for healthcare fraud.

Q: What should I do if my healthcare practice or business has improperly billed Medicare or Medicaid?


If your healthcare practice or business has improperly billed Medicare or Medicaid, you will need to work with experienced defense counsel to remedy the issue. You should not take any other steps unless and until advised to do so by your practice’s or business’s legal counsel. Voluntarily disclosing violations can mitigate the risk of prosecution and penalization, but it can also be extremely risky if not handled appropriately.

Schedule a Free Consultation about Your CMS Investigation

If you need to speak with a federal CMS investigation defense attorney about your legal needs, we encourage you to contact us promptly. For a free, no-obligation consultation with a senior attorney at Oberheiden P.C., call 888-680-1745 or get in touch online now.

Why Clients Trust Oberheiden P.C.

  • 1,000+ Cases Handled
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  • Experienced Trial Attorneys
  • Former Department of Justice Trial Attorneys
  • Former Federal Prosecutors, U.S. Attorney’s Office
  • Former Agents from FBI, OIG, DEA
  • Cases Handled in 48 States
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