Glossary: Understanding Your Federal Health Care Fraud Investigation
Is your business or practice being targeted in a federal health care fraud investigation? If so, the federal health care fraud defense team at Oberheiden, P.C., is here to help.
From acronyms to legalese, when you are facing a federal health care fraud investigation, you are likely to hear various terms with which you are unfamiliar. If you feel a bit lost, don’t worry – you are not alone. Even most lawyers who do not routinely practice in the area of federal health care fraud investigations will be unfamiliar with these terms.
Key Terms in Federal Health Care Fraud Investigations
But, when you are being targeted by the federal government, the more you know, the better. With this in mind, here are brief explanations of the key terms you are likely to hear during your case:
If your investigation is civil in nature (health care fraud investigations can either be civil or criminal), one of the types of penalties for which you are at risk is “civil assessments.” In federal health care fraud cases, civil assessments are the government’s damages (i.e., the amount of the alleged overpayment). However, in many cases, laws such as the Anti-Kickback Statute, False Claims Act, and Stark Law call for providers to pay civil assessments of three times the government’s actual losses.
Civil Monetary Penalties
“Civil monetary penalties” are another type of penalty in civil health care fraud investigations. In addition to paying civil assessments, providers found liable for health care fraud can also be required to pay civil monetary penalties of anywhere from $15,000 to $50,000 per individual violation.
Department of Justice (DOJ)
The “Department of Justice” or “DOJ” is the federal government’s top law enforcement agency. It employs prosecutors and investigators across the country who are devoted to targeting health care providers suspected of fraud. It also houses the U.S. Attorney’s Office, which is responsible for prosecuting health care providers in criminal fraud cases.
Designated Health Services
Under the Stark Law, physicians are prohibited from referring Medicare patients to entities with which they have a financial relationship if those entities are to provide “designated health services” to the patient. Designated health services are:
- Clinical laboratory services
- Physical therapy, occupational therapy, and outpatient speech-language pathology services
- Radiology and certain other imaging services
- Radiation therapy services and supplies
- Durable medical equipment and supplies
- Parenteral and enteral nutrients, equipment, and supplies
- Prosthetics, orthotics, and prosthetic devices and supplies
- Home health services
- Outpatient prescription drugs
- Inpatient and outpatient hospital services
Drug Enforcement Administration (DEA)
The “Drug Enforcement Administration” or “DEA” is the federal agency that is responsible for enforcing the Controlled Substances Act and the multitude of other federal drug laws and regulations that apply to drug manufacturers, physicians, pharmacists, and patients. The DEA routinely gets involved in investigations targeting registration violations, prescription drug fraud, and opioid diversion.
In addition to financial penalties (and federal imprisonment in criminal cases), another penalty that is on the table in federal health care fraud investigations is “exclusion.” If an entity or individual provider is excluded from Medicare, Medicaid, or Tricare, this means that the provider is no longer eligible to provide program-reimbursed medical services.
In the context of federally-reimbursed health care services, “fraud” means billing the government in any circumstance in which such billing is inappropriate. Some of the most-common allegations in federal health care fraud investigations include:
- Overbilling due to intentional or unintentional coding errors
- Offering or accepting illegal referral fees
- Billing for medically-unnecessary services or medications
- Billing for services or medications not actually provided to patients
- Improper physician certifications for hospice care and other practice-specific violations
A “kickback” is a form of unlawful referral fee for Medicare, Medicaid, or Tricare-reimbursed health care services. Providers who accept compensation from other providers, pharmaceutical manufacturers, or durable medical equipment (DME) companies to which they provide referrals can face civil or criminal penalties under the Anti-Kickback Statute.
Office of Inspector General (OIG)
The “Office of Inspector General” or “OIG” is the law enforcement division of the Department of Health and Human Services (DHHS). As such, it is responsible for investigating and prosecuting a broad range of health care fraud allegations – from overbilling Medicare for services to seeking reimbursement for diverted opioid medications.
“Qui tam” is a type of federal litigation in which a U.S. citizen files a claim on behalf of the federal government. These individuals (commonly referred to as “whistleblowers”) are often disgruntled former employees or competitors, and they can receive a substantial financial award for initiating a successful claim. The requirements to initiate a qui tam lawsuit are minimal, but these lawsuits can lead to substantial headaches and potential exposure for health care providers.
In addition to prohibiting kickbacks, the Anti-Kickback Statute also prohibits any and all other forms of unlawful “remuneration.” Remuneration is any form of incentive or inducement to provide a referral for program-reimbursed medical services or supplies. This includes cash, gifts, meals, travel, and other forms of monetary and non-monetary compensation.
The broad prohibitions of the Anti-Kickback Statute and Stark Law are tempered by a laundry list of statutory and regulatory “safe harbor” provisions. If a transaction or relationship qualifies for safe harbor protection, then it cannot serve as the basis for a federal health care fraud investigation.
A “subpoena” is a formal means for federal agents or prosecutors to obtain information during a health care fraud investigation. Authorities can subpoena witnesses or targets of federal investigations, and a subpoena can request documents, testimony, or both.
Contact the Federal Health Care Fraud Defense Team at Oberheiden, P.C.
The DOJ, DEA, and OIG are aggressively targeting health care providers in federal fraud investigations nationwide. If your business or practice is under investigation, it is imperative that you engage an experienced defense team immediately. To discuss your case with defense attorney, Dr. Nick Oberheiden, leader of our firm’s health care fraud defense team, call (214) 692-2171 or request a free case assessment online now.