Oberheiden, P.C. is a federal health care fraud defense law firm with a nationwide presence. If you have received a target letter, subpoena, or civil investigative demand or otherwise been contacted by federal authorities in Washington D.C., you need to discuss your situation with an attorney as soon as possible.
Under the False Claims Act, the Anti-Kickback Statute and various other federal laws, health care providers in Washington D.C. who are accused of defrauding Medicare can face steep civil or criminal penalties. Even if a Medicare fraud investigation does not result in charges, the harm to your business’s or practice’s public reputation can be substantial if the allegations are made public, and providers can face wide-ranging consequences regardless of the “official” outcome of the government’s inquiry.
At Oberheiden, P.C., we represent Washington D.C. health care providers in Medicare fraud investigations, with an emphasis on prompt and discrete resolution. We have represented clients in Medicare and other health care fraud investigations nationwide, and the majority of our clients have never been formally charged. We have successfully resolved complex, multi-agency Medicare fraud investigations with no civil or criminal liability for our client, and we have protected our clients’ right to practice in every case we have handled.
What Do Washington D.C. Health Care Providers Need to Know about Medicare Fraud Investigations?
When facing a federal Medicare fraud investigation, promptly engaging experienced legal representation is critical to asserting a successful defense. However, it is also important for health care providers to play an active role in their defense; and, the more you know about Medicare fraud and the federal investigative process, the better able you will be to make informed decisions and assist your attorneys during the process. With this in mind, here are some critical facts about Medicare fraud investigations:
1. Federal Agencies Involved in the Investigation and Prosecution of Medicare Fraud
Identifying the agency (or agencies) handling your Medicare fraud investigation is a key early step toward building a defense strategy that is specifically-tailored to the circumstances of your case. The primary agencies that handle Medicare fraud investigations are:
- Centers for Medicare and Medicaid Services (CMS)
- Department of Justice (DOJ)
- Department of Health and Human Services Office of Inspector General (OIG)
- Federal Bureau of Investigation (FBI)
- Internal Revenue Service (IRS)
With our extensive experience in Medicare fraud investigations, we can quickly determine which agencies are involved, and we can use this information to gain key insights into the government’s case against you. This includes insights such as identifying the specific laws or regulations under which you are being targeted and whether your investigation is civil or criminal in nature.
2. Types of Billing and Coding Violations (and Apparent Violations) that Can Trigger Medicare Fraud Investigations
“Medicare fraud” is a broad term that encompasses an array of different billing and coding violations. Critically, it also encompasses improper billings that are both intentional and the result of honest human error. Despite the common use of the term “fraud” to refer to acts that are knowing and willful; in the context of Medicare compliance, providers can face civil prosecution even if they did not intentionally overbill the government.
Types of billing and coding violations that can be prosecuted as unintentional or intentional Medicare fraud include:
- Billing for services not provided to patients (known as “phantom billing”)
- Billing for services that were not “medically necessary” according to the Medicare billing guidelines
- Billing for services at a higher rate than the one allowed (referred to as “upcoding”)
- Billing for related services and supplies at individual, rather than bundled, rates (referred to as “unbundling”)
- Inflating charges, falsifying patient records and test results, and making gratuitous use of medical equipment
- Double-billing Medicare and/or other private or public insurers for services, equipment, or supplies
- Paying illegal referral fees, rebates, or kickbacks out of Medicare-reimbursed funds
3. Civil and Criminal Penalties for Medicare Fraud Under Federal Law
In most cases, the distinction between allegations of unintentional and intentional billing violations determines whether the government’s investigation is civil or criminal in nature. This is crucial, as the penalties in civil and criminal cases are drastically different. Depending upon the specific allegations against you as well as the volume of those allegations (i.e. whether you are being prosecuted for tens, hundreds, or thousands of improper billings), financial penalties in both types of cases can easily reach into the millions of dollars, and providers targeted criminally can face the potential for decades behind bars:
Civil Medicare Fraud Penalties (False Claims Act, Anti-Kickback Statute, Stark Law)
- Recoupment of overbilled amounts (repayment or withholding from future reimbursements)
- Pre-payment review of future claims (resulting in payment delays as long as six months)
- Civil fines (in excess of $21,000 for each individual fraudulent billing)
- Treble damages (three times the government’s actual losses)
- Attorneys’ fees (the government’s costs of investigation and prosecuting your business or practice)
- Exclusion from Medicare participation (loss of program eligibility for current and future health care operations)
Criminal Medicare Fraud Penalties (False Claims Act, Anti-Kickback Statute, Health Care Fraud Statute (18 U.S.C. § 1347)
- Criminal fines (often tens or hundreds of thousands of dollars for each individual offense)
- 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 (similar to the civil program-related penalties listed above)
Additional Considerations: Attempt, Conspiracy and Other Criminal Charges
Importantly, in criminal Medicare fraud cases, in addition to pursuing charges related directly to fraudulent billings, federal prosecutors will often pursue charges for other federal crimes as well. Criminal charges such as mail fraud, wire fraud, money laundering, and tax evasion can increase providers’ exposure significantly; and, under the federal attempt and conspiracy statutes, providers can be convicted of crimes even if they did not actually overbill Medicare or make improper use of Medicare-reimbursed funds.
Additional Considerations: State Licensing Board Disciplinary Action
Another critical consideration in Medicare fraud cases is the potential for state licensing board disciplinary action. Due to the varying standards of culpability under federal law and state licensing laws and ethics rules, physicians, pharmacists, and other licensed health care providers can face license suspension or revocation even if they are not charged federally as a result of a Medicare fraud investigation.
4. Defense Strategies for Civil and Criminal Medicare Fraud Investigations and Prosecutions
With these risks in mind, Washington D.C. health care providers targeted in Medicare fraud investigations must do everything possible to defend themselves against unwarranted allegations. At Oberheiden, P.C., we utilize several trial-tested strategies and defenses to protect our clients and to secure favorable resolutions as quickly as possible. These include:
- Early and Aggressive Intervention – Early and aggressive intervention allows our attorneys to identify the agencies involved in the investigation, the nature of the investigation (whether it is civil or criminal), and the scope of the allegations against you. It also lets the investigating agencies know that you are represented, and that our attorneys are actively working to protect you against prosecution.
- Evidentiary Defenses – In order to pursue charges, federal prosecutors must have sufficient evidence to support formal civil or criminal allegations. By raising questions about the sufficiency and admissibility of the government’s evidence, we will seek to convince the prosecutors handling your case that they will not be able to meet their burden of proof in court.
- Affirmative Defenses – Even if the government has evidence to support charges, this does not necessarily mean that you are at risk for a conviction. There are various affirmative defenses that apply in Medicare fraud cases (such as the safe harbors under the Anti-Kickback Statute and Stark Law) and that can provide a complete defense to civil or criminal culpability.
- Constitutional Defenses – If federal investigators or prosecutors violate your constitutional rights (which happens more often than you might think), then any evidence obtained as a result of the violation may be inadmissible in court. If prosecutors do not have any probative evidence that they can use against you, then they may not have valid justification to move forward with prosecution.
5. Considerations for Choosing Defense Counsel to Fight Allegations of Medicare Fraud
When choosing defense counsel for a Medicare fraud investigation, there are several important factors to consider. Here are five of the primary reasons why health care providers in Washington D.C. and nationwide trust the federal health care fraud defense team at Oberheiden, P.C.:
- Health Care Fraud Defense Experience – Our attorneys have centuries of combined experience in federal health care fraud cases and have successfully defended thousands of clients nationwide.
- Investigative and Prosecutorial Insights – Several of our attorneys are former health care fraud prosecutors who spent years or decades with the DOJ.
- Focus on Federal Matters – Our practice is devoted to federal defense, with particular emphasis on Medicare fraud and other health care fraud matters.
- Trial–Readiness – While we work to secure favorable pre-trial resolutions whenever possible, federal prosecutors know that our attorneys will not hesitate to litigate Medicare fraud cases at trial.
- A Team of Senior Attorneys – Our health care fraud defense team is comprised entirely of senior attorneys who work together to build and execute the strongest possible defenses for our clients.
Meet the Medicare fraud defense lawyers at Oberheiden, P.C.
Speak with a Defense Attorney at Oberheiden, P.C.
To inquire about legal representation for a Medicare fraud investigation in Washington D.C., please call 888-519-4897 or contact us online. We will arrange for you to speak with one of our senior defense attorneys as soon as possible.