Washington D.C. Health Care Fraud Defense
Respected Washington D.C. Health Care Fraud Defense Lawyers
The nation’s capital is at the center of the government’s fight against health care fraud in more ways than one. Our firm brings more than 100 years of experience in representing Washington D.C. health care providers in civil and criminal enforcement matters. If you need representation, contact the proven Washington D.C. health care fraud defense lawyers at Oberheiden, P.C.
For Washington D.C. health care providers, the risks of being targeted in federal investigations are very real. Over the past few years we have seen several high-profile takedowns in the National Capital Region. And with the government’s enhanced focus on providers in certain sectors (such as compound pharmacies, home health agencies, and providers that prescribe, dispense, and administer opioid medications), more providers than ever are being targeted for civil and criminal prosecution.
As a health care provider facing a federal fraud investigation, there are some important questions you need to have answered as soon as possible. These include:
- Why is the government looking into your business or practice? Are you being targeted for alleged coding violations, prescription drug fraud, offering or accepting kickbacks, or some other form of fraud?
- What is your obligation to respond? Were you served with an OIG or grand jury subpoena? Have you received a civil investigative demand (CID)? The nature of the government’s inquiry will determine your obligation to respond.
- Is the government’s inquiry civil or criminal in nature? In a civil case, you can face substantial monetary penalties, program exclusion, and other consequences. In a criminal case, long-term imprisonment will also be on the table.
- How long has your business or practice been under investigation? The longer you have been the subject of a federal inquiry, the more aggressive you may need to be in formulating and executing your defense.
- What is the scope of the allegations against you, and what are the potential ramifications? What statute(s) are you alleged to have violated? How far back do the government’s allegations go? If you are facing multiple charges under multiple statutes, your business or practice, your personal finances, and your personal freedom could all be at risk.
When we represent providers in federal health care fraud investigations, our Washington D.C. health care fraud defense lawyers focus on getting answers to these questions right away. Once we have been engaged, we will make contact with the agents and prosecutors involved in the case as soon as possible, and we will use our backgrounds as health care fraud defense attorneys and former federal prosecutors to gather the information needed to build a strategic defense. During this stage, we also work closely with our clients to identify potential weaknesses or shortcomings, and the attorneys on our health care fraud defense team collaborate to pursue a strategy that provides the best possible opportunity for a favorable outcome.
Potential Outcomes in Washington D.C. Health Care Fraud Investigations
In most cases, securing a favorable outcome means terminating the government’s investigation without civil or criminal charges. However, in some cases, the circumstances are such that further action is necessary. At the investigative stage, the potential outcomes of being targeted by authorities such as the U.S. Department of Justice (DOJ), U.S. Department of Health and Human Services Office of Inspector General (OIG), Drug Enforcement Administration (DEA), and Federal Bureau of Investigation (FBI) include:
- Termination of the investigation without civil or criminal charges
- Civil charges under the False Claims Act, Anti-Kickback Statute, Stark Law, and/or other federal health care fraud statutes
- Grand jury indictment and criminal prosecution
Aggressive Legal Defense for Health Care Fraud Investigations in Washington D.C.
Obviously, avoiding charges is the best-case scenario, and it is an outcome we pursue in every case we handle. Regardless of the facts and circumstances involved, there are a variety of potential defenses we can use challenge the government’s case. We will work diligently to present overwhelming evidence that the U.S. Attorney’s Office does not have a case to prosecute. This aggressive approach has allowed us to avoid criminal indictments in a significant percent of all cases we have handled, and to resolve every False Claims Act investigation with no civil or criminal liability for our client.
“[Oberheiden, P.C.] is unlike your stereotypical law firm. Their level of professionalism, dedication, and sensitivity to me and my situation made me feel comfortable and confident I was in the right hands. Hopefully, I won’t find myself in a situation where I’d need law services again but if I did they would be the first I’d call.” – Health Care Provider, Previous Client
“Dr. Oberheiden has successfully represented our company in various federal health matters involving the OIG, the Department of Labor, and the Department of Health and Human Services. Dr. Oberheiden quickly understands all issues and is able to convincingly present the client’s side of the story. From my experience with other lawyers, I consider Dr. Oberheiden to be among the best attorneys we have ever used. Should we ever need legal help, the first thing our company will do is to call Dr. Oberheiden.” – Health Care Provider, Previous Client
Our Areas of Practice – Health Care Fraud Defense
Our experienced Washington D.C. health care fraud defense attorneys and former senior DOJ prosecutors bring well over 100 years of collective experience to representing Washington D.C. health care providers in all fraud-related matters. Whether as defense lawyers or attorneys for the government, our team of Washington D.C. health care fraud lawyers have handled more than 1,000 investigations involving a wide range of allegations.
Billing and Coding Violations
Coding is a headache at its best. At its worst, it can trigger federal investigations that lead to civil and criminal prosecutions. Billing and coding violations are among the most-common allegations in health care fraud investigations, and providers accused of submitting improper claims for reimbursement – even unintentionally – can face fines, recoupments, treble (triple) damages, program exclusion, and other penalties.
Due to the enormous complexity of the Medicare, Medicaid, and Tricare billing regulations, billing and coding errors are common, and they are frequently the result of an honest human error. Few providers want to expose themselves to the risk of federal prosecution, and most go to great lengths to maintain compliance as best they can. Unfortunately, in many cases, even this is not enough. We routinely represent providers across the health care industry that are facing accusations of:
- Billing for non-allowable costs or excluded services (such as operational expenses or services rendered by an unlicensed practitioner)
- Double-billing (either to the same program, to multiple programs, or to a program and a private insurance company)
- Phantom billing (billing for services, supplies, or equipment not actually provided to patients)
- Unbundling (billing at the stand-alone rates for services, supplies, and/or equipment that are supposed to be billed at bundled rates)
- Up-coding (billing at a higher reimbursement rate than the one applicable to the billed service or item)
Anti-Kickback Statute and Stark Law Violations
The Anti-Kickback Statute and Stark Law make it illegal for health care to use funds from federal health care benefit programs to pay kickbacks, referral fees, and other forms of remuneration. The Anti-Kickback Statute applies to all health care providers, while the Stark Law applies specifically to physicians and entities with which they have direct or indirect financial relationships. These laws are also different in that the Anti-Kickback Statute applies to transactions involving funds from all health care benefit programs and includes provisions for both civil and criminal penalties – while the Stark Law applies only to Medicare and Medicaid-reimbursed funds and includes provisions for civil penalties only.
As summarized by the OIG, the Anti-Kickback Statute, “[p]rohibits offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate Federal health care program business.” The Stark Law, “[p]rohibits a physician from referring Medicare [or Medicaid] patients for designated health services to an entity with which the physician (or immediate family member) has a financial relationship unless an exception applies . . . [and p]rohibits the designated health services entity from submitting claims to Medicare [or Medicaid] for those services resulting from the prohibited referral.” Designated health services under the Stark Law include:
- Clinical laboratory services
- DME and medical supplies
- Home health services
- Inpatient and outpatient hospital services
- Outpatient pathology
- Outpatient prescriptions
- Parenteral and enteral nutrients, equipment, and supplies
- Physical therapy
- Prosthetics, orthotics, and related supplies
- Radiology and radiological therapy
We have extensive experience on both sides of Anti-Kickback and Stark Law investigations. In defending against allegations of illegal kickbacks and physician “self-referrals,” one of the most effective strategies is often to demonstrate that the transaction at issue falls within one of the statutes’ safe harbors. The broad prohibitory language in both statutes is subject to a broad array of exceptions, and these exceptions will often apply even in situations where providers do not structure their transactions with an eye toward compliance. Our Washington D.C. health care fraud defense lawyers are intimately familiar with all of the various safe harbors that are available under the Anti-Kickback Statute and Stark Law, and we can quickly examine your compensation arrangement or investment to determine whether a safe harbor applies.
False Claims Act Violations
The False Claims Act (FCA) prohibits any and all “false and fraudulent” claims submitted for federal program reimbursement. This includes bills submitted to Medicare, Medicaid, and Tricare. Any improper billing is considered a false and fraudulent claim under the FCA, and can potentially subject a provider to civil or criminal penalties. Civil penalties under the False Claims act include:
- Fines of approximately $21,000 per false claim
- Treble damages (three times the government’s actual losses)
- Program exclusion
Criminal penalties under the False Claims Act include:
- Fines of up to $250,000 for individuals and $500,000 for businesses
- Five years of federal imprisonment
As with other health care fraud investigations, investigations under the False Claims Act can result in loss of hospital privileges, professional license suspension or revocation, and other consequences as well.
Prescription Drug Fraud
Pharmacists, physicians, clinics, home health agencies, hospices, and other providers are increasingly being targeted in prescription drug fraud investigations. Many of these investigations involve allegations of improper prescription and dispensing of opioid medications, although investigations involving non-opioid medications are common as well.
Along with kickbacks and various forms of billing fraud, one of the most common allegations in prescription fraud investigations is involvement in the practice of prescription drug diversion – providing medications to individuals other than the patients for whom they are intended. Drug shorting and refill schemes are common methods of diverting medications, as are forging prescriptions, selling prescriptions, and dispensing more pills than were prescribed. When investigating providers for suspected involvement in prescription drug fraud, some of the types of factors federal agents look for include:
- Prescribing medications without a physical exam
- Limited patient interaction
- Lack of psychological counseling
- Lack of interdisciplinary approach
- Insufficient medical justification for prescriptions
- Financial arrangements with local pharmacies
- Failure to enforce office prescription policies
- High volume of prescriptions for certain medications
- Insufficient triage
- Routine prescription of Schedule II controlled substances
Home Health and Hospice Fraud
Home health agencies and hospices are subject to additional restrictions with regard to federal health care benefit program eligibility. In order to bill the government for services provided to program beneficiaries, home health agencies and hospices must first obtain physician certifications, and hospices must obtain election statements from their patients as well. Federal authorities routinely inspect home health agencies’ and hospices’ physician certification and election statement practices, and these providers can face prosecution under the False Claims Act and Anti-Kickback Statute for violations such as:
- Commencing treatment without a valid physician certification or election statement
- Obtaining fraudulent physician certifications or election statements
- Forging physician certifications and election statements
- Offering and paying referral fees to physicians who provide certifications and recertifications
- Backdating physician certifications and election statements
- Failing to keep adequate documentation of patients’ certifications and elections
Our Washington D.C. Health Care Fraud Defense Lawyers Answer Providers’ Questions about Investigations
Q: Should I cooperate with the government during a health care fraud investigation?
It depends. While a certain amount of cooperation can go a long way, you also need to avoid voluntarily disclosing information that could be used against you. Our experienced Washington D.C. health care fraud attorneys have extensive experience working with agents and prosecutors from all major federal law enforcement agencies (and several of our attorneys are former senior DOJ prosecutors), and we can advise you of the best course of action under your particular circumstances.
In some cases, self-disclosing billing errors can mitigate a health care provider’s liability under the False Claims Act. This protection is available if the provider:
- Fully self-discloses the violation within 30 days of discovery,
- Cooperates with the government’s investigation, and
- Does not make the self-disclosure under threat of government action.
However, self-disclosing billing errors can trigger further government inquiry. As a result, providers must have a clear picture of their potential exposure prior to sharing any information with federal authorities.
Q: What are some of the top risks facing Washington D.C. health care providers?
Providers who prescribe, dispense, and administer opioid medications are particularly at risk for being targeted in federal health care fraud investigations. In 2017, the DOJ established an Opioid Fraud and Abuse Detection Unit which is tasked specifically with, “investigating and prosecuting health care fraud related to prescription opioids, including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes.” The DEA and other agencies are aggressively pursuing providers suspected of contributing to the nation’s opioid epidemic as well, and providers charged with prescription drug fraud involving opioid medications can expect to face severe penalties at trial.
However, providers who deal with opioid medications are by no means the only ones being targeted. Today, the DOJ, Centers for Medicare and Medicaid Services (CMS), the Medicare Fraud Strike Force, and other authorities rely heavily on data analytics to identify targets for federal investigations. As a result, the following can all potentially trigger federal health care fraud investigations:
- Billing Medicare, Medicaid, or Tricare at a higher rate than other Washington D.C. area providers;
- Billing certain services, supplies, or medications more frequently than other local providers;
- Other “anomalies,” which, without context, may appear to be indicative of federal health care benefit program fraud.
Q: Can I be charged with health care fraud if I unintentionally submitted inaccurate bills or paid a prohibited referral fee?
Unfortunately, yes. While proof of intent is required in order for federal prosecutors to file criminal charges, you can still be charged civilly for unintentional violations of the False Claims Act, Anti-Kickback Statute, and Stark Law. If it turns out that someone within your business or practice has made a mistake, the Washington D.C. healthcare fraud defense lawyers on our fraud defense team can work with you to determine the best path forward. But, also keep in mind that the federal program billing regulations and anti-referral fee laws are extraordinarily complex, so you should not assume that any billings are improper until you have had your records reviewed by an experienced health care fraud defense attorney.
Contact Us for a Free Initial Case Assessment
If you are facing a federal health care fraud investigation, we encourage you to contact us promptly for a free initial case assessment. Our Washington D.C. health care fraud defense attorneys can help you understand your situation and formulate a strategic plan to respond to the government’s inquiry. To request an appointment with the health care fraud defense team at Oberheiden, P.C., please call (888) 519-4897 or submit our consultation request form now.