What to Do When Facing a Federal Investigation for COVID Health Care Fraud
The U.S. Department of Justice (DOJ) and multiple other federal agencies are aggressively targeting health care providers and other businesses suspected of taking advantage of the COVID-19 pandemic to defraud patients, consumers, businesses and government entities. These agencies are targeting a wide range of offenses, and federal prosecutors are seeking substantial penalties – including criminal penalties – in many cases.
Even in normal times, combatting health care fraud has consistently been among the DOJ’s top law enforcement priorities. The COVID-19 pandemic has caused the DOJ to bring health care providers and other businesses in the health care industry into even sharper focus. From improper billings for COVID-19 testing and treatment to improper loan applications under the Paycheck Protection Program (PPP), providers and businesses across the industry are finding themselves facing a broad range of allegations.
Current Federal Law Enforcement Priorities in the Health Care Sector
If your practice or business is the focus of a COVID health care fraud investigation, one of the first steps you need to take is to determine precisely what allegations are being targeted. Currently, the DOJ, the Department of Health and Human Services’ Office of Inspector General (DHHS OIG), the Drug Enforcement Administration (DEA), and other federal agencies are targeting health care providers and other businesses for offenses including:
Paycheck Protection Program (PPP) Fraud
The Paycheck Protection Program (PPP) was intended as a lifeline for small businesses impacted by the COVID-19 pandemic. Unfortunately, while many legitimate small businesses obtained forgivable loans under the PPP, Newsweek recently reported that as much as $84 billion lent under the PPP may have been fraudulently obtained.
As a result of the high volume of fraud under the PPP, federal authorities are closely scrutinizing PPP loan recipients. This includes many health care providers and other small businesses in the health care industry. Federal authorities are examining PPP loan applications and PPP loan forgiveness certifications for signs of possible fraud—and they are pursuing civil and criminal penalties depending on the specific circumstances involved.
COVID-19 Testing and Treatment Billing Fraud
COVID-19 treatment and testing are subject to the same billing rules and regulations that apply to other types of health care services. Federal authorities, Medicare and Medicaid audit contractors, and private health insurers are paying close attention to how health care providers bill for these services. There have been several instances of providers substantially overbilling for COVID-19 testing and treatment, and this has led to enhanced scrutiny of providers’ COVID-related billings.
Similar to other types of health care billing fraud, when faced with allegations of COVID health care billing fraud, providers must be prepared to substantiate their billings with appropriate documentation. Those that are not able to substantiate their billings can expect to face challenges during federal law enforcement investigations—even if their billings may have been legitimate.
COVID-19 Vaccine Billing Fraud
Health care providers are required to provide government-purchased COVID-19 vaccines to their patients at no cost. As outlined by the CDC, this means that health care providers cannot:
- Charge for administering the COVID-19 vaccine
- Balance bill for COVID-19 vaccinations
- Charge office visit or other fees when the only service a patient receives is COVID-19 vaccination
- Require additional medical services during a visit for COVID-19 vaccination
Given the federal government’s focus on rolling out the COVID-19 vaccines to the American population as rapidly as possible, providers suspected of interfering with access to the vaccine by charging prohibited fees can expect to face significant ramifications at the federal level. Likewise, providers that tack on service fees following patients’ visits can expect to face the possibility of substantial penalties in COVID health care fraud investigations.
Telemedicine and Telehealth Billing Fraud
The COVID-19 pandemic spurred adoption and acceptance of telemedicine and telehealth services at an unprecedented rate. But, while federal authorities and private insurers relaxed certain rules for telemedicine and telehealth services in the early stages of the pandemic, stringent rules remained in place, and today providers are expected to strictly adhere to all pertinent legal, regulatory, and contractual requirements.
Telemedicine and telehealth are subject to requirements that do not apply to in-person health care services. Providers must use different billing codes, and they must carefully navigate issues pertaining to licensed medical practice and the establishment of medical necessity, among many others. Even providers that adopted telemedicine and telehealth procedures specifically for the purpose of continuing to serve patients during the COVID-19 pandemic can expect to face federal scrutiny if their practices are not legally compliant.
Home Testing and Other Consumer Fraud Scams
In addition to targeting health care providers, the DOJ and other authorities are also targeting individuals and businesses suspected of engaging in home testing and other consumer fraud scams. The DOJ and DHHS OIG have both issued consumer fraud alerts pertaining to COVID-19, and the DOJ has already pursued several cases against defendants suspected of manufacturing, selling, and marketing ineffective, non-existent, and even dangerous home testing kits and other products.
Price Gouging for Medical Supplies and PPE
Early in the pandemic, there were concerns regarding nationwide shortages of personal protective equipment (PPE) and other medical supplies. This led to hoarding and price gouging, and this in turn led state and federal authorities to take decisive and aggressive action against these practices. While this is less of an issue at the current stage of the pandemic, the DOJ is still prosecuting cases arising out of these types of unlawful practices in 2020.
Opioid Fraud and Diversion
For many Americans, the impacts of the COVID-19 pandemic led to opioid dependence. There have also recently been concerns regarding possible dependence among COVID-19 “long haulers” who are being prescribed opioid medications. Opioid fraud and diversion have long been enforcement priorities for the DEA, and the DEA (along with the DOJ and other agencies) has placed much of the blame for the current opioid crisis on health care providers who they accuse of overprescribing unnecessary drugs.
In federal opioid fraud and diversion investigations, health care providers can face a wide range of allegations. This includes everything from violations of the Controlled Substances Act to fraudulently billing Medicare and Medicaid for medically-unnecessary prescriptions.
What To Do if Federal Agents are Investigating Your Practice or Business for COVID Health Care Fraud
In addition to determining why federal authorities are targeting your practice or business, when facing a federal investigation, there are many other important steps you need to take as well. As the target of a COVID health care fraud investigations, a health care provider or business should:
- Conduct an Internal Compliance Audit – Conducting an internal compliance audit serves multiple functions when facing a federal COVID health care fraud investigation. Most importantly, it allows health care providers and other businesses to make informed and strategic decisions in response to the federal government’s investigation.
- Gather All Relevant Documentation – During federal investigations, health care providers and other businesses must be prepared to produce multiple forms of documentation. They should begin collecting relevant records during the internal compliance audit process, and they should work with their defense counsel to determine what documents to disclose and what documents are protected by the attorney-client privilege or the privilege against self-incrimination.
- Establish a Defense Team and Protocols – Responding to a federal investigation requires collaboration amongst internal personnel and the provider’s or business’s outside federal defense counsel. The members of the defense team should be selected carefully in light of the allegations at issue, and there should be clear and well-delineated lines of communication.
- Assess Possible Defenses – Regardless of the circumstances at hand, there are likely to be a variety of defenses available. When facing a federal investigation, it is absolutely imperative to identify all possible defenses and make informed decisions about which defenses to put forward.
- Build and Execute a Targeted Defense Strategy – With a clear picture of the allegations at issue, the facts at hand, and the defenses that are on the table, health care providers and businesses can focus their efforts on building and executing a targeted defense strategy. In most cases, this will involve focusing on a pre-charge resolution, although in some cases it will be necessary to prepare for federal grand jury proceedings and the possibility of civil or criminal trial litigation.
In all cases, when facing a federal investigation, acting quickly is crucial to mitigating the risk of severe negative consequences. This means that health care providers and businesses should engage federal defense counsel promptly, and they should begin working with their defense counsel immediately to take the steps outlined above. At Oberheiden P.C., our federal health care fraud defense lawyers and consultants have centuries of combined experience on both sides of federal investigations, and we rely on this experience to advise and represent our clients effectively.
Speak with a Federal Health Care Fraud Defense Lawyer at Oberheiden P.C.
Are you (or is your practice or business) under investigation for COVID health care fraud? If so, you need to speak with an experienced federal health care fraud defense lawyer immediately. For a complimentary case assessment with a senior defense lawyer at Oberheiden P.C., call 888-680-1745 or contact us online now.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.