In federal Medicare fraud investigations, Wisconsin health care providers can face recoupments, fines, program exclusion, and even federal imprisonment. If your business or practice is being targeted by the Department of Justice (DOJ), Office of Inspector General (OIG), or any other federal agency or task force, it is important that you seek legal representation immediately.
As a health care provider, complying with the Medicare program conditions and billing requirements is a never-ending process. With extraordinarily-complex rules that are constantly changing (and often left open to interpretation), even providers that have adopted comprehensive and proactive compliance programs can find themselves feeling unsure of their obligations.
Despite these concerns, federal authorities vigorously enforce participating providers’ compliance obligations, and those found not to be in compliance can face civil or criminal penalties. With investigations potentially involving the examination of years’ worth of billing records, and with penalties under the False Claims Act and other statutes applying on a “per claim” basis, providers targeted in these investigations can find themselves facing the potential for insurmountable financial liability.
At Oberheiden, P.C., our federal health care fraud defense team offers centuries of combined experience in Medicare fraud investigations. With experience representing health care providers in Wisconsin and nationwide, we have amassed a substantial track record of favorable results, including resolving the majority of our clients’ cases with no civil or criminal liability.
What Do Wisconsin Health Care Providers Need to Know about Medicare Fraud Investigations?
As a health care provider in Wisconsin, what do you need to know if you have been contacted by federal authorities regarding your Medicare billing record? How can you protect yourself? What can you expect during the investigative process?
1. The Federal Agencies that Investigate Medicare Fraud
The first thing to know is that several different federal agencies investigate cases of suspected Medicare fraud, and the agency (or agencies) handling your investigation can tell you a lot about the government’s case against you. We have represented health care providers in matters involving all investigating agencies; and, when you engage our firm to represent you, one of our first steps will be to identify the agency (or agencies) involved. The agencies that investigate Medicare fraud in Wisconsin include:
Centers for Medicare and Medicaid Services (CMS)
Typically, investigations conducted by the Centers for Medicare and Medicaid Services (CMS) are triggered by outliers in Medicare billing data or unfavorable audit determinations issued by Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs), Medicare Administrative Contractors (MACs), or other contractors participating in CMS’s “fee-for-service” audit program. CMS can impose civil penalties directly or turn cases over to the U.S. Attorney’s Office for criminal prosecution.
Department of Justice (DOJ)
The Department of Justice handles civil and criminal Medicare fraud investigations involving all types of fraud-related allegations. In criminal investigations, DOJ investigators and prosecutors will often seek evidence to pursue charges for attempt, conspiracy, mail fraud, wire fraud, money laundering, and other related criminal offenses as well.
Department of Health and Human Services Office of Inspector General (OIG)
The Office of Inspector General (OIG) uses a “multidisciplinary, collaborative approach . . . [and a] nationwide network of audits, investigations, and evaluations . . . [to] assist in the development of cases for criminal, civil and administrative enforcement.” While the OIG has oversight over more than 100 government benefit programs, it devotes the majority of its resources to fighting Medicare and Medicaid fraud.
Drug Enforcement Administration (DEA)
The Drug Enforcement Administration (DEA) gets involved in investigations involving prescription drug-related offenses. While the DEA is currently devoting a significant portion of its resources (along with other agencies) to combatting the nation’s opioid epidemic, it routinely pursues charges related to the improper prescription, dispensing, and administration of other medications as well.
Federal Bureau of Investigation (FBI)
The Federal Bureau of Investigation’s (FBI) white-collar division has jurisdiction over cases involving all types of Medicare fraud allegations. FBI agents will frequently work in conjunction with investigators and prosecutors from other agencies to build cases against health care providers.
Internal Revenue Service (IRS)
The Internal Revenue Service (IRS) gets involved in Medicare fraud investigations when there is evidence to suggest that providers have evaded their federal income tax liability (either intentionally or unintentionally). While the IRS regularly imposes civil monetary penalties, it also pursues criminal tax evasion cases through its Criminal Investigations Division.
2. What are These Agencies Looking For?
In Medicare fraud investigations, these agencies are looking for a variety of different types of statutory violations. While many of these violations involve billing and coding errors under the Medicare program guidelines (which can trigger False Claims Act or federal health care fraud statute (18 U.S.C. § 1347) liability), we are regularly called upon to defend clients in investigations involving allegations related to prescription practices, referral fees, and other prohibited transactions.
Some of the most-common allegations against health care providers in Medicare fraud investigations include:
- Billing for services not provided
- Billing for services that are not “medically necessary”
- Billing for services at a higher rate than the one allowed (referred to as “upcoding”)
- Billing for related services and supplies at individual rates (referred to as “unbundling”)
- Double-billing for services, equipment, or supplies
- Improperly prescribing, diverting, and improperly filling prescriptions for opioids and other medications
- Inflating charges, falsifying patient records, and making unnecessary use of medical equipment]
- Paying illegal referral fees, rebates, or kickbacks out of Medicare-reimbursed funds
3. What are the Penalties for Medicare Fraud?
Medicare fraud can be prosecuted as either a civil or criminal offense, with intent being the distinguishing factor between civil and criminal charges in most cases. If federal prosecutors are seeking to charge you with criminal Medicare fraud, a key focus of our defense strategy will likely be to challenge any evidence the prosecutors are trying to use to show subjective intent. Depending upon whether your case is civil or criminal in nature, the potential penalties for Medicare fraud include:
Civil Medicare Fraud Penalties
- Recoupment of overbilled amounts
- Denial of pending claims
- Civil fines
- Treble (triple) damages
- Attorneys’ fees
- Pre-payment review of future claims
- Exclusion from Medicare participation
Criminal Medicare Fraud Penalties
- Criminal fines
- Federal imprisonment
- Exclusion from Medicare participation and other program-related penalties
In order to put these penalties into context, there are a few important considerations to keep in mind. First, generally speaking, the financial penalties for Medicare fraud are calculated based upon the number of billing violations at issue. This is true not only for recoupments and damages, but also for fines, which are applied on a “per-claim” basis.
Second, the penalties in a criminal Medicare fraud case can be multiplied as a result of prosecutors pursuing multiple charges, or multiple counts of an individual charge. For example, while health care providers can face fines and prison time under the False Claims Act and the federal health care fraud statute (18 U.S.C. § 1347), they can face additional fines and prison time if prosecutors also pursue charges for mail fraud, wire fraud, money laundering, tax evasion, or other offenses. Additionally, 18 U.S.C. § 1347 imposes enhanced penalties – including the potential for a life sentence – in cases where providers’ illegal conduct results in serious bodily injury or death (i.e. if a patient overdoses on an improperly-dispensed opioid medication).
Third, for licensed health care providers, these penalties are not the only concern. Since the standards for state ethics violations (in terms of the severity of violations that can trigger discipline) are generally much lower than those for civil or criminal culpability, licensed providers can face disciplinary action even if they are not charged at the federal level. For this reason, and since providers can still face criminal attempt and conspiracy charges in circumstances where no Medicare billing violations have actually occurred, providers must be extremely careful when choosing what they say and how they structure their defenses.
Oberheiden, P.C. | Defense Counsel for Medicare Fraud Investigations in Wisconsin
In order to mitigate the risk of these penalties and other business or practice-threatening consequences, health care providers targeted in Medicare fraud investigations must engage defense counsel immediately. At Oberheiden, P.C., we offer:
- Experience – Our attorneys have handled thousands of health care fraud investigations and hundreds of federal trials.
- Government Insight – Several of our senior attorneys served as federal health care fraud prosecutors with the DOJ prior to entering private practice.
- Federal Focus – We focus our practice on federal defense, with particular emphasis on representing health care providers in fraud-related investigations.
- Accessibility – As our client, we will be available when you need us. You will have direct access by phone, text, and email to all of the attorneys on your defense team
- Team Approach – By taking a team approach, we ensure that all clients receive the full benefit of our attorneys’ centuries of combined experience in federal health care fraud matters.
Contact Us to Discuss Your Medicare Fraud Investigation in Wisconsin
To discuss your defense strategy with members of Oberheiden, P.C.’s federal health care fraud defense team, please contact us promptly to schedule a confidential initial case assessment. You can reach us 24/7, so call 888-519-4897 or send us a message online now.