How ZPIC Audits Can Result in Government Investigations
Health Care Fraud Defense Lawyers Discuss ZPIC Audits Leading to Government Investigations
Former Medicare Prosecutors & Defense Counsel
The Oberheiden, P.C. advises clients from across the country with ZPIC audits, OESSA forms, and hospice and home health certifications. Our team of former federal healthcare prosecutors, many of which previously held positions involving oversight of ZPIC audits and related issues, offer clients a wealth of government and private practice experience when it comes to avoiding and defending civil and criminal healthcare investigations, and ZPIC audits in particular.
Must Know Information
ZPIC Audits lead to government investigations when auditors find the suspected fraud egregious enough that it warrants government investigation for purposes of determining civil or criminal liability, or both. Therefore, the institution of a government investigation after a ZPIC Audit is the most serious and problematic result of the audit. Although the decision of referring a provider for further government investigations depends greatly on the substance of what is discovered in the ZPIC audit, there is also a great deal of discretion that resides with the auditor. Therefore, providers should maintain a forthright and cooperative approach in all of its dealings with the auditor. There are a two different ways that a ZPIC Audit can lead to additional government investigation.
Referral to OIG & Other Law Enforcement Agencies
One of ZPIC’s primary obligations is to refer verified allegations of fraud against a provider to the OIG for consideration of civil or criminal prosecution. In fact, ZPIC auditors are contractually obligated to initially refer their cases of suspected fraud to HHS OIG. They may, however, also refer such cases to other law enforcement agencies. For example, there is a memorandum of understanding (MOU) that permits ZPIC auditors to refer cases simultaneously to HHS OIG and the FBI. The same memorandum also allows HHS OIG to act upon the referral and determine whether or not to accept or decline the case before the FBI takes action.
Another agency to which ZPIC auditors can refer suspected fraud cases is a Medicaid Fraud Control Unit (MFCU) or any other state agency with authority to investigate the provider type undergoing the ZPIC Audit. Providers should be aware that law enforcement, at times, has adopted the belief that if a provider is defrauding one government program, they are most likely defrauding multiple government programs. As such, it is not uncommon for a ZPIC referral to be accepted and worked, in partnership, by HHS OIG, FBI, and MFCU.
Referral to the U.S. Attorney’s Office as a False Claims Act claim
In instances of severe misconduct, ZPIC auditors may refer a provider’s case to the U.S. Attorney’s Office to be prosecuted for violating the False Claims Act. The False Claims Act is one of the government’s strongest tools in preventing and prosecuting fraud committed against the government. Because healthcare providers frequently submit claims for payment by federal programs such as Medicare, such providers are often the subject of False Claims Act litigation.
Under The False Claims Act (18 U.S.C. § 287), the government must establish that the defendant: (1) made or presented a false, fictitious, or fraudulent claim to a department of the United States; (2) knew such claim was false, fictitious or fraudulent; and (3) did so with the specific intent to violate the law or with a consciousness that what he was doing was wrong. Case law reveals that specific intent to defraud is not required. When a ZPIC auditor has a qualified reason to believe that a violation of the FCA has occurred, it may refer the case as such. Because of the extensive and intrusive nature of a ZPIC Audit, the U.S. Attorney’s Office, and DOJ as a whole, take the ZPIC’s recommendation very seriously.
Generally, FCA claims against providers are prosecuted by the Civil Division of the applicable jurisdiction of the U.S. Attorney’s Office. Therefore, the penalty after litigation is generally a monetary civil penalty, which has a statutory limit amount. For the most up to date information on the limits of the monetary penalty, providers should consult an attorney actively working in the field.
We Can Help You
The attorneys of Oberheiden, P.C. have handled a great number of ZPIC audits and have assisted clients across the United States in avoiding referral for government investigation. Clients from across the country rely on our skillset and our advice.
Call us today and speak to one of our experienced attorneys directly. We are available to discuss your situation in a free and confidential call, including on weekends.
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