Many health care providers first learn that something is possibly wrong with their business operations when they receive correspondence from the government in form of an audit request or a subpoena. In these situations, providers or business owners should discuss their response strategy with experienced fraud defense attorneys to avoid giving the government too little, too much, or the wrong type of information.

Medicare Audits

There are several types of Medicare audits. The different contractors responsible for conducting those audits use various methods but they must all abide by overarching Medicare guidelines for medical review, denials, appeals, and payment recovery, as set forth by the Centers for Medicare and Medicaid Services (CMS). In general, Medicare Administrative Contractors (MACs) and Recovery Audit Contractors (RACs) work to identify improper payments through a process of reviewing and analyzing claims data in addition to medical documentation that is obtained from the member/provider. Many times this involves a statistical sampling of files in order to establish an error rate. Once an error rate has been established, the contractor may identify an overpayment and request reimbursement from the provider.

After an initial audit, contractors may also order a provider to be placed on prepayment or post-payment review. Prepayment review is a standard of medical review where an initial determination will be made related to the claim being submitted. Post-payment review may result in a revised determination of a submitted claim. The main difference between these standards is whether a provider will be initially reimbursed for the claim. Claims that are flagged in prepayment review will result in monies being withheld from the provider while post-payment claims that are flagged may result in a request for recoupment of payment.

Another type of Medicare audit is conducted by the Zone Program Integrity Contractors (ZPICs). ZPIC audits identify and stop potential fraud and refer these cases to the Department of Health and Human Services (HHS) Office of Inspector General (OIG) Office of Investigations (OI). Clearly, this type of audit creates a significant risk of exposure for a provider. Accordingly, administrative audits that do not have a potential for criminality must be addressed swiftly and corrective action must be taken to bring the provider into compliance before the ZPIC gets involved.

If you have received a Medicare audit request, you should contact the Oberheiden Law Group, PLLC. Calls are free and confidential.

OIG Subpoenas

Many health care prosecutions start with a subpoena issued by the Office of Inspector General (OIG). Any business that has received an OIG subpoena either by certified mail or by personal service through agents should be aware that they are now in the middle of a federal investigation for health care fraud. While the subpoena itself does not say whether this investigation is civil or criminal in nature, experienced attorneys are often able to read between the lines and determine the magnitude of the problem and whether a criminal case is pending against the business or its owners.

Three mistakes in responding to OIG subpoenas are common. First, subpoenas companies take the subpoena not seriously enough and a casual, perhaps a delayed or only partial response to the subpoena may quickly turn the case into a large scale federal criminal investigation. Second, subpoenaed businesses may decide to fight the subpoena and seek legal protection to avoid production of records. In that case, the government can enforce the subpoena with the help of a federal court. Third, a business may simply surrender and decide to produce too much information, including incriminating information, that may then become the basis for the government to open a criminal case.

These mistakes are fatal. If the primary goal in dealing with the federal government in a health care audit is to avoid criminal prosecution and the secondary goal is to keep potential civil fines at an absolute minimum, then the best course of action when responding to a federal subpoena should be to engage lawyers that have profound experience with this fine line balancing act between truthful response and protecting your interests. Put differently, you need a sophisticated diplomat that is known and respected as a tough negotiator in government’s circles.

Our firm has defended many OIG subpoenas and we have several former federal prosecutors and experienced defense attorneys on staff. If you have received an OIG Subpoena, you should speak with Dr. Nick Oberheiden to make sure the investigation does not turn into a criminal case. Don’t treat an OIG subpoena casually and do not alter or destroy documents or records connected to the request.

Grand Jury Subpoenas

Federal Grand Juries are important components of the U.S. criminal justice system. The purpose of the grand jury is to determine whether probable cause exists to believe that a person or a company committed a crime. If the jurors are convinced that probable cause for the commission of a crime exists, the grand jury will indict the defendant. Vice-versa, if the conclusion is that no probable cause exists, the grand jury will issue a so-called no-bill and release the targets without prosecution. Notably, in the case of an indictment, the case will become a formal criminal case.

In order to get to that point of reviewing evidence, the government will first issue subpoenas. A subpoena is an order directing a person or company representative to appear and testify at a given time and place or to produce certain documents such as email communications, contracts, and other documents of interest.

Grand Jury subpoenas are powerful tools for federal prosecutors. By law, e.g. pursuant to 18 U.S.C. Sect. 3486, government lawyers have the authority to request documents that the government believes could establish the commission of a crime.

If you have received a Grand Jury Subpoena, an OIG Subpoena, or a target letter from the Department of Justice, you should contact our defense team right away to avoid criminal prosecution. Under no circumstances should you ignore such subpoenas or alter or destroy documents or records connected to the request.

Avoiding Criminal Charges

Receiving a federal subpoena does not necessarily mean that a target will be indicted. Often, a quick and sophisticated response to the subpoena can defeat criminal charges. By contrast, not responding or providing an inadequate response to a grand jury subpoena will almost certainly result in criminal charges.

  • Our Firm has frequently been able to avoid charges in federal health care investigations. Avoiding federal indictments, criminal prosecutions, and incarceration are our absolute top priorities.
  • Our attorneys, many of whom are federal prosecutors themselves, have persuaded the government that not every human error calls for criminal prosecution or civil investigation. We have concluded OIG and Grand Jury investigations against physician syndications, health care businesses, and business owners without criminal prosecutions.
  • Experience shows that the sooner a potential subject or target of a government investigation calls experienced attorneys for help, the higher the chance to avoid actual criminal charges.

Success Stories

  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • OIG Subpoena with Involvement of the Office of Inspector General, the Department of Justice, and the Department of Health and Human ServicesResult: No criminal charges.
  • Grand Jury Subpoena against Our Client as Part of a Federal Criminal Health Care Fraud Investigation.Result: No criminal charges.
  • Grand Jury Subpoena against Our Client as Part of a Federal Criminal Health Care Fraud Investigation.Result: No criminal charges.
  • Grand Jury Subpoena against Our Client as Part of a Federal Criminal Health Care Fraud Investigation.Result: No criminal charges.
  • Grand Jury Subpoena against Our Client as Part of a Federal Criminal Health Care Fraud Investigation.Result: No criminal charges.