Knowledgeable Medicare Fraud Defense Attorneys

Many of our clients are shocked to find out that they are accused of Medicare Fraud. Medicare Fraud is a generic term and it describes the knowing submission of false claims to a governmental health care program.

Medicare Fraud Explained

It is important to understand that not every mistake means the end of your business. Anyone working in the health care industry knows how confusing and evolving the rules are. What was an appropriate billing code yesterday may constitute health care fraud tomorrow. But it does not even take a mistake to be on the government’s radar. A new government policy allows CMS and other agencies to screen providers simply based on raw data and the quantity of their federal business. In other words, the mere fact that your business is booming may make you a candidate for a Medicare audit. The following statutes are the most common bases for Medicare investigations.

False Claims Act

The federal False Claims Act applies to anyone who knowingly submits false statements or makes misrepresentations of facts to obtain a federal health care payment to which the health care provider is not entitled. A common violation is the submission of a reimbursement request that uses the wrong billing code. The federal False Claims Act can trigger a civil investigation (see, 31 U.S.C. Sect. 3729-3733) but also authorizes the government to seek criminal prosecution (see, 18 U.S.C. Sect. 287). Attorneys familiar with the False Claims Act will often be able to avoid criminal charges and to conclude the investigation without court intervention.

Stark Law (Self-Referrals)

Health care providers are prohibited from making certain referrals to an entity in which the referring physician or the physician’s immediate family has an ownership or financial interest. See, 42 U.S.C. Sect. 1395nn. When planning defenses, qualified medicare fraud attorneys will often be able to argue that either a safe harbor applies that renders the self-referrals lawful or that the referral falls outside so-called designated health services and is therefore not sanctionable, see 42 C.F.R. Sect. 1001.952.

Anti-Kickback Statute

The federal Anti-Kickback Statute prohibits the knowingly soliciting, paying, and/or accepting any form of remuneration to induce or reward referrals for items or services reimbursed by federal health care programs. Defense attorneys familiar with government negotiations are often able to convince the government that so-called safe-harbors apply that would render the alleged kickback in question lawful. See, 42 U.S.C. 1320A-7b(b).

Health Care Fraud & Conspiracy

In cases in which the government decides to go the criminal route and charge individuals with criminal health care fraud, the government typically applies the general health care fraud statute or, if there are several people involved, a conspiracy to commit health care fraud. 18 U.S.C. Sect. 1347 states that whoever knowingly or willfully executes or attempts to execute a scheme to defraud any health care benefit program or to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services, shall be fined or imprisoned of up to 10 years, or both.

Industries Investigated

Health care investigations are on the rise. While some industries are under stricter scrutiny than others, the likelihood that your practice may one day be audited increases proportionately to the government’s constant expansion of its law enforcement actions. Underlying health care fraud statutes apply to any individual or business that directly or indirectly contracts with and is paid for services by the United States government. These services can be for Medicare, Medicaid, Tricare, or Department of Labor patients, to name just a few. Particularly exposed are providers and businesses in the following areas:

  • Hospice Care Centers
  • Home Health Centers
  • Toxicology Laboratories
  • Pharmacy Industry
  • Hospitals & Surgery Centers
  • Physician Owned Entities
  • Physicians, Nurses, Staff
  • Psychologists, Psychiatrists
  • Social Workers
  • Medical Device Companies & DME
  • Marketing Groups
  • Health Care Executives

What Are the Penalties?

The Department for Health and Human Services (HHS), the Office of Inspector General (OIG), the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), Medicaid Fraud Control Units (MFCUs), and State Medicaid Agencies in cooperation with the Health Care Fraud Prevention and Enforcement Action Team (HEAT), and the Centers for Medicare and Medicaid Services (CMS) are in charge of health care investigations. Health care cases can be prosecuted in one of two ways.

Criminal Charges:

In more severe cases, investigations may focus on criminal charges of individuals responsible for alleged fraud. In criminal health care fraud cases, the government will indict business owners and executives after seizing their bank accounts and assets and raiding their practices and homes. Because criminal investigations substantially infringe and interfere with constitutional rights, the government must first convince an impartial jury that incarceration and imprisonment are justified. Ultimately, criminal health care cases are decided by a U.S. District Court that takes into consideration the arguments and defenses of the accused as well as the position of the government. Charges in federal criminal health care cases are up to 10 years incarceration per count.

Civil Liability:

Investigations may also end with civil liability. In such a case, targets may become responsible for recoupment requests, non-payment of future claims, civil fines of up to $ 11,000 per false claim, exclusion from federal health care programs, treble damages, and fees payable to the attorneys of the U.S. government. Civil liabilities are mostly imposed on companies, but can extend to responsible individuals (CEO, CFO etc.) behind a company. It is important to note that liability does not require a specific intent to violate the law; in fact, the government does not even need to prove actual knowledge of the wrongfulness of the transaction.

Our Medicare Fraud Results

  • Successful Medicare Fraud Defense of Nationally Operating Toxicology Laboratory against an Investigation by the Department of Justice and the U.S. Attorney’s Office.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of a Health Care Marketing Company against an Investigation by the Office of Inspector General and the Department of Health and Human Services.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of Health Care Provider against an Investigation by the Federal Bureau of Investigation, the Department of Health and Human Services, and the Office of Inspector General.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of a Health Care Provider against an Investigation by the Federal Bureau of Investigation, the Department of Health and Human Services, and the Office of Inspector General.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of a Physician against an Investigation by the Office of Inspector General.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of a Health Care Provider against an Investigation by the Department of Justice.
    Result: No civil or criminal liability, case dismissed.
  • Successful Medicare Fraud Defense of a Health Care Provider against an Investigation by the Office of Inspector General and the Department of Health and Human Services.
    Result: No civil or criminal liability, case dismissed.

Contact our offices today to schedule a free consultation to discuss your case.