With decades of experience as health care fraud defense lawyers and prosecutors with the U.S. Department of Justice (DOJ), we have a significant track record of protecting clients in Medicare and Medicaid fraud investigations in Delaware and nationwide.
For health care providers in Delaware, the risk of being targeted in a Medicare or Medicaid fraud investigation is a very real concern. Federal investigators and prosecutors are targeting providers across all health care sectors in Kent, New Castle, and Sussex Counties. Individuals ranging from staff members to physician-owners and executives are at risk for facing criminal prosecution for Medicare and Medicaid fraud.
What is Medicare or Medicaid fraud? Under federal law, any attempt to obtain money from the government that is not properly owed can be classified as fraud. This includes both intentional and inadvertent overbillings to Medicare and Medicaid. Many health care providers are surprised to learn that accidental billing mistakes can be prosecuted as fraud – but the reality is that most health care fraud investigations involve civil allegations based upon honest human errors.
When a “false or fraudulent” overbilling is intentional (or appears to be intentional), federal prosecutors can pursue criminal charges for Medicare or Medicaid fraud. Like civil charges, these criminal charges carry the potential for crippling financial penalties, but they also carry the potential for long-term imprisonment. In cases where prosecutors pursue criminal health care fraud charges along with related charges for offenses such as conspiracy, money laundering, mail fraud, and wire fraud, providers can easily be at risk for spending decades behind bars.
At Oberheiden, P.C., we do not want this to happen to you. We understand that most health care providers do their best to comply with the inordinately complex Medicare and Medicaid billing regulations. We also know that, when overbillings occur, they are most often the result of human error. If your business or practice is being targeted in a federal audit or investigation, we want to help you avoid criminal punishment, and we want to help resolve your case before charges get filed if at all possible.
A Significant Track Record in Medicare and Medicaid Fraud Audits and Investigations
With over 100 years of combined experience, our defense attorneys hold a significant track record in Medicare and Medicaid fraud audits and investigations. We have helped our clients avoid criminal indictments in an overwhelming percent of all federal investigations we have handled as defense attorneys, and to date we have a 100% success rate in preventing audits from leading to license revocation or referral to the U.S. Attorney’s Office for prosecution. We have secured probation when years of prison time were on the table, and we have won dismissal of indictments prior to trial. When we represent Delaware health care providers in Medicare and Medicaid fraud investigations, we take the approach that no solution is out of reach. We constantly evaluate and reevaluate opportunities for obtaining favorable outcomes, and when an opportunity presents itself – we strike aggressively so that our clients can get back to their normal lives.
At Oberheiden, P.C., our track record includes:
1. Keeping Investigations Civil in Nature and Avoiding Federal Charges
While financial penalties are bad, prison time is far worse. We work hard to keep all of our clients’ cases civil in nature. With limited penalties on the table, we whittle away at the prosecution’s case until there is nothing left to prosecute.
2. Dismissing Federal Indictments
Grand jury proceedings lead to indictments, and indictments lead to trials. That is the conventional thinking among most inexperienced health care fraud defense lawyers. But we know better. Rather than viewing an indictment as the starting line for a race to a verdict at trial, we continue to pursue opportunities for resolution before our clients face judgment by a jury of their peers.
3. Securing Favorable Results at Trial
When going to trial presents the best opportunity for a favorable outcome, we build comprehensive trial strategies that raise doubts in the minds of the jury. Whether the government needs to prove its case beyond a reasonable doubt or by a preponderance of the evidence, we tailor our efforts to avoiding unfavorable verdicts in light of the unique facts and circumstances involved.
4. Convincing Judges to Sentence Our Clients to Minimal Penalties
A guilty conviction in a criminal Medicare or Medicaid fraud case can lead to enormous fines and long-term imprisonment. Even when these types of penalties have been on the table, we have been successful in helping clients go home to their families and maintain the ability to practice.
5. Exposing Faulty Audit Practices and Conclusions
Medicare and Medicaid audits routinely result in unjustified demands for recoupment and institution of pre-payment review (which can delay payments on Medicare and Medicaid claims by as much as six months). We are familiar with the types of mistakes that lead to these unjust results, and we have protected numerous health care providers against faulty audit determinations.
What We Do for Medicare and Medicaid Providers in Delaware
With a team of dedicated health care fraud defense lawyers, our firm is notably positioned to represent providers in Medicare and Medicaid fraud matters throughout Delaware and nationwide. We offer well over a century of experience on both sides of matters including:
- Medicare and Medicaid Audits – We represent providers who are being audited by Zone Program Integrity Contractors (ZPICs), Recovery Audit Contractors (RACs), Medicare Administrative Contractors (MACs), Audit Medicaid Integrity Contractors (MICs), and other auditors under the Centers for Medicare and Medicaid Services’ (CMS) “fee-for-service” recovery program.
- Medicare and Medicaid Audit Appeals – If you have already received an unfavorable audit determination, you do not have to accept the consequences. There are five stages of appeals for CMS contractor audits, starting with a request for redetermination and culminating with formal legal proceedings in federal district court.
- OIG Subpoenas – The Department of Health and Human Services Office of Inspector General (OIG) is one of the main government watchdogs involved with prosecuting Medicare and Medicaid fraud. It has the power to issue non-judicial subpoenas (referred to as “OIG subpoenas”), which are often delivered by certified mail. If you have received an OIG subpoena, you need to respond very carefully in order to avoid exposing yourself, your business, or your practice to unnecessary liability.
- Grand Jury Subpoenas – Grand jury subpoenas are very different from OIG subpoenas, but they require the same measured and detail-oriented response. Regardless of whether you are the target of the government’s current investigation, if you make mistakes when dealing with a grand jury subpoena, this could lead to federal charges.
- False Claims Act Investigations – The False Claims Act imposes civil and criminal penalties for health care providers who submit “false and fraudulent” reimbursement requests to Medicare or Medicaid. Civil penalties apply in cases of unintentional billing violations, while intentional billing violations can lead to imprisonment.
- Stark Law Investigations – The Stark Law is a civil statute that prohibits physician “self-referrals” which involve Medicare or Medicaid-reimbursed services, supplies, or equipment. The Stark Law’s general provisions are extremely broad, and defending against fraud allegations under the Stark Law often involves affirmatively demonstrating that a safe harbor or exception applies.
- Anti-Kickback Statute Investigations – The Anti-Kickback Statute prohibits payment of referral fees and other forms of remuneration for referrals involving Medicare and Medicaid-reimbursed services, supplies, and equipment. Unlike the Stark Law, the Anti-Kickback Statute applies to all practitioners and business entities that bill federal health care benefit programs.
- Other Medicare and Medicaid Fraud Investigations – Medicare and Medicaid fraud investigations can involve a variety of other federal statutes as well. In Delaware, state authorities can also pursue providers suspected of engaging in Medicaid fraud. We handle all cases at the state and federal levels, including cases involving non-health-care-specific statutes.
- Civil and Criminal Prosecutions – If it is too late to resolve your case during the government’s investigation, we will pursue an aggressive strategy for resolving your case without civil or criminal liability. Facing charges does not necessarily mean you will be convicted, and we have a long record of success overcoming what appears to be insurmountable allegations of fraud.
Q&A with the Health Care Fraud Defense Lawyers at Oberheiden, P.C.
Q: What is the Delaware Medicaid Fraud Control Unit (MFCU)?
Medicaid Fraud Control Units (MFCUs) are government authorities jointly designated by state and federal law enforcement agencies to prosecute cases of suspected Medicaid fraud. Delaware’s MFCU is housed within the state’s Department of Justice. As stated on its website, “[it] is designed to protect the Delaware residents who receive Medicaid and the taxpayers who support the program. The MFCU has a professional staff of prosecutors, investigators, and auditors who review allegations involving [all forms of Medicaid fraud, including] . . . Civil or Criminal Fraud against the state by healthcare providers who treat Medicaid recipients.”
Q: What types of billing errors can result in liability for Medicare or Medicaid fraud?
In Medicare and Medicaid fraud investigations, agents and investigators are typically looking for any evidence which may suggest that one of these health care benefit programs has been billed improperly. The same goes for ZPIC, RAC, MAC, and MIC audits. Some of the most-common allegations of Medicare and Medicaid fraud include:
- Upcoding – “[W]hen healthcare providers bill Medicaid [or Medicare] for a more expensive treatment or service than the one they actually provided to the patient; or by filling a prescription with a generic drug, while billing for the more expensive name brand version of the medication.”
- Phantom Billing – “[B]illing for goods or services not provided, such as billing for patient visits that never took place or for blood tests when no samples were taken.”
- Billing for Medically-Unnecessary Services, Supplies, and Equipment – “[B]illing for unnecessary services[, supplies, or equipment] can include billing for items that patients do not need at all, such as oxygen concentrators, hospital beds, or wheelchairs.”
- Double-Billing – “[B]illing Medicaid [or Medicare] twice for the same procedure, sometimes by submitting a bill at the beginning of the month and a second bill at the end for the same service.”
- Unbundling – “[S]ubmitting bills for individual procedures as if the service were performed on different days for procedures that the doctor performed during one day as part of one operation.”
- Kickbacks and Referral Fees – “[W]hen medical suppliers, home health agencies, etc., give things of value to other health care providers in exchange for patient referrals.” (quotes are from the Delaware MFCU’s website, although the described billing violations apply equally to Medicare and Medicaid)
Q: What are the civil and criminal penalties for Medicare and Medicaid fraud?
In you are facing a Medicare or Medicaid fraud investigation, the specific penalties for which you are at risk will depend upon a variety of factors, not the least of which are: (i) whether your case is civil or criminal in nature, (ii) the extent of the alleged billing violations, (iii) whether you are being targeted by federal authorities or the Delaware MFCU, and (iv) the specific statute(s) under which prosecutors choose to file charges. Broadly speaking, however, the civil penalties for Medicare and Medicaid fraud can include:
- Fines of approximately $21,500 per violation (as of 2017)
- Treble damages (three times the government’s actual losses)
- Recoupment liability
- Pre-payment review and denial of future claims
- Exclusion from Medicare and Medicaid
In a criminal case, the potential penalties vary by statute, but may include:
- Criminal fines ($250,000 per violation under the False Claims Act and $75,000 per violation under the Anti-Kickback Statute)
- Recoupment liability
- Exclusion from Medicare and Medicaid
- Federal imprisonment (five years per violation under the False Claims Act and the Anti-Kickback Statute)
In addition to these statutory penalties, licensed health care providers can also face disciplinary action. For example, a physician could risk losing his or her license in a proceeding before the Delaware Board of Medical Licensure and Discipline due to alleged improprieties – even if the federal government’s investigation does not ultimately lead to civil or criminal liability.
Meet the Health Care Fraud Defense Team at Oberheiden, P.C.
At Oberheiden, P.C., we put a team on your side, not a single attorney. The attorneys on our health care fraud defense team include seasoned Medicare fraud lawyers and former U.S. Department of Justice (DOJ) prosecutors who have decades of experience in high-profile Medicare and Medicaid fraud investigations. When you choose our firm to represent you, the attorneys fighting to protect you will include:
- Dr. Nick Oberheiden – Dr. Oberheiden is an experienced health care fraud litigator who brings significant in-depth knowledge of the Medicare and Medicaid billing systems.
- Lynette S. Byrd – Ms. Byrd has handled cases as a state prosecutor, federal prosecutor, and health care fraud defense attorney. She brings a wealth of insights and trial experience to defending clients at all stages of the investigative and prosecutorial processes.
Meet all of the health care fraud defense lawyers at Oberheiden, P.C.
Regardless of the current status of your audit or investigation, it is critical that you engage legal counsel immediately. Intervening in the process and proactively asserting a strategic defense is the best way to fend off charges while protecting yourself against the consequences of unnecessary and avoidable mistakes. When you contact us, we will arrange for you to meet with the attorneys on our health care fraud defense team as soon as possible; and if necessary, we can take immediate action to defend you.
Get Started Now with a Free and Confidential Case Assessment
If you would like to speak with the attorneys on our health care fraud defense team, please contact us to arrange a free and confidential case assessment. You can reach us by phone or online 24/7, so call (888) 356-4634 or send us your contact information online now.