Defense Lawyers for Health Care Providers Facing Billing Fraud Investigations

As a health care provider that bills Medicare for services, medications, and durable medical equipment (DME) supplied to patients, finding out that you are under investigation can be a daunting experience. All of a sudden, your business or practice could be at risk, and you could be facing insurmountable personal financial liability as well as the potential for spending time behind bars.

Fortunately, most billing fraud investigations do not lead to criminal convictions. Most investigations targeting legitimate health care providers are civil in nature; and, when providers have experienced legal representation, many of them are able to avoid charges entirely. But, in order to mitigate your risk of facing civil or criminal penalties, you need to take a proactive approach to your defense, and this starts with putting a team of experienced health care fraud defense attorneys on your side.

Oberheiden & McMurrey, LLP’s, Health Care Fraud Defense Team

At Oberheiden & McMurrey, LLP, we offer significant experience and results in Medicare billing fraud defense. Our team of attorneys – which includes former federal health care fraud prosecutors with the U.S. Department of Justice (DOJ) – represents health care providers around the country. We have established a significant record of resolving our clients’ investigations without civil or criminal liability.  This includes resolving billing fraud investigations prior to trial and, in many cases, prior to the issuance of charges. We work cases involving the Centers for Medicare and Medicaid Services (CMS), the Department of Health and Human Services (HHS), Office of Inspector General (OIG), the Medicare Fraud Strike Force, and other federal authorities.

As a result of our substantial experience as both defense attorneys and federal prosecutors, we are able to approach our clients’ investigations from the inside out.  We know the government’s tactics, we know the laws that prosecutors use to pursue charges against providers and we know what it takes to secure an amicable resolution.  In every case, we seek to make contact with the government agents and prosecutors involved right away so that we can gain a clear understanding of the circumstances at hand, and craft a custom-tailored defense strategy focused on closing the investigation as quickly as possible.

“Our experience with [Oberheiden & McMurrey, LLP] was overwhelmingly positive! We recently brought a range of complex legal issues to the table, which they responded to with a systematic, prudent approach. Throughout our work together, Oberheiden & McMurrey, LLP, served as an invaluable source of practical guidance and legal leadership. We would recommend them highly and without reservation to anyone.” – Firm Client

“It is very clear . . . that Nick Oberheiden has a deep understanding of health law issues. Nick has been instrumental in managing and resolving many difficult legal matters [and he] is always relentlessly focused on the critical issues that matter most. . . I would not hesitate in recommending Nick for the most important of legal matters.” – Firm Client

Facing Allegations of Medicare Billing Fraud

As a subset of Medicare fraud, billing fraud is itself a broad category of offenses that implicate a number of different federal statutes. Physicians, pharmacists, facility owners, other professionals, and even shareholders can face penalties for billing fraud.  They can be charged under the False Claims Act, the Anti-Kickback Statute, the Stark Law, and various other sources of federal authority. From “false and fraudulent claims” to illegal physician “self-referrals,” the following Medicare billing issues can all lead to charges that carry potentially substantial civil liability and criminal penalties.

  • Double-Billing – Billing Medicare multiple times for the same service, medication, or DME; or, billing Medicare while also billing a private insurer or another health care benefit program.
  • Kickbacks and Referral Fees – Billing Medicare for reimbursement of funds that were used to pay a kickback or referral fee (or provide some other form of remuneration) in exchange for a patient referral.
  • Medically-Unnecessary Services – Billing for services, medications, or equipment that are not medically-necessary to treat the patient, including unnecessary tests, procedures, and DME.
  • Non-Allowable Costs – Billing for operational or other costs that are not eligible for Medicare reimbursement.
  • Non-Compliance with Conditions – Billing for services, medications, or equipment in a manner that is non-compliant with the conditions for Medicare eligibility.
  • Services, Medications, and Equipment Not Provided – Billing for services, medications, or equipment not actually provided to a patient (commonly referred to as “phantom billing”).
  • Unbundling Services – Billing for services at their individual rates when they should be bundled under the Medicare billing guidelines.
  • Unlicensed and Excluded Service Providers – Billing Medicare for services performed by an unlicensed provider or by a provider (including a third-party provider) that has been excluded from Medicare participation.
  • Up-Coding – Billing for services that are reimbursed at a higher rate than the rate applicable to the services that were actually performed.
  • Wrong Billing Code – Using an incorrect billing code when submitting an invoice to Medicare.

Medicare Fraud Enforcement: Our Attorneys Answer Providers’ Questions about Billing Fraud

Q: What types of health care providers are most likely to face billing fraud investigations?

In recent years, federal authorities have focused their enforcement efforts on varying sectors of the health care industry, while continuing to monitor the industry as a whole. For example, hospices, home health agencies, and compound pharmacies have all faced enhanced scrutiny and the DOJ is currently placing particular emphasis on targeting providers that prescribe and dispense opioid medications.  At Oberheiden & McMurrey, LLP, we have represented providers including:

  • DME Companies
  • Health Care Business Owners and Executives
  • Home Health Agencies
  • Hospices
  • Hospitals and Other Medical Facilities
  • Marketing Groups
  • Nurses and Staff Members
  • Pharmacies and Compound Pharmacies
  • Physicians and Physician-Owned Entities, and
  • Toxicology Laboratories

Q: What is involved in defending against a Medicare billing fraud investigation?

Health care providers facing Medicare billing fraud investigations can take a number of steps to protect themselves, starting with engaging experienced legal representation. When facing inquiries and accusations from federal agents and prosecutors, you need a defense team that can level the playing field.  Other steps involved in defending against health care fraud investigations involving allegations of billing fraud include:

  • Contacting the federal agents or prosecutors involved to determine the scope and nature of the investigation
  • Conducting an internal assessment to assess the veracity of the government’s allegations
  • Proactively addressing any compliance gaps and possible overpayments
  • Responding to requests for information (including OIG and grand jury subpoenas)
  • Determining the defenses you have available and assessing any potential exposure
  • Working with federal prosecutors to reach a favorable resolution prior to the issuance of charges

Q: Why am I being targeted?

These days, most Medicare billing fraud investigations are the product of one of a few different factors. If your business or practice is being targeted in an investigation, this most likely means that: (i) your Medicare billing data is “abnormal” when compared to other providers, (ii) a CMS audit contractor referred your case to the OIG or DOJ, or (iii) someone filed a qui tam (“whistleblower”) claim with the government.

Q: Can health care provider personnel face personal liability for Medicare billing violations?

Yes. The OIG, DOJ, CMS, and other federal agencies pursue fraud enforcement actions against both companies and individuals. In a civil case, a physician, executive, staff member, board member, or company owner can potentially face crippling financial penalties as well as loss of program eligibility.  Criminal penalties include enormous fines and incarceration. Licensed practitioners can also face suspension or revocation of their license as a result of being targeted in a billing fraud investigation.

Q: What do I need to consider when choosing a Medicare billing fraud defense attorney?

The single most important factor when choosing legal representation for a billing fraud investigation is relevant experience. You need a lawyer (or, preferably, a team of lawyers) with a record of success in health care fraud investigations.  Lawyers who focus on compliance will often lack the experience needed to execute an effective defense strategy, while federal lawyers without a health care background can lack insight needed to deal with the complexities of Medicare billing regulations.  Experience as a former health care prosecutor can also be invaluable to mounting a strategic defense.

Get Started with a Complimentary Case Assessment With Our Trusted Billing Fraud Attorneys

If your business or practice is under investigation, or if you are concerned about possible billing violations committed by your employees, we encourage you to contact Oberheiden & McMurrey, LLP, for a complimentary case assessment. Our lawyers will meet with you to discuss:

  • The current status of your investigation
  • The potential issues involved
  • The potential defenses you may have available
  • Next steps for remedying any systemic deficiencies
  • How to advise your employees regarding the investigation
  • What we can do to close the investigation as quickly as possible

Our headquarters are located in Dallas, and we have locations for meetings by appointment in Baton Rouge, Detroit, New York City, Los Angeles, and San Diego.  Our attorneys also travel to meet with clients nationwide.  To request an appointment, call us 24/7 at (888) 356-4634, or send us your contact information online and we will be in touch as soon as possible.