Medicare and Medicaid providers in Oklahoma are at risk for being targeted in audits and investigations. If your business or practice is being targeted, hiring an experienced legal team is the best way to avoid unnecessary consequences and mitigate your chances of facing a criminal trial.
For health care providers in Oklahoma, the chances of being targeted in a Medicare or Medicaid fraud investigation are higher than ever. After an Oklahoma-licensed physician agreed to a highly-publicized $580,000 Medicare fraud settlement last year, prosecutors at the state and federal levels have continued to aggressively pursue cases against all types of providers suspected of defrauding Medicare, Medicaid, and other government health care benefit programs.
Audits continue to be a significant concern for health care providers in Oklahoma and other states as well. Under the Centers for Medicare and Medicaid Services? (CMS) “fee-for-service” audit recovery program, private auditors working with CMS have a financial incentive to uncover and report improper Medicare and Medicaid billings. They will go to great lengths in order to do so ? including requesting inordinate numbers of billing records and disrupting a provider?s entire practice. And worse yet is the fact that after all of this intrusion, they often reach misguided conclusions. Whether due to use of flawed auditing methodologies, reliance on outdated Medicare or Medicaid billing regulations, or other factors, these mistakes can have drastic consequences for providers ? and overcoming a faulty audit determination often requires going through multiple levels of appeals.
If your business or practice is being targeted in a Medicare or Medicaid audit or investigation, it is imperative that you seek experienced legal representation promptly. Providers can impact the outcome of the process ? often significantly so ? and taking a proactive approach is the best way to prevent unwarranted intrusions and penalties. If at all possible, you want to favorably resolve your investigation without charges being filed, or close your audit without a determination of liability. While it is certainly possible to fight fraud charges or file a successful audit appeal ? these should be considered means of last resort, not first lines of defense.
Experienced Health Care Fraud Defense Lawyers with a National Reach Practice
At Oberheiden, P.C., we provide nationwide legal representation for health care providers facing Medicare and Medicaid audits and investigations. With offices in the South and Midwest (including our main office in Dallas, Texas), we routinely represent providers in Oklahoma. With in-depth knowledge of the Medicare and Medicaid systems, and with clients including physician-owned practices, pharmacies, hospitals, clinics, laboratories, surgery centers, hospice centers, durable medical equipment (DME) companies, and many others ? we have the specific knowledge and experience required to defend you and your business in your audit or investigation.
When you engage our firm, you will be represented by the attorneys on our health care fraud defense team. Unlike other firms, we do not assign individual attorneys to handle client matters. We take a team approach to every case we handle, which means that you will have benefit of working with:
- Dr. Nick Oberheiden, highly experienced in the area of health care fraud defense.
- Lynette S. Byrd, a former DOJ and state prosecutor with particular experience in health care fraud investigations and prosecutions.
Meet your health care fraud defense lawyers at Oberheiden, P.C..
Representation for Medicare and Medicaid Fraud Matters in Oklahoma
As former prosecutors with the DOJ and dedicated health care fraud defense lawyers, our team brings a significant level of experience and insight to representing Oklahoma health care providers in Medicare and Medicaid fraud matters. From the earliest stages of audits and investigations through the end of the federal appeals process, the attorneys at Oberheiden, P.C. bring over a century of experience to helping providers fight to avoid unjust and unnecessary consequences.
We routinely represent health care businesses and practices as well as physicians, pharmacists, company executives, facility administrators, and others in a wide variety of legal matters.
Medicare and Medicaid Audits
Medicare and Medicaid audits are conducted by private contractors working with the Centers for Medicare and Medicaid Services (CMS) under CMS?s “fee-for-service” audit recovery program. During the audit process, these contractors have broad authority to demand, inspect, and review a provider?s books and records. They can then render decisions (or “determinations”) based upon their own interpretations of the provider?s program billings and the Medicare and Medicaid billing guidelines.
Unfortunately, these determinations are often misguided. From applying regulations that were not in place at the time services were rendered to using flawed auditing methodologies, CMS?s audit contractors routinely make mistakes that result in severe negative consequences for health care providers. To avoid these consequences, providers must take a proactive approach to participating in the audit process, and this starts with seeking experienced legal representation immediately upon learning that an audit is underway.
Medicare and Medicaid Audit Appeals
Once a Zone Program Integrity Contractor (ZPIC), Recovery Audit Contractors (RAC), Medicare Administrative Contractor (MAC), or Audit Medicaid Integrity Contractor (MIC) issues a determination, providers only have a limited amount of time to file an appeal. For providers facing substantial recoupment demands, payment denials, pre-payment review for future claims, and potential referral to CMS or the DOJ for federal prosecution, filing a timely appeal can be essential.
There are five stages in the appeals process, the first of which is known as a Request for Redetermination. If you received an unfavorable determination from the ZPIC assigned to Oklahoma, you have 120 days to file your request with the appropriate MAC. However, you must file within 30 days in order to avoid immediate recoupment liability. If your Request for Redetermination is unsuccessful, the subsequent stages of appeal are:
- Request for Reconsideration
- Administrative Appeal with the Office of Medicare Hearings and Appeals (OMHA)
- Administrative Appeal with the Medicare Appeals Council
- Civil Appeal in Federal District Court
OIG and Grand Jury Subpoenas
In Medicare and Medicaid fraud investigations, authorities will frequently use OIG and grand jury subpoenas to compel targets and witnesses to disclose information that they can use to pursue charges. Although OIG and grand jury subpoenas are very different, they can ultimately lead to the same consequences (i.e., federal charges and the potential for criminal sentencing). Therefore, providers must take both types of subpoenas extremely seriously.
The Office of Inspector General (OIG) is the investigative and law enforcement arm of the U.S. Department of Health and Human Services (DHHS). During the investigative process, it has the power to issue administrative subpoenas (commonly referred to as “OIG subpoenas”) which require disclosure of information about a provider?s program billings. The OIG can issue these subpoenas without the need to obtain court approval, and they are almost always fully-enforceable. In other words, once a provider receives an OIG subpoena, it must generally be prepared to timely submit a compliant response.
A grand jury subpoena is a court-issued document which compels individuals to testify and/or produce documents as part of the indictment process. Once presented with the information obtained through the courts? subpoena power, the grand jurors will determine whether there is “probable cause” to pursue criminal charges against the target of the government?s investigation. Any provider who has received a grand jury subpoena in connection with a Medicare or Medicaid fraud investigation should speak with an attorney promptly to begin formulating an appropriate response.
False Claims Act Investigations
The False Claims Act (FCA) is a federal statute that imposes civil and criminal penalties for the submission of “false and fraudulent” claims for government reimbursement. The Oklahoma Medicaid False Claims Act serves a similar purpose at the state level; however, unlike the Oklahoma statute, the federal FCA is not limited strictly to Medicaid fraud enforcement.
Most federal Medicare and Medicaid fraud investigations involve allegations under the False Claims Act. The FCA applies to all forms of government benefit program fraud, with some of the most-common allegations including:
- Billing for medically-unnecessary services, supplies, and equipment
- Billing for services not provided (known as “phantom billing”)
- Unbundling, upcoding, and other forms of coding fraud
- Payment and receipt of kickbacks and referral fees
- Pharmaceutical fraud (including compound pharmacy fraud)
- Physician certification fraud involving home health and hospice care services
In civil cases under the False Claims Act, providers can face penalties including fines, recoupments, treble damages, and loss of Medicare and Medicaid eligibility (program exclusion). Criminal defendants can face similar financial penalties as well as the potential for five years of federal imprisonment for each individual offense.
Stark Law and Anti-Kickback Statute Investigations
In addition to constituting violations of the False Claims Act, paying and receiving kickbacks and referral fees can also be prosecuted as violations of the Stark Law and Anti-Kickback Statute. The Stark Law is a federal statute that prohibits certain compensation arrangements in connection with referrals between physicians and entities in which they own an interest or have a financial relationship (commonly referred to as, “physician self-referrals”). The Stark Law imposes civil monetary penalties for providers who engage in illegal payments involving Medicare and Medicaid-reimbursed services, supplies, and equipment. And while it contains broad prohibitions, it also includes several safe harbor provisions that exempt certain types of relationships from civil liability.
The Anti-Kickback Statute similarly targets compensation-centered relationships where payments are made using funds from Medicare and Medicaid. However, while the Stark Law?s reach is limited to physicians and their related entities (and family members), the Anti-Kickback Statute applies to all health care providers. In addition, the Anti-Kickback Statute includes provisions for both civil and criminal penalties, including up to five years of incarceration for each individual violation.
Other Medicare and Medicaid Fraud Investigations
In many cases, the nature of an investigation conducted by the DOJ, CMS, OIG, Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), or other law enforcement agency will not be clear. Although allegations of False Claims Act, Stark Law, and Anti-Kickback Statute violations are most common, investigators and prosecutors routinely pursue charges under a broad range of other statutes as well. This includes not only health care-specific statutes at the state and federal level, but also general criminal statutes such as those that impose substantial fines and prison time for conspiracy, money laundering, mail fraud, wire fraud, and other offenses.
With our background as state and federal prosecutors, we have the experience required to effectively defend health care providers in Oklahoma against all types of charges in conjunction with Medicare and Medicaid fraud investigations. Once you engage our health care fraud defense team to represent you, we will work quickly to discern the nature of the government?s investigation, and we will execute a comprehensive defense strategy focused on challenging each of the specific allegations against you.
Civil and Criminal Health Care Fraud Prosecutions
When facing a Medicare or Medicaid fraud investigation, the best-case scenario is to resolve the investigation without a criminal indictment and without civil charges being filed. But, in some circumstances, this outcome simply will not be possible. Government attorneys have a duty to pursue cases they believe they can prosecute in good faith; and, if the evidence appears to be stacked against you, your best (and perhaps only) option may be to present your defenses at trial.
When our clients get us involved early enough, we are typically successful in helping them avoid charges. In fact, we have resolved every single False Claims Act investigation we have handled with no civil or criminal liability, and we have avoided criminal indictments in approximately 94 percent of all federal investigations we have handled. But, we also have decades of litigation experience, and our attorneys have handled thousands of trials. If you have no choice but to defend yourself in court, you can trust our health care fraud defense team to help you fight for the best possible outcome.
Medicare and Medicaid Fraud in Oklahoma: Answers to FAQs
Q: Why is my health care business or practice being contacted by a company called CGS Administrators, Novitas, or Palmetto GBA?
CGS Administrators, Novitas, and Palmetto GBA are three of the CMS audit contractors that are currently assigned to Oklahoma. CGS Administrators audits DME companies, Novitas audits providers that participate in Medicare Parts A and B, and Palmetto GBS audits home health and hospice providers. If you have been contacted by one of these companies, an audit may already be underway (using the data available through the Medicare billing system), and you should contact an attorney promptly so that you can try to prevent an unjust and unfavorable audit determination.
Q: What is the Oklahoma Medicaid Fraud Control Unit (MFCU)?
The Oklahoma Medicaid Fraud Control Unit (MFCU) is the division of the Oklahoma Attorney General?s Office that is primarily responsible for targeting in-state providers suspected of engaging in Medicaid fraud. As stated on the MFCU?s website:
“The Medicaid Fraud Control Unit (MFCU) utilizes a team-based approach to identify, investigate and prosecute Medicaid fraud, abuse, neglect and exploitation of patients committed by health care providers, health care facilities and other Medicaid providers . . . [and] makes recommendations to the Office of the Inspector General of the U.S. Department of Health and Human Services to exclude individuals or entities from participating in federally-funded programs.”
The Oklahoma MFCU has jurisdiction to pursue criminal charges against providers suspected of defrauding the state?s Medicaid program. Like the federal agencies tasked with combatting benefit program fraud and abuse, it aggressively pursues charges against both fraud artists and legitimate providers suspected of submitting improper claims.
Q: What are the risks when you are targeted in a Medicare or Medicaid fraud audit or investigation?
For most legitimate health care providers, the risks of facing audits and investigations are financial penalties and program exclusion. Providers can face these penalties in civil cases even if they have not intentionally overbilled Medicare or Medicaid. However, if state or federal authorities find evidence of intent, they can pursue criminal charges ? which can potentially lead to years ?(if not decades) behind bars.
Schedule a Confidential Case Assessment at Oberheiden, P.C.
If you would like more information about our health care fraud defense practice, please contact us to arrange a confidential initial case assessment. You can reach us 24/7, so call (888) 356-4634 or request an appointment online now.