If you are being targeted in a Medicare fraud investigation, you are at risk for facing criminal charges. If you have heard this warning, while it is true, it only tells half of the story.
While Medicare fraud investigations can lead to criminal charges, they can also lead to civil charges. Criminal and civil charges differ in a number of fundamental and important ways. Your first priority in any federal healthcare fraud investigation should be to resolve the investigation without charges being filed. But, if this is not an option, then your focus should shift to ensuring that your investigation remains civil in nature.
Why Is a Civil Investigation Preferable to a Criminal Investigation?
For most physicians and other healthcare providers, there is one overarching reason why a criminal investigation should be avoided at all costs: If you are charged criminally, this means that prison time is on the table. While civil and criminal prosecutions can both lead to monetary penalties and Medicare program exclusion, if your case is civil in nature, this means that you do not have to worry about the bailiff walking you out of the courtroom in handcuffs at the end of your trial.
What Determines If My Case Is Civil or Criminal in Nature?
There are a number of factors that can influence whether Department of Justice (DOJ) prosecutors will agree to keep a case civil or seek to file criminal charges. These factors run the gamut from legal standards of guilt and liability to political influence:
1. Burden of Proof
The burden of proof is the standard by which federal prosecutors must prove a defendant’s guilt or liability, and it is a key factor in determining whether prosecutors will pursue civil or criminal charges. In a criminal Medicare fraud case, the burden of proof is “beyond a reasonable doubt.” This means that the government must prove with 99 percent certainty that the defendant is guilty of the crime alleged.
In civil cases, the burden of proof is generally “by a preponderance of the evidence.” This means that it must be more likely than not (or 51 percent certain) that the defendant engaged in fraudulent conduct. If prosecutors do not believe that they can prove the defendant’s guilt beyond a reasonable doubt but they think that they can meet the civil standard for liability, then they may choose to pursue a civil case in order to secure a financial recovery (including fines, recoupments, and treble damages) on behalf of the government.
2. State of Mind
A key factor in criminal Medicare fraud cases is the defendant’s state of mind. Under the majority of federal criminal statutes, proof of intent is required in order to establish criminal culpability. While healthcare providers can face civil liability for unintentional violations of the False Claims Act, Anti-Kickback Statute, healthcare fraud statute, and other laws governing Medicare-reimbursed healthcare practice, prosecutors need evidence of intent in order to obtain a criminal Medicare fraud conviction.
3. Scope of the Fraudulent Operation
While federal prosecutors can and do pursue isolated criminal charges against solo physicians and other small healthcare providers, as a general rule, the larger the scope of a fraudulent operation, the greater the likelihood that the DOJ will pursue criminal charges. The DOJ routinely touts its large-scale Medicare fraud takedowns. And due to the number of defendants and the amount of money involved, these cases often take precedence in the DOJ’s criminal prosecution efforts.
4. Statutory Authority
While laws such as the False Claims Act and Anti-Kickback Statute include provisions for both civil and criminal enforcement, other federal laws are exclusively civil or criminal in nature. For example, the Stark Law (or physician “self-referral” law) does not include provisions for criminal penalties. However, the federal healthcare fraud statute, 18 U.S.C. 1347 is exclusively criminal in nature.
5. Federal Law Enforcement Priorities
In addition to focusing on large-scale takedowns, the DOJ and other federal law enforcement agencies have certain other priorities as well. Currently, for example, the DOJ at the direction of President Donald Trump and Attorney General Jeff Sessions is heavily emphasizing criminal prosecution of healthcare providers suspected of contributing to the nation’s opioid epidemic. Where allegations of Medicare fraud are linked to alleged violations of the Controlled Substances Act (CSA) involving prescription opioid medications, providers must be prepared for the possibility of defending against multiple federal criminal charges.
In more practical terms, leverage is a key factor in federal Medicare fraud investigations as well. Simply put, the more leverage prosecutors think they have, the more likely they are to pursue criminal charges. Conversely, if a provider has the leverage (i.e., if the government’s evidence is minimal, or if the provider has information about a much larger Medicare fraud operation), then the provider may be in a much better position to keep the investigation civil and potentially resolve it without charges being filed.
7. Intervention and Legal Representation
Finally, one of the most important factors in cases where prosecutors have the ability to pursue civil or criminal charges is the provider’s effectiveness in intervening in the investigation and the strength of his or her legal representation. The longer an investigation goes unchecked, the greater the chance that it will lead to a criminal prosecution. However, if you can challenge the government’s theories, investigative practices, and assumptions, and if you can make clear that the DOJ does not have an easy path forward, then you can put yourself in a much stronger position to secure a favorable (and non-criminal) resolution.
Are You Being Targeted in a Medicare Fraud Investigation?
If you are being targeted in a Medicare fraud investigation, federal law defense attorney, Dr. Nick Oberheiden, can help you fight with the goal to avoid criminal prosecution. However, to give yourself the best chance of avoiding criminal charges, it is important that you engage Dr. Oberheiden’s services immediately. To get started with a free and confidential case assessment, call our offices at (888) 356-4634 or tell us how to reach you and Dr. Oberheiden will be in touch as soon as possible.
Dr. Nick Oberheiden has successfully represented healthcare executives and physicians – as well as businesses in the areas of toxicology, pharmacy, home health and hospice centers, DME, hospitals, surgery centers, neuro-monitoring, and blood and DNA testing centers – in healthcare compliance and defense.