Whenever we are contacted by potential clients who have been contacted by federal investigators our immediate advice is that they do not speak to investigators until they have consulted an attorney.
Given the federal government’s stated goal to stamp out waste and fraud in our nation’s health care system, our advice remains steady when medical providers are contacted by investigators from the FBI, HHS or private insurance companies. This advice is often hard to digest for professionals who have no prior contact with criminal investigators, but it is vital that it be followed, even if the target believes there is nothing to hide. Following this advice during this important first contact with investigators can mean the difference in whether criminal changes are filed or not. This is the reason agents often use investigative tactics to get an interview before an attorney is consulted.
The latest available date from the U.S. Justice Department shows that during Fiscal Year 2013 the Government prosecuted 377 cases with the lead charge of health care fraud under Sec. 1347 of Title 18, United States Code—the highest number since the statute was enacted. A total of 718 defendants were convicted of health care fraud-related crimes during the year. This falls in line with the announcements from the Department of Justice and FBI making health care fraud a priority necessary to protecting “both our citizens and the overall economy.”
Most U.S. Attorney’s Offices have Health Care Fraud Sections that prosecute these alleged offenses. The prosecutors work closely with the FBI, the Department of Health and Human Services, and the Medicare/Medicaid Fraud Task Force to pursue doctors, other health care professionals, home health care services, ambulance companies, medical equipment suppliers and physical therapy clinics they believe have cheated Medicare or Medicaid programs. These prosecutors not only push for severe prison sentences upon conviction but they also work closely with attorneys in Asset Forfeiture Sections to reclaim assets they believe were attained through the charged health care fraud. For example, in the Fiscal year 2013, the Federal government won or negotiated over $2.6 billion in health care fraud judgments and settlements.
Section 1347 provides that “whoever knowingly and willfully executes, or attempts to execute a scheme or artifice – (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property 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 …”
While there are three elements the Government must prove to secure a health care fraud conviction under Sec. 1347, the primary element requires a showing beyond a reasonable doubt that the defendant knowingly and willfully executed, or attempted to execute a scheme or artifice to defraud a health care benefit program.
Federal law defines a “health care program” as “any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.”
The penalty for violating this subsection is a fine and term of imprisonment not exceeding ten years, unless serious bodily injury results which increases the term of imprisonment to not more than twenty years. If a violation of death results from a violation of this subsection, the imprisonment range increases from any number of years or for life.
Sec. 1347 is a tough, severe law. It punishes the execution or attempted execution of any scheme to defraud a health care program. The crime is complete upon the execution of a scheme meaning that each act may be charged as a separate offense.