Experienced Health Care Fraud Lawyers Defending Hospitals, Doctors and Health Care Providers
Health care fraud has long been, and continues to be, a serious problem in the nation’s health care industry. Now, with passage of the Patient Protection and Affordable Care Act (PPACA) and more government involvement in the delivery of medical care, the government is taking health care fraud more seriously than ever before and stepping up both criminal and civil investigations involving health care providers.
Federal prosecutors have increased the number and vigor of prosecutions against individuals and businesses allegedly engaged in health care fraud and are seeking long prison terms and forfeiture of personal and business assets.
Defending Allegations of Heath care Fraud False Claims, Medicare Fraud and Medicaid Fraud
We understand that most health care providers have the patient’s best interest at heart and would never intentionally defraud the government or heath care insurers. But, given the increase in federal and state regulations, mistakes inevitably happen, and these mistakes can happen on a repetitive and large scale. However, mistakes are not criminal and professionals who make mistakes should not be treated as criminals. Therefore, as professionals ourselves, we give this free advice:
Do Not Talk to Criminal Heath Care Investigators without Counsel
Regardless of whether you believe you have “nothing to hide,” or believe you have not intentionally done anything wrong, do not speak to criminal investigators from OIG, FBI, HHS, DOJ or state regulatory agencies without first consulting a lawyer.
Department of Justice Reports Billions in Recoveries and Hundreds of Criminal Convictions
According to a report issued this past March by the U.S. Justice Department (DOJ), the federal government recovered $2.3 billion in Fiscal Year 2014 related to various healthcare fraud schemes and negotiated settlements. That same year the DOJ opened 924 criminal investigations that resulted in 496 criminal prosecutions being brought involving 805 defendants—of whom, 735 were convicted. During this same period, FBI investigations disrupted the operations of 605 criminal health care fraud organizations and dismantled 142 health care fraud criminal enterprises.
It was these long-standing realities that prompted Congress, through the Health Insurance Portability and Accountability Act of 1996 (HIPPA), to make “health care fraud” a federal crime.
Health Care Fraud
Title 18, Section 1347, United States Code, provides a penalty of up to 10 years in a federal prison for a health care fraud conviction, and a term of 20 years if the fraud results in the injury to a patient. A fraud scheme that results in the death of a patient is punishable by a term of life imprisonment without parole.
According to the U.S. Department of Health and Human Services (DHHS), the typical Medicare fraud is characterized by:
- Knowingly submitting false statements or making misrepresentations of fact to obtain a federal health care payment for which no entitlement would otherwise exist;
- Knowingly soliciting, paying, and/or accepting remuneration to induce or reward references for items or services reimbursed by Federal health care programs; or
- Making prohibited referrals for certain designated health services.
Medicare fraud has become an extensive criminal enterprise. Organized crime groups have even impersonated Medicare providers and suppliers in order to infiltrate the Medicare Program. A couple examples of Medicare fraud include:
- Billing for services not furnished, supplies not provided, or a combination of both. These practices may include falsifying records such as billing Medicare for appointments not kept by the patient or showing the delivery of supplies not received; and
- Billing for services at a higher level of complexity than those actually provided to the patient.
Medicare abuse is a lesser grade of Medicare fraud. The core definition of “abuse” is a direct or indirect practice that results in unnecessary costs to the Medicare Program. The DHHS says “abuse includes any practice that is not consistent with the goals of providing patients with services that are medically necessary, meet professionally recognized standards, and priced fairly.” Examples of Medicare abuse include:
- Billing for services that were not medically necessary,
- Charging excessively for services or supplies, and
- Misusing codes on a claim, such as upcoding or unbundling codes.
Criminal Conviction Not Necessary for Civil Liability and Monetary Penalties
In addition to Section 1347, other Federal laws that govern Medicare fraud and abuse are: False Claims Act (FCA); Anti-Kickback Statute (AKS); Physician Self-Referral Law (Stark Law); and Social Security Act. These laws set forth the criminal and/or civil penalties the government can impose upon either individuals or entities for Medicare fraud and abuse in the Medicare Program, including Parts C and D. An important note here is that in order to attach civil liability, the government does not have to prove actual knowledge or a specific intent to violate the law in question against the individual or entity.
Federal Heath Care Fraud
Section 1347 prohibits the knowing and willful execution or attempted execution of a scheme or artifice in connection with the delivery of or payment for health care benefits, items, or services in order to:
- Defraud any health care benefit program; or
- Obtain (by means of false or fraudulent pretenses, representations, or promises) any of the money or property owned by, or under the custody of or control of, any health care benefit program.
Federal False Claims Act and Heavy Monetary Penalties
The False Claims Act penalizes false claims for payment made to the government. In the health care industry, this typically means submitting claims that involve overcharging or selling substandard goods or services, e.g., a physician or other provider submits claims to Medicare for a higher level of service than actually provided. The FCA imposes civil penalties that can include fines ranging from $5,500 to $11,000 per false claim, and up to three times the amount of damages incurred by the government as the result of false claims.
Medical Fraud Whistle Blower
The False Claims Act also contains a whistle-blower provision that allows individuals to file a complaint on the Government’s behalf against an entity that has engaged in False Claim Act violations. The whistle blower is then entitled to 15-25 percent of the recovery obtained by the government. Obviously, this creates a huge financial incentive for the individual making the allegations and should be an area for investigation as to potential bias or bad motive.
Anti-Kick Back Statute
What is the Anti-Kickback Statute? The Anti-Kickback Statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any direct or indirect remuneration to induce or reward referral of items or services which are reimbursed by the Federal health care program, e.g., a provider receives cash or below fair market value rent for medical offices in exchange for referrals. Violations of the AKS call for a term of imprisonment of up to five years in prison per violation. In addition to criminal fines and imprisonment, the AKS can also result in civil penalties three times the amount of the kickback.
The Stark Law
What is the Stark Law? The Stark Law prohibits a physician from making a referral for specific health services to an entity in which the physician or any member of his or her immediate family has an ownership or investment interest in; or with which the physician has a compensation arrangement outside recognized exceptions to this conduct. For example, when a provider refers a beneficiary for a specific health service to a business in which the physician has an investment interest. The range of penalties for violations of this law include fines of three times the amounts claimed, repayment of claims, and potential exclusion in all Federal health care programs.
Exclusion and Administrative Sanctions
In addition to these criminal and civil sanctions that can be brought by law enforcement, the Medicare Program itself has administrative sanctions applicable to certain kinds of fraud and abuse.
Under the Exclusion Statute, the Office of Inspector General (OIG) must exclude from participation in all Federal health care programs providers and suppliers who are convicted of: Medicare fraud; patient abuse or neglect; felony convictions related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service; or felony conviction for unlawful manufacture, distribution, prescription, or dispensing of controlled substances.
The above list is not exclusive; other grounds may be invoked by the OIG for exclusion. Generally, excluded providers are barred from participation in health care programs for a designated period during which period they may not bill such Federal health care programs like Medicare, Medicaid, or State Children’s Health Insurance Program for services ordered or performed. When the exclusion period is over, the provider may seek reinstatement, but reinstatement is not automatic.
Heath Care Fraud and Prevention Team
In 2009, the DOJ and DHHS joined together to create the Health Care Fraud Prevention & Enforcement Action Team (HEAT) to demonstrate a Cabinet level determination to prevent and prosecute health care fraud.
HEAT has created Medicare Strike Force Teams to operate across the country to detect, disrupt, and prosecute Medicare-related fraud cases. This goal is accomplished by law enforcement utilizing advanced data analysis to pinpoint health care fraud “hot spots,” such as here in Houston, Harris County, Texas, where unusual high billing levels indicate recurring fraud. Besides Houston, eight other areas include: Miami, Los Angeles, Detroit, Dallas, Chicago, Tampa, Brooklyn, and Southern Louisiana. Strike Force efforts in these areas in Fiscal Year 2014 produced:
- 165 indictments, informations, complaints involving charges filed against 153 defendants, all of whom collectively billed the Medicare Program for approximately $830 million;
- 304 guilty plea were negotiated, and 38 cases were prosecuted before juries resulting in 34 guilty verdicts; and
- 248 defendants received prison terms averaging more than 30 months.
Heath Care Fraud Lawyers Defending Hospitals, Doctors and Heath Care Providers
Health care related fraud charges are definitely serious. If you or a family member find yourself under Federal investigation or indictment for a health care violation, you need an experienced health care attorney with the necessary resources and skills to defend you or the family member. We have experience representing doctors and health care providers during criminal investigations and the criminal prosecutions that can follow. We also represent doctors and other health care professionals before licensing boards. We are proud to represent our health care providers and are dedicated to providing both the skills and resources necessary to provide the most effective representation possible in order to protect your business, professional licenses and, most importantly, your freedom.