Healthcare fraud criminal charges are unique compared to other possible charges a corporation or individual may face. Healthcare fraud lawyers need to have specialized knowledge of the healthcare system, including statues, Medicare guidelines, criminal statues, and more.
Health care fraud lawyers will help prepare the proper defines, which requires the analysis of records along with finding the right experts at every stage of the proceedings. The best defense is a defense starting early. An aggressive investigation at an early stage can prevent or pre-empt formal charges so that you may be able to avoid criminal proceedings.
This simple guide will help you understand healthcare fraud and what to expect.
What is Health Care Fraud?
Healthcare Fraud can be pursued both civilly or criminally. We will be focusing on the criminal charges under 18 U.S.C §1347 and §1349 (Healthcare Fraud and Conspiracy to Commit Healthcare Fraud) for the purposes of this article. While the focus is on the criminal violation, you should also be aware of the possible civil proceedings that are initiated by the Government.
A person or corporation who knowingly and willfully tries or succeeds to scheme and defraud any healthcare benefit program can be convicted of Health Care Fraud. Here are a few examples to help you understand what this type of fraud entails.
- Billing for services that were never provided or were not medically necessary
- Misrepresenting dates of service or provider of service
- Waiving co-payments or deductibles
- Billing for drugs not filled by a pharmacy
- Incorrect reporting (of diagnoses or procedures)
- Medicaid Fraud
- Unlawful prescribing and dispensing of drugs
What’s Involved in a Healthcare Fraud Case?
Before you learn how to defend healthcare fraud charges, it’s important to understand the structure of the case. There are multiple avenues the prosecution may choose to go, but in the Federal setting, Healthcare Fraud allegations typically develop in one of two ways.
1. Referral for Investigation from State, Local, or Regulatory Body
The charges may come as a referral for the investigation. This means that a regulator entity, like a Medicare Audit, conducts a routine prepayment or post-payment audit of a doctor, or health care corporation, and uncovers signs of fraud.
When the regulator body finds evidence of criminal conduct, they refer the case to the Office of Inspector General (OIG) for investigation. The OIG will then choose to either pursue the case civilly or federally, which includes criminal charges. If they pursue criminal charges, the OIG refers the case to the Department of Justice, where, together with the FBI, they conduct a criminal investigation and seek an indictment.
2. OIG or FBI Obtain Information from Cooperating Source
Cooperating sources are used for investigating a web of fraud activity, where a number of companies and physicians are thought to be engaged in a conspiracy to defraud the Government. Cooperating sources provide information to the Government in return for a reduced sentence during their own prosecution.
Qui Tam Suit
A Qui Tam suit is a lawsuit filed by a private individual, also called a relator. Charges that require a healthcare fraud lawyer may also stem from a Qui Tam Suit. If the suit is successful, the relator may earn a percentage of the recovery, which is another powerful incentive to disclose criminal activity.
Qui Tam Suits begin as civil cases, but they often turn into criminal investigations.
As you can see, healthcare investigations are complicated. For this reason, your attorney will need to have knowledge of Medicare Audits and the effects they have on criminal charges.
During an audit, the provider may submit information to the auditor to support the medical necessity of particular services. However, any statement made in defense of the audit may bind them in future criminal proceedings. An admission of any wrongdoing can easily turn into the basis for criminal charges.
Because anything you say during an audit can be used against you later, it’s best to seek a lawyer as soon as possible. This lawyer should also have enough experience in this category to defend the audit without binding the corporation or the practitioner to a defense that may be detrimental.
If the auditor completes the investigation and believes that fraud has been committed, the case will mostly be referred to the OIG.
If the case started with a Qui Tam Suit, there would probably be a civil case filed against the defendant, along with any criminal action. The resolution of criminal action may not necessarily mean the resolution of all claims. Attorneys need to be familiar with Qui Tam litigation when defending fraud charges at both levels.
Why You Need a Compliance Plan
An important aspect of any healthcare defense attorney’s job is to provide evidence of a Compliance Plan, which was initiated before the alleged fraud. Did you know? You could be charged with Healthcare Fraud even if you did not know you were committing fraud? That’s why it’s so important to rely on the advice of your lawyer.
A Compliance Plan detects and disrupts fraudulent activity in your practice or the corporation as a whole. Evidence of a Compliance Plan will then be used to prove that the corporation or practitioner lacked the intent to engage in Healthcare Fraud. A Compliance Plan means preventing allegations of fraud from occurring in the first place.
The OIG requires all practice groups to have a Compliance Plan in place because they are necessary when defending against a fraud investigation.
Negotiations May Prevent Charges
Depending on a number of actors, you may be able to prevent the Government from initiating charges with a Deferred Prosecution Agreement before being formally charged. These agreements are typically done when the Government is more interested in recovering money than prosecution.
At this stage, a defense lawyer will leverage his or her knowledge of Healthcare Law to identify weak points in the case to pre-empt formal charges. These weaknesses may discourage the prosecution.
Search warrants are often the first sign that a corporation is under investigation. This is when it is extremely important to obtain legal help. Before agreeing to an interview, make sure that you will have a lawyer at your side. With search warrants may come arrest warrants, making having a lawyer at this point crucial.
If the Government believes that they have a strong case, the corporation or practitioner may face a trial. Trials are often won or lost based on the experience of the defense lawyers, which is why it’s critical to have them involved from the beginning.
Healthcare Fraud defense is a complex area of law and requires lawyers with experience. If you are facing charges or are interested in a Compliance Plan, call us today.