Doctor Defense – Healthcare Fraud

When you think of a doctor who is in need of a lawyer, your mind probably jumps immediately to a civil attorney and someone well-versed in malpractice defense. But doctors are very often in need of a good criminal defense attorney. While sometimes these crimes can be for battery or murder, these are far less common than suits involving insurance or Medicaid fraud.

Health care fraud is a crime, and usually involves a doctor lying when filing a health care claim. Usually, the claim includes unnecessary treatments, medications or double or triple charges for the services rendered. This is so the insurance overpays, and the excess money goes directly into someone else’s pocket. Doctors are not the only ones who are accused of committing this crime – health care providers, patients and even the insurers themselves have been prosecuted for this behavior.

Given the uncertainty about the healthcare system in this country and increasing costs, state and federal prosecutors are focusing more and more on addressing healthcare fraud. The FBI is usually charged with exposing health care crimes, and are considered a high priority in all 56 of the field offices. Abusing the system is tempting – Medicaid shells out over $415 billion each year, while Medicare closer to $600 billion. Seventeen percent of America’s GDP is spent in total health-care spending, and while it is difficult to precisely know how much of that is fraudulently earned, some estimate up to 10% of the federal Medicare and Medicaid spending is embezzled.

Anyone who has worked in the healthcare industry knows that it is an absolute maze of acronyms, abbreviations and numbers – therefore, mistakes and improper payments, without the intent to defraud, happen. Healthcare fraud is not the same as making a billing error that results in a claim for a treatment not provided. The issue is intent. There are things doctors and other healthcare workers can do to prevent any accusations of fraud being lodged against them based on error: hiring a billing auditor, outsourcing billing to an experienced worker who can dedicate their full attention to precise billing, and keeping a good lawyer on retainer to mitigate any errors do occur, for example.

One of the more difficult crimes to defend is the ‘kickback,’ where a healthcare provider will accept (or offer) payment in exchange for a payment referral when the patient’s claims will be submitted to Medicare or Medicaid. For example, a doctor may be promised $200 for every patient that is sent to a particular specialist or service provider – like a dialysis center – and the center will overcharge for that service, and kick a portion of the surplus back to the doctor as a thank you. These are particularly difficult to defend because the intent is fairly clear, and such behavior is rarely attributable to an error or mistake.

Both state and federal laws address healthcare fraud, with different penalties. Federal law provides civil and criminal penalties. Criminal convictions for healthcare fraud carry heavy penalties, including jail time. Making a false claim or statement regarding a Medicare or Medicaid claim can lead to a stint in prison for up to 5 years. A conviction for federal health care fraud can result in 10 years imprisonment (per offense!), and if there is serious bodily injury against someone as a result of this fraud – such as administering unnecessary treatments – the defendant faces up to 20 years in prison. The death of a prison could lead to life in prison.

There are also hefty fines for organizations involved in fraudulent schemes, as well as the possibility restitution (or being made to repay the fraud) and even probation, not to mention the harm to your reputation if you are accused of engaging in healthcare fraud. Keeping a good attorney on retainer is the best insurance against insurance fraud.

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