The Blanch Law Firm’s Criminal Health Care Fraud Practice is composed of top-rated criminal defense attorneys with experience defending individuals against both federal and state criminal charges and government investigations related to health care fraud and improper billing practices.
What is “Medical Billing Fraud?”
“Medical Billing Fraud” is a broad term that refers to various types of billing malpractice. Due to the wide array of crimes related to medical billing fraud, numerous agencies are involved in the direction and persecution of offenders.
It is important to remember if you are facing these allegations, that an incorrect bill alone does not constitute medical billing fraud.
Element of “Intent”
Medical Billing Fraud refers to the “intentional” and improperly billing of a patient, consumer, or government program for more than they owe. This means that you must possess the intent to commit the fraud in order to be convicted criminally.
Types of Billing Fraud
Billing fraud can include things like:
- Double Billing
- Misrepresenting your credentials
- Billing for patients that do not exist
- Billing for procedures that did not happen
- Billing for procedures that are unnecessary
- Misrepresenting your credentials
- and more.
These billing procedures are explained in more detail throughout this article.
Medical Billing Investigations
“Data Mining” and “Whistleblowers”
A “Medical Billing Fraud” charge starts with detection. Poor record-keeping, data mining red flags and whistleblowers are the most common leads to the start of a medical billing fraud investigation.
“Data Mining”: Many medical billing fraud cases start with “data mining.” This data mining is performed by benefits providers (such as Medicare, Medicaid, and TRICARE.) The system audits claims that have been submitted and sends red flags to officials when irregular billing is detected.
“Whistleblowers”: The other way these crimes are detected are if a whistleblower is involved. Under the False Claims Act a whistleblower can be rewarded a percentage of the fraudulent funds that are recovered. This provision makes anyone in your practice a liability and possible whistleblower.
Individuals that may initiate a Medical Billing Fraud claim against you include office staff or personnel, patients and their families, the government, health care benefits providers, other physicians or pharmacists, and billing companies.
Investigation and Prosecution of Medicare Fraud
These agencies detect, investigate and prosecute medical billing fraud and often work in conjunction with one another:
- The Department of Justice (“DOJ”)
- Office of the Inspector General (“OIG”)
- Centers for Medicare & Medicaid Services (“CMS”)
Proving a Case of Medical Billing Fraud
When you are facing criminal charges, the prosecution must prove each part or element of the crime to reach a conviction.
Most Medical Billing Fraud involve prosecutors determining if:
- “Irregular billing” occurred;
- You knew it occurred; and
- You intended to commit fraud with the occurrence.
There is nothing more critical to your case than understanding the different elements of each crime that you are charged with.
#1. Did “Irregular Billing” Occur?
Was a bill submitted that is irregular to the practice of good medicine? The first element is determining if something odd happened. If the case existed in a vacuum, would you say that the bill produced was unusual? This element is not looking for why it might be odd or how it came to be—it is only the question of the existence of irregular billing.
#2. Did You “Knowingly” Produce an Irregular Bill?
If the prosecution has established the first element and has proven something is seemingly awry in your billing, their job now becomes proving that you knew it happened. There are many hands involved in the work of medical billing, so it is entirely possible that an odd bill would be produced without you knowing it happened. If you did not know it happened, then you cannot have perpetrated a fraud.
#3. Did You “Intend” To Commit Fraud?
The final question may be the most important: Did you engage in irregular billing practices with the intent to take money that was not yours?
The law allows for mistakes or billing errors.
The law does not allow for intentionally submitting an erroneous bill with the intent of being overpaid. This kind of theft is taken very seriously. The prosecution has to prove that an odd invoice happened, you knew it happened, and you let it happen for personal gain. It can be hard to prove what a person’s intentions were, so this element is critical in your defense.
Recent Case of “Medical Billing Fraud”
United States ex rel. Koch v. Gulf Region Radiation Oncology Centers Inc., et al., No. 3:12-cv-00504 (N.D. Fla.)
- Failure to Supervise: The government alleged that between 2007 and 2011, the defendants regularly billed for radiation oncology services that were not supervised by a physician, as required by Medicare, Medicaid and TRICARE. In fact, these services were often performed while the defendant doctors were on vacation or were working at another radiation oncology clinic.
- Billing for Services Not Rendered: The government also alleged that the defendants billed for other treatment services even when patients’ medical records provided no evidence that the services were rendered.
- “Double Billing”: The defendants also allegedly billed twice for the same services and misrepresented the level of a service provided to increase their reimbursement from the federal health care programs.
The Case Was Ultimately Settled
According to the Department of Justice, this case was ultimately settled to resolve allegations that the defendants billed Medicare, Medicaid, and TRICARE (the health the health care program for uniformed service members, retirees and their families worldwide) for radiation oncology services that were not eligible for payment.
Charges Related to “Medical Billing Fraud”
As was noted previously, “Medical Billing Fraud” is an umbrella term used to describe dozens of related charges. Some of the most common related charges include:
The Federal False Claims Act
- Definition: The False Claims Act (31 U.S.C. §§ 3729 to 3733) defines false claims for medical billing fraud as “any person or entity knowingly presenting a fraudulent claim for payment or approval.”
- Explanation: The False Claims Act is the main set of guidelines for general cases of fraud. This statute is used to prosecute individuals who submit fraudulent claims to public and private insurance programs.
- Example: “Phantom Billing Fraud”: A medical billing investigation has been started on you because there are several patients for which you made claims which seem to have not been seen in your office (known as “phantom billing”). To prove this element, the prosecution may produce testimony from the patients.
- Penalties for False Claims Act Violations: Penalties for violating the False Claims Act may include a fine, up to ten years imprisonment, or both. Defendants may face an additional five-year sentence for each false claim made.
“Conspiracy to Commit Fraud”
- Definition: Two or more people who share the intent to carry out a fraud and make an agreement to carry out said fraud.
- Explanation: Essentially, it involved being an active or passive participant in a fraud with more than one person. If you did not act alone in your fraudulent acts, you and the other person (or people) may be charged with conspiracy. The law does not require more than a tenuous relationship to the crime for conspiracy to be added to the charges.
- Example: You direct your nurse to submit claims for you. You know they are improper, and he does not. Both you and the nurse may face charges and accusations of conspiracy. While the nurse may not have actual knowledge of the fraud, and may therefore be able to avoid a conviction, they may still be charged with conspiracy.
- Definition: Altering billing codes in order to receive additional compensation.
- Explanation: “Upcoding” is a common form of billing fraud as it is a huge part of billing. The more complex the code, the more money is invoiced, and the more money is paid. Using undue codes is fraud.
- Example: Your patient comes in to have his blood pressure checked and you bill him for a full physical in order to be paid more. This is fraudulent billing.
Defenses to Medical Billing Fraud
- You Lacked “Knowledge” of Fraud: In the course of the investigation, it is found your bills have been substantially higher than the competitors in your area. Your nurse submits all your claims and has been doing so incorrectly without your knowledge. If you can prove that all of the information came from her computer, and you were entirely unaware of the improprieties, the element of “knowledge” is not proven, and the case may be dismissed.
- You Lacked the “Intent” to Commit Fraud: The prosecution has proven both that you have sent an irregular bill and that you knew that it was sent. However, you can legitimately explain the billing—you maximized possible billing but did not use extraneous coding to do so. Without the intent to carry out the fraud, the case may be dismissed.
In United States ex rel. Koch v. Gulf Region Radiation Oncology Centers Inc., et al., No. 3:12-cv-00504 (N.D. Fla.), fake procedures were allegedly submitted on days the doctors were not actually in the country. In cases like this, prosecutors would look towards the information regarding flights taken and compare them to the expenses on the bill, what patient was listed, and what doctor was alleged to have supervised or performed the treatment.
In order to disprove the “knowledge” and “intent” elements needed for a conviction, defense counsel likely would have tried to qualify the improper billing as a “billing error.” However, this becomes a difficult claim to substantiate if a medical practice is continuously making billing errors and the same mistakes are being repeated.
Valuable Cases to Your Criminal Defense
Case law provides insight into issues caused by “grey areas” that applicable statutes may fail to address. Some applicable case law to “Medical Billing Fraud” includes:
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
In order for a whistleblower to file a fraud case they must establish particular details or the “who, what, when, where and how” of the case. The Iqbul case makes it so that exact minute detail is not needed. This makes it easier to file a case but also easier to defend.
U.S. v. Bollinger Shipyards, Inc. 775 F.3d 255 (5th Cir. 2014)
This case is helpful in defense of medical billing fraud because it established that the facts must be viewed in the best light of the defendant. It proves that the defendant did not have to prove that they were unaware of the wrong billing, just that it reasonably could have been the case.
United States v. Kirk, 584 F.2d 773 (6th Cir. 1978)
This case set the law that these kinds of cases must be handled as an individual with a close review of the facts rather than as a categorical list of right and wrong. This has the potential to help the defense or prosecution in that it opens up a little room for variation rather than an iron clad list.
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We have successfully represented clients against agencies like the Office of the Medicaid Inspector General (“OMIG”) and the Department of Justice (DOJ”). Do not let a mistake or oversight put you in place to lose your reputation or freedom. Our office is prepared to help you through this process.
If you are facing charges related to illegal or improper billing practices or are currently under investigation by a government agency for health care fraud, call the number at the top of this page and schedule a free confidential consultation today