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 Medicare Fraud.
What is “Medicare Fraud?”
“Medicare Fraud” refers to various types of fraud carried out against the federal government’s Medicare program.
Due to the wide array of crimes related to Medicare Fraud, numerous agencies are involved in the direction and persecution of offenders.
Types of Medicare Fraud
“Medicare 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
- Failure to supervise
- and more.
Fraud Against Medicare and Medicaid
Federal agencies like the Office of the Inspector General (“OIG”) have assembled task forces to specifically combat fraud carried out in connection with government benefits providers such as Medicare and Medicaid.
A claim is made; a bill is presented to the provider; the provider pays the bill. If any part of the process was intentionally executed improperly in order to receive a benefit – like being paid more than you are owed – then you may have committed fraud.
The Blanch Law firm has experience representing clients facing federal charges for Medicare Fraud related to violations of the following statutes:
1. The False Claims Act (“FCA”) (18 U.S.C. § 287)
2. The Anti-Kickback Statute (“AKS”) (42 U.S.C. § 1320a-7b(b))
3. The Criminal Health Care Fraud Statute (18 U.S.C. § 1347)
Penalties for Medicare Fraud
Medicare and the government have clear guidelines for the consequences of a fraud conviction. Below are some of the sentencing guidelines for violating the statutes above:
- Federal False Claims Act (18 U.S.C.§ 287) – Penalties for violating the Federal 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 submitted.
- Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) Penalties for violating the Federal Anti-Kickback Statute may include fines of up to three times the amount of the kickback plus $100,000 per kickback.
- Federal Health Care Fraud (18 U.S.C.§ 1347) – Penalties for violating the Federal Health Care Fraud Statute may include a fine, imprisonment of up to 20 years, or both.
Sentences may vary depending on the nature of the charges.
Who Investigates and Prosecutes 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”)
- Health Care Fraud Prevention Partnership (“HFPP”)
Proving a Case of Medicare Fraud
When you are facing criminal charges, the prosecution must prove each part or “element” of the crime to reach a conviction.
Most Medicare Fraud cases involve prosecutors determining if you:
- “Deceived” a benefits provider through unethical transactions;
- “Received” or “intended to receive” money or other benefits that were not owed to you; and
- Acted with the “intent” to commit fraud;
Your defense may depend on understanding these elements.
#1. Did You Engage in “Unethical Behavior?”
“Acting in a manner outside of standard practice or billing while interacting with Medicare.” In this element, there is no consideration of motives or intent. The goal of this element is only to prove that unusual and seemingly unethical interaction with Medicare occurred.
United States ex rel. Integra Med Analytics, L.L.C. v. Baylor Scott & White Health, et al.: In this case, analytical data showed that the defendant was billing Medicare excessively by “upcoding” (using excessive billing codes.) This data proved the first element—activity occurred, which was not within the scope of standard practice.
Example: You are charged with Medicare fraud. Medicare is showing that you have billed for patients that you have never seen. The prosecution could use those records as well as testimony from the alleged patients to prove the first element.
#2. Did You Receive “Money or Other Benefits?”
“Procuring or attempting to procure money that was not yours via fraudulent activity.” Determining if you have taken money or tried to take money that does not belong to you is a significant part of the prosecution’s case.
Looking back at the Baylor Scott & White Health case, the financial transactions were the initial red flags. What appeared to be fraudulent claims for over sixty million dollars raised serious questions that money was being paid to the defendant illegally. The case was ultimately dismissed when it was proven that the defense was maximizing their billing, which is perfectly legal and meant the money was owed to them.
Example: You are charged with Medicare fraud because your practice made a million dollars more than the previous year. The first element has been proven by showing your significantly higher Medicare claims. You can show that you have changed billing companies, and your new company is far more efficient, and the charges are dropped.
#3. Did You “Intend” To Commit Fraud?
“Intentionally devising a scheme to defraud Medicare for personal gain.” This is the big one. If the prosecution can prove that you intended to commit fraud, you may be convicted.
However, 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. It can be hard to prove what a person’s intentions were, so this element is critical in your defense.
Example: The False Claims Act (31 U.S.C. §§ 3729 to 3733) defines false claims as “any person or entity knowingly presenting a fraudulent claim for payment or approval.”
Charges Related to “Medicare Fraud”
The most common charges related to Medicare Fraud include:
“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.
- 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.
“Medically Unnecessary” Procedures
- Definition: Performing unnecessary medical procedures and administering treatments that are unneeded with the intent to bill the patient more than appropriate.
- Example: Your patient comes in for a check-up, and you order advanced blood work, a scan, and a biopsy so that you can collect for these tests. You will be charged with practicing medically unnecessary procedures.
Defenses to Charges of Medicare Fraud
#1. You Lacked the “Knowledge” and “Intent” to Commit Fraud:
Mistakes happen! It is entirely possible that in the course of your career, you made innocent mistakes with no intent to commit fraud. The law cannot convict on an innocent mistake, and you have to prove that there was no ill intent. Case example: United States ex rel. Bennet v. Medtronic, Inc., 747 F. Supp. 2d 745, 783
Example: You are accused of Medicare fraud because you billed the patient under the wrong doctors. You do billing for multiple practices and can show that you have simply confused patient and physician and are found not guilty.
#2. You Billed Appropriately, Albeit Higher Than a Competitor:
There have been numerous cases of charges being dropped because the practitioner was simply billing efficiently. Case example: United States ex rel. Integra Med Analytics, L.L.C. v. Baylor Scott & White Health, et al..
Example: You are working in an office that performs in the top five percent of all offices with regard to profit and billing. Your bills are substantially higher. You argue that you are most effective at maximizing your profit and show examples of your billing reasoning. The case is dismissed.
#3. The Complaint is Not Specific Enough to Meet the Requirement:
Under the false claims act, the accusation must contain explicit details covering very specifically what is being alleged by the prosecution. It is a multi-element accusation, and if anyone of those is unmet you can contest the validity of the case. Case example: U.S. ex rel. Duxbury v. Ortho Biotech Prod., L.P., 579 F.3d 13, 29 (1st Cir. 2009).
Example: Your former administrative assistant alleges that she witnessed fraudulent billing but cannot specifically cite an instance of it occurring. You argue she lacks specification, and the case is dismissed.
Liability of Clinical Staff
Everyone in your office is at risk if you are accused of medicare fraud. From your nurses to administrative staff to other companies with which you partner, anyone can be charged with fraud. It is very important to seek legal counsel, not only to protect yourself and your business, but also to protect those with which you work closely.
U.S. ex rel. Berger et al. v Baylor University Medical Center at Dallas et al., United States District Court N.D. Texas, Case No: 3:10-cv-1103: This case dealt with uncredentialed individuals allegedly billing Medicare for procedures and treatments that required a credentialed professional. It established that it is considered fraud if an uncredentialed person executed a procedure and billed that procedure as if a medical professional with the required qualifications were present–even if the qualified person checked the work after the fact.
Call Us Today
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 Medicare or are under investigation, call (212) 736-3900 for a free confidential consultation today.