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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Criminal Defense Law

The industry that is the most regulated in the United States, with a myriad of complex state and federal laws and regulations, is the health care industry.  It is also the industry, next to the defense industry, which has the largest expenditure of government funds.

Because of the large dollar amounts involved in health care, the great costs of many medical procedures and treatments and the complexity of payments plans, there are those who may attempt to take advantage and defraud the government or others.  However, there are also those who just make honest mistakes in billing or whose billing personnel make mistakes; unfortunately, these honest errors may result in a criminal prosecution if not handled correctly.

Physicians may be the victims of schemes to abuse their provider numbers and bill for services they have not performed or supervised.  In such cases, this firm has been successful in having the physician dismissed from the prosecution and the correct parties prosecuted.

There are both federal and state initiatives to crack down on healthcare fraud and this has lead to an increasing number of criminal prosecutions recently.  Additionally, “whistle blowers,” usually disgruntled former employees, have also caused a number of criminal investigations to be opened, based on False Claims Act or “qui tam” cases, that they have filed, hoping to obtain a percentage of the monies recovered.

In many instances, the activities of entire fields may be subject to strict scrutiny by federal or state prosecutors.  We have recently seen this with targeted case management (TCM) companies infusion clinics and pain management clinics.

The Health Law Firm has attorneys who are familiar with health care and medical institutions, who have worked in hospitals, and other health facilities and who are familiar with medical, nursing and hospital practices and procedures are more likely to be more effective at representing you.

The Health Law Firm and its attorneys provide criminal defense services for all healthcare professionals, including physicians, dentists, pharmacists, nurses, nurse practitioners, CRNAs, chiropractic physicians, physician assistants, psychologists, and other health care providers who are being investigated or charged with criminal conduct.  There has been an increase in the past few years of investigations of healthcare providers leading to serious fines, administrative penalties, disciplinary actions and jail time.

It is imperative to contact and retain the services of an experienced attorney if a medical professional is a victim of a criminal accusation.

Signs That You May Be the Target of a Criminal Investigation Include:

Receiving notice from a patient that the patient was contacted by an investigator
Receipt of a subpoena for records from the Office of the Inspector General (OIG), U.S. Attorney or State Attorney General
Being approached and questioned by a government agent
The arrest of other professionals with whom you do business
The execution of a search warrant for your records
Receiving notice from an employee or former employee that he/she was contacted by an investigator
The seizure of your bank accounts by a government agency
Receipt of a demand letter in a Medicare False Claims Act case
Receipt of a target letter from the U.S. Attorney’s Office notifying you that you are a possible target in a criminal investigation
Receiving a telephone call from a government agent or local law enforcement official to ask you questions

Be sensitive to the signs that the fishing net of an investigation may be slowly encircling you.  Contact and retain an experienced criminal defense attorney at the earliest opportunity.

If you are a licensed health professional, such as a physician, dentist, nurse, chiropractor, pharmacist, mental health counselor, or if you own or operate a licensed health facility, such as a home health agency (HHA), skilled nursing facility (SNF), assisted living facility (ALF), targeted case management (TCM) company, durable medical equipment (DME) supplier, or any other type of health facility and you suspect you are under investigation, take immediate action to begin protecting yourself.

Medicare Fraud Defense

When a medical professional, medical group or medical facility bills the federal Medicare Program or any other federal program, such as Tricare (the military insurer), the Veterans Administration (VA), the Public Health Service (PHS) or the Indian Health Service (IHS), a federal investigation may be initiated based on patient complaints, audit results or other facts raising suspicions in the minds of the regulatory authorities.

When an investigation is being conducted into Medicare fraud, it may include special agents (S/As) of the Office of the Inspector General (OIG), the Federal Bureau of Investigation (FBI), the U.S. Postal Service (USPS), the Food and Drug Administration (FDA), the Drug Enforcement Administration (DEA) or other agencies.  Often, state law enforcement authorities will be involved, as well.

Medicare fraud carries some extremely harsh penalties, both criminal and civil.  These include prison sentences, and significant fines for each false claim that has been filed.

Unfortunately, repeated billing errors of the same type and billing errors that are continued even after audits and educational visits, may be used by the government to prove that there is a criminal intent to defraud the government.

Recent changes in the federal laws require that when there is a determination by a Medicare provider that it has received an erroneous overpayment, then the overpayment amount must be refunded to the government within sixty (60) days, or criminal penalties can result.

Attorneys of The Health Law Firm are familiar with:

Representing Medicare providers in responding to subpoenas
Representing Medicare providers in questioning by investigators
Representing Medicare providers in responding to Medicare audits
Representing Medicare providers in defending qui tam (False Claims Act or “whistle blower” law suits)
Representing Medicare providers in responding to ZPIC and RAC audits
Representing Medicare providers in defending litigation for civil monetary penalties
Representing Medicare providers in federal criminal actions against them
Representing Medicare providers in becoming “cooperating witnesses” to assist them in targeting the correct criminal

Medicaid Fraud Defense

Each state administers its own state Medicaid Program.  However, state Medicaid programs are funded, in part, with federal funds and are operated pursuant to federal laws, as well as state laws.  Therefore, a federal investigation may also include charges of Medicaid fraud.  However, for the most part, Medicaid fraud allegations will be investigated by state law enforcement officials.

All states have  a state medicaid fraud control unit (MFCU) or similar agency, usually operating under the authority of the state’s attorney general or its Medicaid agency.  It is usually composed of criminal investigators and prosecuting attorneys.

There are often more rules and restrictions governing billing a Medicaid program for services than there are for the federal Medicare Program.  Additionally, these regulations and services that may be paid by Medicaid funds vary greatly from state to state.

If the Medicaid medical provider bills the Medicaid program too many times, bills for services provided by a non-Medicaid provider, or makes billing mistakes, then it is at risk of being investigated and charged with Medicaid fraud.  Many times the state will conclude that because there were a large number of billing errors of the same type, or if they persist after an audit has revealed these errors to the provider, that intentional fraud was committed.  Sometimes, when there is only one provider of a type of medical service (e.g., oral surgery) in a large geographic area, that person’s high amount of billings to the Medicaid program may cause him or her to come under investigation.

The most common types of problems that may lead to an investigation for Medicaid fraud are:

Billing for services that were not rendered
Billing for services provided by someone not properly licensed or trained to provide that service
Billing for services provided by someone who was not a Medicaid provider  Over-billing or upcoding (billing for more services, more time or a higher level of care than was actually delivered)
Billing for items, services, drugs, or treatments which the state’s Medicaid program that it does not specifically cover
Billing for those who should not receive treatment (dead patients, mentally incapacitated patients)
Billing for drugs, equipment or supplies that were previously provided to the Medicaid provider at no cost

Additional Consequences to Health Providers Convicted of Any Health-related Fraud:

A conviction of Medicare fraud, Medicaid fraud, health insurance fraud, or any theft or fraud relating to health care can have exceptionally serious and possibly irreversible consequences to a health professional or the owners and officers of a health care facility.  For these purposes, the laws and regulations that are applicable define a plea of “nolo contendere” the same as a plea of “guilty.”  The laws and regulations that are applicable define a finding of “adjudication withheld” or “adjudication deferred” the same as a finding of “guilty.”

Therefore, pleading “nolo contendere” pursuant to a plea bargain and receiving a finding of “adjudication withheld” will be treated as being found guilty of the offenses charged.

A finding of guilty of a crime related to health fraud (even a misdemeanor) may result in the following collateral consequences:

Being excluded from the Medicare Program for one year or many years
Being terminated as a state Medicaid provider
Being placed on the U.S. government’s “debarred list” and barred form all government contracting activities
Action against the state license
Action against the facility licenses of any other health facilities or organizations in which the person is an owner, officer or employee
Loss of DEA registration
Loss of hospital or health facility clinical privileges
Having participation on provider panels of health insurers terminated

The Health Law Firm is experienced in defending health care professionals in these matters, and will assist you in taking the steps necessary to mitigate adverse consequences, appealing them, or later having them reversed.

Contact an Experienced Attorney

If you have any suspicion that you may be the subject of an ongoing criminal investigation, please immediately consult with us.  We advise our clients not to talk to or provide any statement at all (oral or written) or any documents to any investigator without first consulting with an experienced attorney.