Health Care Fraud Defense

With the media focusing on health care and the rising costs of health care services, the Government has put extra pressure and resources on prosecuting individuals and businesses accused of committing health care fraud. If you are being investigated, or suspect that you are a target or subject of a Government investigation, the sooner you act the better the outcome of your case will likely be.

What Is Medicare And Medicaid Fraud?

Generally, Medicare/Medicaid/Healthcare fraud occurs when an individual or larger entity (e.g., a corporate healthcare provider) defrauds an insurer or the United States government by submitting false claims for reimbursement from Medicaid, Medicare, and/or private insurance companies. Individuals may be liable for fraud based on a variety of acts and conduct. For instance, healthcare fraud charges may be based on billing the insurance provider for services/prescriptions which were never provided to a patient or are medically unnecessary.

There is no single law governing healthcare fraud. On the contrary, the government may rely on a plethora of statutes in bringing charges against a potential defendant, including, but not limited to: the Anti-Kickback statute (42 U.S.C. § 1320a-7b(b)), the False Claims Act (18 U.S.C. § 287), statues banning mail and wire fraud (18 U.S.C. §§ 1341-1342), federal laws concerning conspiracy (18 U.S.C. § 371), RICO violations, money laundering, and obstruction of justice. A healthcare defendant could be charged under any combination of these laws. Familiarity with each, therefore, is imperative.

What Are The Possible Repercussions Of Healthcare Fraud?

If charged with Medicare/Medicaid fraud, an individual may be faced with a variety of harsh penalties.

  • First and foremost, defendants found guilty of healthcare fraud may be sentenced to imprisonment in a federal penitentiary.
  • Second, any individual who is convicted of or has pled guilty/no contest to healthcare for fraud can be excluded from participating in Medicare/Medicare programs for at least five years.
  • Third, many healthcare professionals who have participated in Medicare/Medicaid fraud lose their professional licenses and are barred from practicing in their field of expertise.
  • Fourth, the Social Security Act (42 U.S.C. § 1320a-7a) subjects anyone who participates in healthcare fraud to civil monetary penalties of up to $2000 for each item or service.
  • Finally, in addition to criminal prosecution, private persons or the Attorney General may seek civil damages pursuant to the Civil False Claims Act (31 U.S.C. § 3729).

In other words, the risks are high and the repercussions are far-reaching in healthcare fraud cases. Thus, the importance of adequate preparation and representation cannot be overstated.

What Should You do If You Are Charged With Medicare/Medicaid Fraud?

You should hire a healthcare fraud lawyer immediately! Retaining counsel early in the process (i.e., upon learning of an investigation) is vital to the outcome of your case. Only a criminal defense attorney who has experience with healthcare fraud cases can fully understand and effectively address the myriad of issues which may arise during a prosecution. Every stage of a case requires skillful legal assistance, from the initial investigation to negotiation with the government to pre-trial matters to trial to sentencing.

For example, some common issues which require the help of an experienced attorney include:

  • Crafting a plea agreement which covers all possible repercussions. Healthcare fraud defendants often discover that their plea agreements limit their ability to challenge sentencing recommendations. Many plea deals include provisions restricting a defendant's ability to argue for a lenient sentence, even if they provide invaluable assistance to the government or successfully rehabilitate themselves prior to sentencing. An attorney can provide invaluable guidance in deciding whether to accept a plea deal and/or how to bargain over terms.
  • Assisting government agents during their initial investigations. A healthcare fraud defendant may receive a more lenient sentence if he or she aids the Government in prosecuting crimes involving healthcare fraud. For example, an individual may be called upon to testify against co-defendants or others at trial in exchange for the Government recommending a lower sentence. Defense attorneys can assist in this process by reaching out the government in the early stages of a case and advising clients about interactions with the prosecution.
  • Advising individuals on how to avoid additional charges. Charges of obstructing justice and/or witness tampering are a significant possibility in many healthcare fraud cases. Any attempt to destroy documents or having discussions with co-defendants or unindicted third parties could be interpreted by the government as criminal action, leading to harsher charges and penalties. Obtaining the advice of a lawyer can help individuals avoid making careless mistakes concerning document maintenance and communication with others.
  • Having the resources and experience to effectively navigate through discovery. Medicare/Medicaid fraud cases are characterized by the voluminous amount of paperwork involved—e.g., billing statements, corporate records, internal memos, correspondence, physician notes, wire taps etc. Producing and reviewing such an overwhelming amount of discovery may result in a wrongful conviction or an overly harsh sentence if any documents are mistakenly lost or disregarded. An attorney with the resources and experience can effectively wade through the morass and preserve all necessary records.
  • The trial experience and know-how necessary to present a complex case to a jury at trial. Medicare/Medicaid prosecutions involve convoluted and complicated issues. A defense lawyer, therefore, needs be a seasoned litigator and a trial lawyer. An experienced trial attorney can best present the complex issues in a healthcare fraud case in a way that is both understandable and persuasive to a jury. Remember, at the end of the day, in a healthcare fraud case, your lawyer will be litigating the issue of your intent to commit a crime. (Read more: Demosthenes Lorandos and Ashish Joshi, Is That What I Meant? Litigating Intent in White Collar Crime, The Champion, Sept./Oct. 2007.)

Challenging Sentencing Recommendations

Sentences are not always representative of the criminal accusations and convictions. We push back to ensure that they accurately reflect an individual's participation in the Medicare fraud scheme.

Even after the trial or plea bargain complete, the attorney's role is far from over. Extensive preparation, legal research, and persuasive writing are a must during the sentencing phase of a healthcare fraud case. Not only can the attorney seek a more lenient sentence, but also a defendant's lawyer can ensure that the sentence is legally permissible. For example, a sentence may be unlawfully enhanced if the prosecution includes civil monetary fines in calculating the amount of money lost due to the defendant's fraud. An attorney familiar with healthcare fraud sentencing, on the other hand, is trained to recognize and address such issues in court.