When facing a federal health care fraud investigation, your number one priority must be to prevent the investigation from leading to criminal charges. Depending upon the circumstances involved, here are seven defense strategies you may have available.
As a health care provider in the United States, you are at risk for being targeted by the federal government. Although you have devoted your professional career to meeting the needs of others, due to widespread abuse of the Medicare, Medicaid, and Tricare systems, the government automatically views you as a potential criminal.
Today, health care fraud investigations are commonplace. Whether triggered by a “fee-for-service” audit or a whistleblower’s allegations in a qui tam lawsuit, these investigations can be invasive, costly, and disruptive. They can also lead to severe penalties, up to and including criminal fines and federal imprisonment.
Protecting Your Health Care Business or Practice During a Federal Fraud Investigation
If your health care business or practice is under investigation for federal fraud, what do you need to do to protect yourself against criminal charges? Here are seven proven defense strategies pioneered and advanced by federal health care fraud defense attorney, Nick Oberheiden, PhD:
1. Stop the Government in Its Tracks
By the time you find out that you are under investigation, the U.S. Department of Justice (DOJ), Office of Inspector General (OIG), and various other federal agencies could already be coming after you full steam ahead. In order to slow down the investigation and prevent the government from filing charges before you have had a chance to tell your side of the story, you need to intervene in the investigation.
What does it mean to intervene? At Oberheiden, P.C., we use our extensive experience in federal health care fraud investigations to communicate effectively with the agents and prosecutors involved, determine the nature of the investigation (i.e., civil or criminal), and convince them that there is more than one story to be told. Once the government knows we are involved, the process slows down and you will have the opportunity to begin implementing a strategic defense.
2. Turn the Tables in Your Favor
In a typical health care fraud investigation, the federal agents and attorneys will have decades of combined experience in cases just like yours and several of them will likely hold senior positions within the DOJ or OIG. This puts you at a distinct disadvantage. But, by engaging a defense team comprised of nationally-renowned defense attorneys and former senior health care fraud prosecutors, you can put the experience factor on your side.
3. Call out Faulty Assumptions and Methods
Despite their vast experience in health care fraud investigations, agents and prosecutors with the DOJ, OIG, and other agencies make mistakes just like everyone else. In addition, in cases involving investigations triggered by MAC, RAC, and ZPIC audits, it is not at all uncommon for the auditor to have reached faulty conclusions based upon flawed auditing methodologies and assumptions.
4. Dig Deep into the Provisions of the Federal Health Care Laws That Protect You
While the False Claims Act, Anti-Kickback Statute, Stark Law, and the various other laws the DOJ and OIG use to target health care providers are extremely broad in scope, they are also subject to a variety of statutory and regulatory exceptions. For example, the False Claims Act requires clear evidence of “specific intent to violate the law or . . . a consciousness that what [you were] doing was wrong,” in order to trigger criminal culpability. Another example is the Anti-Kickback Statute’s prohibitions on “remuneration” are subject to a laundry list of safe harbors that protect all types of compensation-based relationships.
5. Know When Enough Is Enough
Although cooperating with the government’s investigation can benefit you to a degree, you also need to know when enough is enough. If you are overly cooperative and you end up supplying federal agents with incriminating information, your willingness to help is not going to save you from criminal prosecution.
Likewise, when federal agents knock at your door or when the OIG sends you a subpoena in the mail, you need to know when the federal government is overstepping its authority. While the DOJ, OIG, and other federal agencies have broad investigatory powers, there are Constitutional, statutory, and regulatory limits to how far they can go.
6. Leverage the Facts (Or Lack Thereof)
Sometimes, the best defense is a good offense. While the government has the burden of proving your guilt beyond a reasonable doubt, if you have evidence that you are innocent, proving your innocence could stop the government in its tracks. On the other hand, if the facts are simply too convoluted and the evidence to support charges just isn’t there, this too is something you can use to leverage a favorable outcome prior to charges being filed.
7. Keep It Civil
Finally, if the government has evidence against you and charges appear to be on the horizon, then you may need to shift your focus to keeping the charges civil in nature. The legal standards in civil and criminal cases differ in more ways than one. In addition to limiting your potential exposure, keeping your case civil may also improve your chances of negotiating a favorable settlement prior to trial.
Regardless of the circumstances involved, if you are facing a federal health care fraud investigation, the worst thing you can do is nothing at all. You need to protect yourself by all means necessary, and this starts with engaging experienced defense representation.
Discuss Your Federal Investigation with Health Care Fraud Defense Lawyer, Dr. Nick Oberheiden
Is your health care business or practice under investigation by the DOJ, OIG, or any other federal law enforcement agency? If so, contact Oberheiden, P.C., now to schedule a free and confidential case assessment with founding attorney, Dr. Nick Oberheiden. We represent clients nationwide and we are available 24/7. So call (214) 469-9009 or request an appointment with Dr. Oberheiden online now.