What You Should Do When You Are Under False Claims Act Investigation

Defense Attorneys Serving California Medical Professionals under Investigation for False Claims Act Violations Across the US

Potential penalties for violating the False Claims Act include substantial financial penalties, exclusion from participation in Medicare, and even federal incarceration. If you are facing a False Claims Act investigation in California, you need a team of experienced defense attorneys who can help protect your rights.

The False Claims Act is a federal statute that imposes civil and criminal penalties for California healthcare providers and others who bill Medicare for false and fraudulent claims. It is a broad law enforcement statute that the Centers for Medicare and Medicaid Services (CMS), the Federal Bureau of Investigation (FBI), the Department of Justice (DOJ), the Office of Inspector General (OIG), and other federal agencies use to target those suspected of Medicare fraud.

If you are being investigated under the False Claims Act, this does not mean that you have been charged with a federal offense. But, it does mean that you could face civil or possibly even criminal charges if the investigators find enough evidence to support allegations of fraud. Federal investigators and prosecutors in California are actively targeting physicians and others suspected of violating the False Claims Act, and hiring an experienced defense team to intervene in the investigation early is the best way to avoid exposure to possible civil or criminal liability.

10 Steps to Take When Facing a False Claims Act Investigation

1. Understand the Allegations Against You

The first step toward defending yourself in a False Claims Act investigation is to understand the allegations against you. The False Claims Act covers a wide variety of types of Medicare fraud, and knowing why you are being investigated is critical to mounting a successful defense. Some of the most common allegations of False Claims Act violations include:

• Billing for services that were not performed or for equipment or supplies that were never ordered (phantom billing)
• Billing for medically unnecessary services, equipment, or supplies
• Proving physician certifications for medically unnecessary services (such as for in-home health or hospice care)
• Proving physician certifications for medically unnecessary supplies (such as DME)
• Double billing, upcoding, and other forms of coding fraud
• Offering or accepting kickbacks

However, even if you suspect that you or your practice may have submitted false claims or engaged in another fraudulent practice, you need to avoid making assumptions, and you need to make sure that you do not volunteer any information that prosecutors with the DOJ may be able to use against you. The only way to truly know whether you have violated the False Claims Act is to speak with a qualified healthcare fraud defense attorney.

2. Understand the Consequences of Civil Liability or a Criminal Conviction

The penalties you are facing will depend on whether your False Claims Act investigation is civil or criminal in nature. Civil penalties may include:

• Treble (triple) damages for amounts fraudulently billed to Medicare
• Fines of up to $11,000 per false claim
• Recoupment requests
• Non-payment of future claims and disqualification from participating in Medicare
• Loss of hospital privileges

Criminal penalties under the False Claims Act may include:

• Potentially hundreds of thousands of dollars in fines
• Up to five years in federal prison for each charge

3. Determine Whether the Investigation is Civil or Criminal in Nature

With the severity of these penalties in mind, when facing a False Claims Act investigation, one of the first things you need to do is determine whether the investigation is civil or criminal in nature. If the investigation is civil, you want to keep it that way. You do not want prison time to be on the table. If the investigation is criminal, you will need to build a defense strategy that is tailored to preventing the government from proving the allegations against you.

4. Take Action and Avoid Mistakes that Could Harm Your Defense

In any Medicare fraud investigation, early intervention is critical. You need your defense team to make contact with the investigators and prosecutors assigned to the case, and you need to take proactive measures to protect yourself and your practice as much as possible. The Criminal Defense Firm’s Emergency Defense Package is designed to help physicians and other healthcare providers begin protecting themselves immediately. It includes:

• General Protocols: What to Do
• Instructions for Management: How to Deal with Agents
• Instructions for Management: How to Deal with Employees
• Instructions for Employees
• Document Retention Forms
• Compliance Examination Instructions
• Important Contact Information

To receive our Emergency Defense Package, please inquire today.

5. Learn More About Your Situation

Facing a False Claims Act investigation is a unique, stressful, and challenging experience, and you need to try to inform yourself about the process as much as possible. In the following five articles, the healthcare fraud defense attorneys and former federal prosecutors at the The Criminal Defense Firm explain what physicians and other providers in California need to know when facing a federal investigation:

• Government Investigations Explained
• How Federal Criminal Cases Work
• What to Do First When Charged with a Federal Crime
• Charged with a Federal Crime? What You Need to Know
• What to Do if you Need a Criminal Defense Attorney

6. Learn About the Potential Defenses to Violations of the False Claims Act

With decades of experience on both sides of False Claims Act investigations involving allegations of Medicare fraud, the attorneys at The Criminal Defense Firm have developed a number of proven defense strategies for protecting clients against both civil and criminal liability. When you engage our firm for your defense, we will conduct a critical assessment of your situation in order to determine the strategy(ies) that are most likely to result in a finding of no civil or criminal responsibility.

Some potential defenses to alleged violations of the False Claims Act include:

Lack of Evidence

The government has the burden of proving your civil liability or criminal guilt beyond a reasonable doubt. If we can challenge the government’s evidence (or lack thereof), this can be an effective strategy for preventing your investigation from leading to charges.

Lack of Criminal Intent

In order to prove a False Claims Act violation, the government must also be able to prove that you had the requisite criminal intent. Our defense attorneys are experienced in using a variety of different strategies to argue that, even if a false claim was submitted, liability is not warranted due to lack of criminal intent.

Statutory Medicare Fraud Defenses

From safe harbors to exceptions for specific sets of circumstances, there are a variety of statutory defenses that can be used to insulate physicians and other providers from liability under the False Claims Act. With decades of combined experience in False Claims Act investigations, our attorneys are intimately familiar with the wide array of defenses that are available.

7. Understand the Differences Between Criminal Defense, Healthcare Law, and Healthcare Fraud Defense Attorneys

When you are facing a False Claims Act investigation, what type of attorney should you choose to represent you? Should you choose a criminal defense attorney, who may know general defense strategies but lack in-depth knowledge of healthcare-specific issues? Or, should you choose a healthcare lawyer, who may know the substantive law but be inexperienced in presenting effective arguments during investigations, plea negotiations, and trial?

The answer is Neither. When facing a False Claims Act investigation, your best choice for legal representation is a team of experienced healthcare fraud defense lawyers. These lawyers not only know both criminal law and healthcare law, but also know how to present effective defenses based upon the application of specific healthcare law concepts within the context of a federal investigation.

8. Understand the Importance of Hiring Former Federal Prosecutors for Your Defense

In addition to choosing a team of healthcare fraud defense lawyers, you also want to make sure that your defense team includes former federal prosecutors. Why? Because these lawyers will understand your case from the government’s point of view. They will know when the government chooses to launch investigations, and why prosecutors will choose not to press charges in light of the defense strategies presented.

9. Prepare for Your Initial Consultation

When engaging a law firm for your False Claims Act investigation, the first step is to sit down for an initial consultation. During this meeting, you will want to learn as much information about the firm and its attorneys as possible. As a result, you should ask questions such as:

• How much experience do your attorneys have in False Claims Act investigations?
• Do your attorneys have experience as former healthcare fraud prosecutors?
• Are your attorneys familiar with the Medicare billing system and the causes behind common billing errors?
• How often do your investigations result in no civil or criminal charges?
• How quickly can your attorneys make contact with the investigators handling my case?
• What can I expect in the ensuing weeks, given the current status of the government’s investigation?

You will want to bring any notes, subpoenas, and other relevant documents with you as well.

10. Choose a Law Firm with a Proven Record of Success in False Claims Act Investigations

Perhaps most importantly, you will want to choose a law firm that has a proven record of success in False Claims Act investigations. While past results are not indicative of future outcomes, at The Criminal Defense Firm, we have represented numerous clients resulting in no civil or criminal charges.

Contact the False Claims Act Defense Lawyers at The Criminal Defense Firm

For a free, confidential consultation with the healthcare fraud defense attorneys at The Criminal Defense Firm, call 866-603-4540 or contact us online now. Our defense lawyers and former federal prosecutors have decades of experience representing clients in Medicare fraud investigations throughout California and nationwide.

Brian J. Kuester

Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.