What Health Care Providers Need to Know about Medicare Appeals Fraud

Experienced Medicare Appeals Attorneys Assisting Health Care Providers with Appeals

Unfavorable contractor audits and loses in civil and criminal fraud trials can have devastating consequences for health care providers in all sectors of the industry. If you or your company is facing recoupment requests, denial of payments, fines, or other penalties, our attorneys can fight to protect your financial standing, your reputation, and your future.

Medicare fraud enforcement continues to be among many federal agency’s top law enforcement priorities; and, when it comes to combatting apparent instances of Medicare fraud, regulators have several different tools at their disposal. These include (i) the fee-for-service audit program under which private contractors get paid to target health care providers suspected of overbilling Medicare, (ii) civil enforcement proceedings undertaken directly by authorities such as the Centers for Medicare and Medicaid Services (CMS) or the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS), and (iii) criminal enforcement cases prosecuted by government attorneys at the U.S. Department of Justice (DOJ).

While a criminal Medicare fraud conviction can have the most severe consequences, a civil enforcement action can lead to business-threatening financial consequences, and an unfavorable contractor audit can lead to both financial liability and further government inquiry. Fortunately, there are opportunities to appeal adverse decisions in all three types of cases although the window to preserve your rights is usually limited.

Decades of Legal Experience for Medicare Fraud Appeals

If you need to appeal a Medicare fraud determination, the attorneys at The Criminal Defense Firm can help. With decades of combined experience in both the public and private sectors, our attorneys offer unparalleled insights and Medicare-specific knowledge for matters pending at all levels of the federal justice system. Whether you (or your company’s executives) are facing federal imprisonment or you need to start the fee-for-service contractor appeals process, we can help, and you can trust our extensive experience as defense attorneys, appellate attorneys, and former federal prosecutors to protect your interests as much as possible.

What Type of Medicare Fraud Case Do You Need to Appeal?

1. A Fee-For-Service Audit Contractor Determination

Most Medicare audits are conducted by government contractors called Zone Program Integrity Contractors (ZPICs) and Recovery Audit Contractors (RACs). Each of these types of contractors has authority from CMS to impose financial penalties for Medicare overbilling, including seeking to recover overpayments, suspending future payments from Medicare, and revoking provider’s assignment privileges. ZPICs and RACs can also refer providers to state licensing boards and to CMS, the OIG, or other federal authorities for civil or criminal investigation.

The good news is that, if your practice or business has received an unfavorable audit determination from a ZPIC or RAC, you have the right to file an appeal. The bad news is that the appeals process can be lengthy; and, generally speaking, you will need to exhaust four levels of contractor and administrative appeals before you get your day in court. Of course, there is the possibility that you will have success at one of the lower levels, and having attorneys who are experienced in Medicare fraud appeals will give you the best chance to have your audit determination reversed as quickly as possible.

The stages of appeal for ZPIC and RAC Medicare audit determinations are:

• Redetermination by a Medicare Administrative Contractor (MAC)
• Reconsideration by a Qualified Independent Contractor (QIC)
• Administrative hearing before the Office of Medicare Hearings and Appeals (OMHA)
• Review by the Medicare Appeals Council
• Federal case in U.S. District Court

For more information about each stage in the fee-for-service audit contractor appeals process, you can read: Seven Key Facts for Health Care Providers about the ZPIC Appeals Process.

2. A Civil Monetary Penalties Imposed by CMS, DHHS, or Another Federal Agency

A federal Medicare fraud investigation can have one of three outcomes: (i) the government can drop the investigation, (ii) the government can pursue civil enforcement under a law such as the False Claims Act, or (iii) the government can pursue criminal Medicare fraud charges. While our priority in every investigation is to help our client avoid charges entirely, if this is not a possibility, we shift our focus to keeping the case civil rather than criminal.

The primary reason for this is that, in a civil case, federal prison time is off of the table. Incarceration is a form of criminal punishment, and it is not an option in civil enforcement proceedings. If we can avoid the possibility of imprisonment, then we can focus on narrowing down the issues and challenging the government’s evidence in order to have our client’s civil case dismissed.

But, many health care providers are not able to avoid civil liability. In fact, we are frequently contacted by providers in need of representation for civil Medicare fraud appeals. In this scenario, the first course of action assuming there are grounds for appeal available is to file an appeal with the Departmental Appeals Board (DAB) of DHHS.

Administrative law judges (ALJs) at the DAB have jurisdiction over cases including:

• Civil monetary penalties imposed by the OIG and CMS in cases involving allegations of Medicare fraud, abuse, and noncompliance;
• Revocation of Medicare eligibility due to allegations of overbilling and other forms of Medicare fraud; and,
• Other cases involving civil penalties imposed against health care providers due to allegations of Medicare fraud.

3. A Criminal Medicare Fraud Verdict

If you are facing criminal penalties for Medicare fraud, it is absolutely critical that you seek experienced legal counsel right away. Under federal law, you only have 10 days to file a notice of appeal following a criminal verdict. If you do not timely file a notice of appeal, you could lose your right to challenge the outcome of your case at the appellate level.

Contrary to popular belief, an appeal is not a retrial. An appeal can result in a retrial, but the appellate process is very different from what you experienced at the trial level. In a federal criminal appeal, the focus is on errors made during the trial. These can include:

• A serious error of law (or “plain error”) by the trial judge;
• An abuse of discretion by the trial judge;
• A verdict rendered against the weight of the evidence; and,
• Ineffective assistance of counsel at trial.

While the notice of appeal is a fairly simple form, the criminal appeals process is far from straightforward. Knowing not only how to identify grounds for appeal, but how to raise and argue them effectively, requires extensive knowledge of the federal criminal procedure, substantive Medicare fraud law, and the federal appellate system. At The Criminal Defense Firm, our legal team includes attorneys who are deeply experienced in each of these areas, and we have a proven track record of securing favorable results for our clients at all levels, from criminal investigations to criminal appeals.

To learn more about the appeals process for federal Medicare fraud convictions, we encourage you to read: When Can You Appeal a Medicare Fraud Conviction?

Common Grounds for Filing Medicare Fraud Appeals

Due to the significant differences between audit, civil, and criminal appeals, the grounds for appeal that are available vary greatly from one type of case to the next. The following is a general list of potential grounds for appeal some of these will be available in certain types of cases but not in others. To find out what grounds you may have to file a Medicare fraud appeal, we encourage you to schedule a free case evaluation with our experienced health care fraud attorneys.

• Use of improper methods to calculate Medicare billings This is most commonly asserted in ZPIC and RAC appeals. Despite having won government contracts and supposedly being experts in their field, ZPICs and RACs will often use improper methods to calculate the amounts that health care providers are supposed to have billed Medicare. If the ZPIC or RAC that conducted your audit relied on faulty methods, this is an issue that you can assert from the earliest stages of the appeals process.
• Reliance on outdated or post-dated Medicare regulations Another common issue in ZPIC and RAC appeals is the auditor’s reliance on inapplicable Medicare billing standards. Frequently, auditors will either (i) cite outdated billing standards when seeking recoupment for recent billings, or (ii) improperly apply current Medicare regulations to past billings that were governed by a different regime.
• Lack of evidence to prove all elements of Medicare fraud In both civil and criminal cases, the burden of proof rests with the government. In other words, the government’s attorneys must prove that you committed Medicare fraud; and, if they do not, you should not be held liable or convicted in court. If you were held liable or convicted against the weight of the evidence (in other words, if the government’s attorneys did not do their job to meet the burden of proof), this may provide grounds to file an appeal.
• Procedural missteps that affected the outcome of your case In fee-for-service audits and civil and criminal trials, procedural requirements exist for a reason. They are there to ensure that contractors and federal authorities do not overstep their bounds and take action that interferes with innocent provider’s legal rights. If there were significant procedural deficiencies or missteps in your case, you may be entitled to have the outcome of your case overturned.
• Ineffective assistance of counsel In criminal cases, the Sixth Amendment to the U.S. Constitution entitles defendants to legal representation. If your trial attorney’s representation was deficient to such an extent that it deprived you of your Constitutional right to be represented, this alone can provide sufficient grounds to file an appeal.

This list is by no means intended to be exhaustive. In fact, this is just a small sampling of the numerous grounds for appeal that can exist under a wide range of circumstances. Once again, to find out what grounds you can assert in your appeal, we urge you to promptly schedule a free case assessment so that we can help you understand your situation and take any necessary action to preserve your legal rights.

What to Expect from Your Medicare Fraud Appeal

Similar to the grounds for filing an appeal, the potential outcome of a Medicare fraud appeal depends on the nature of the case. For example, since criminal appeals are not retrials themselves, the appellate court will not render a “guilty” or “not guilty” verdict in your case. Instead, in most cases the appellate court will either affirm the lower court’s decision (in which case your guilty verdict will stand and you will need to pursue the next level of appeal); or, it will reverse the decision and remand the case for further proceedings. If you file an appeal based upon insufficiency of the evidence and win, the appellate court’s decision may effectively amount to an acquittal. However, this type of outcome is relatively rare.

So, does winning on appeal in a criminal case mean that you will automatically face a retrial? Not necessarily. In addition to the possibility we just mentioned, if the appellate court’s ruling results in a key piece of the prosecution’s evidence being excluded from your case, the government may have little choice but to drop the charges against you.

ZPIC and RAC appeals are a different story. If you successfully appeal a Medicare contractor audit determination, the outcome of your appeal will generally dictate the end of your case. For example, suppose you win at the first level of appeal the request for redetermination. If the MAC disagrees with the ZPIC’s or RAC’s determination, the MAC’s determination will control (unless you find the MAC’s alternate determination unsatisfactory, in which case you will have the option to proceed to the next stage of the appellate process).

Speak with the Medicare Fraud Defense Attorneys at The Criminal Defense Firm

If you need more information about filing a Medicare fraud appeal, the first step is to schedule a free case assessment with our team of experienced attorneys. We are happy to help you understand your options, and we will give you the information you need to make informed decisions moving forward. To discuss your Medicare fraud appeal in confidence, call The Criminal Defense Firm at (888) 452-2503 or contact us online today.

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.