Home health care agencies are subject to constant scrutiny by the U.S. Department of Justice (DOJ), Centers for Medicare and Medicaid Services (CMS), Office of Inspector General (OIG), and other federal agencies. If you have been contacted by an auditor or federal agent, it is important that you engage experienced defense counsel immediately.
Despite the undeniable need for home health care services and the clear benefits of providing care to aging patients in the at-home setting, home health is among the most-heavily scrutinized segments of the health care industry. Particularly with regard to Medicare compliance, home health care agencies face rigorous scrutiny from auditors working with the Centers for Medicare and Medicaid Services (CMS) and investigators employed by CMS, the U.S. Department of Justice (DOJ), the Office of Inspector General (OIG), and other federal agencies.
If your home health care agency is being targeted in an audit or investigation, hiring experienced defense counsel can help ensure that you do not face unnecessary consequences. With the potential for recoupments, pre-payment review, fines, loss of Medicare eligibility, and even federal imprisonment, home health care agency owners must exercise extreme caution when their businesses are in the federal government’s crosshairs. At Oberheiden, P.C., our federal defense lawyers have centuries of combined experience representing home health care agencies and other providers in high-stakes Medicare fraud matters, and we can use this experience to help make sure your agency, your finances, and your freedom are secure.
Our Services for Home Health Care Agencies
The federal health care fraud defense lawyers at Oberheiden, P.C. represent home health agencies in all Medicare-related and non-Medicare-related matters. This includes providing representation for:
For home health care agencies, adopting and adhering to a comprehensive compliance program can not only significantly reduce the chances of being targeted in a federal investigation, but it can also provide a strong defense to liability should federal authorities decide to closely examine your agency’s Medicare billing practices. Our lawyers work closely with our home health agency clients to develop customized compliance programs that can be easily implemented organization-wide and that generate paper trails designed to prove compliance during audits and investigations.
Independent auditors working with CMS under its “fee-for-service” audit program routinely examine home health care agencies’ program billings. These auditors (including Zone Program Integrity Contractors (ZPICs), Medicare Administrative Contractors (MACs), and Recovery Audit Contractors (RACs)) have the authority to examine years’ worth of Medicare billing records; and, if they find evidence of overbillings, they can assess recoupments and other financial penalties. ZPICs, MACs, and RACs also have the authority to deny pending claims and institute pre-payment review of future Medicare claims, which can delay payment by as long as six months.
Federal investigations targeting home health care agencies’ Medicare billings can be triggered by audits, anomalies in agencies’ billing data, patient complaints, whistleblower claims, and various other factors. Our lawyers have extensive experience defending home health care agencies in federal investigations, including those involving CMS, the DOJ, the OIG, and all other relevant agencies and task forces. As defense counsel, we interface with these agencies and task forces on our clients’ behalf, and we take a proactive and aggressive approach designed to terminate the government’s investigation before charges get filed.
Grand Jury Subpoenas
In criminal home health care fraud investigations, federal prosecutors must pursue charges by convening a grand jury. If the panel of grand jurors finds “probable cause” to believe that a crime has been committed, then the court will issue an indictment and the case will be set for trial.
If you have been served with a grand jury subpoena, you need to begin working on your defense immediately. Going before a grand jury is a daunting, high-stress, and high-stakes endeavor, and you need to make sure you are fully prepared to testify in a way that does not expose you and your home health care agency to criminal prosecution.
Home health care agency investigations can be either civil or criminal in nature. If it is not possible to avoid charges entirely, then a key aspect of your initial defense strategy will be to try to keep the investigation civil. This will keep prison time off of the table, and it will provide more opportunities to protect your home health care agency against crippling penalties. We routinely represent clients in civil Medicare fraud investigations involving the False Claims Act, Anti-Kickback Statute, and other federal laws, and to date not a single one of our clients has been forced out of business as a result of an investigation in which our attorneys have been involved.
Criminal Medicare fraud allegations come with substantial exposure, and home health care agencies targeted for criminal prosecution will often face multiple counts of multiple charges. If you are being accused of intentionally overbilling Medicare or engaging in any other form of criminal conduct, our defense lawyers can protect you, but it is important that you contact us immediately so that we can begin working on your case as soon as possible.
10 Tips for Home Health Care Agencies that Have Been Contacted by Federal Authorities
1. Identify the Deadlines that Apply.
Whether you have been served with a civil investigative demand (CID), target letter, or grand jury subpoena, there are deadlines that apply. If you miss a deadline, even if you do so unintentionally, your failure to respond to the government’s demand or to appear in court could lead to charges regardless of the veracity of the allegations against you.
2. Institute a “Legal Hold.”
In order to avoid allegations of obstructing justice or interfering with the government’s investigation, you need to preserve any and all records that might potentially be relevant to the government’s decision to look into your home health care agency’s Medicare billing practices. This is referred to as instituting a “legal hold;” and, for most agencies, it means communicating with employees as well as third-party information technology (IT) and data storage vendors.
3. Conduct an Internal Assessment.
Could there be any truth to the allegations against your home health care agency? Could there be something for auditors or investigators to find? Or, do you have the records to show that auditors’ methodologies or investigators’ assumptions are misguided? When facing an audit or investigation, conducting an internal assessment is critical to avoiding surprises and executing a proactive defense.
4. Perform Any Necessary Remedial Action.
If an internal assessment reveals any billing errors or recordkeeping deficiencies, then it may be necessary to take remedial action. However, in doing so, it is critical to avoid tipping off auditors or investigators and raising additional questions that it may be difficult to answer.
5. Avoid Discussing the Audit or Investigation.
When faced with a Medicare audit or health care fraud investigation, it is important to restrict your and your employees’ communications regarding the government’s inquiry. This includes curtailing discussions with auditors, investigators, internal personnel, friends, family, and other third parties.
6. Assemble and Organize a Response Team.
In order to control your message and prevent unnecessary disclosures, inconsistencies, and other issues, it will be necessary to assemble and organize a response team. The members of your response team should be the only individuals authorized to communicate and perform tasks in connection with the audit or investigation, and it should generally be comprised of senior-level executives or managers, appropriate billing or medical personnel, and your agency’s outside legal counsel.
7. Assert All Legal Privileges and Protections.
Whether you are providing billing records to federal agents or auditors are seeking access to your home health care agency’s offices, you are entitled to critical privileges and protections. These include the attorney-client privilege and the protection against self-incrimination. You need to assert these privileges and protections appropriately in order to preserve them.
8. Avoid Potential Traps.
Auditors and investigators will try to get you and your personnel to provide information that you are not required to provide, and they will use a variety of strategic methods in order to try to prove that your home health care agency has engaged in fraudulent Medicare billing practices. These can be traps for the unwary, and as the target of an audit or investigation you need to know how to avoid costly mistakes.
9. Make Note of Any Flaws or Deficiencies.
ZPIC, MAC, and RAC auditors routinely use flawed methodologies and rely on outdated Current Procedural Terminology (CPT) guidelines. Federal agents make mistakes as well, and errors during audits and investigations can provide defenses to both civil and criminal responsibility.
10. Focus on Achieving an Efficient Resolution.
While there are several steps in the prosecutorial process and there are multiple stages of appeal for ZPIC, MAC, and RAC audits, home health care agencies targeted in audits and investigations should focus their efforts on achieving a favorable outcome as efficiently as possible. This can drastically limit the financial costs involved, and it can also preserve critical confidentiality so that the allegations against your agency do not make their way into the public eye.
Each of these steps can be critically important; and, to make sure you are protecting yourself, your home health agency, and your employees, you should engage experienced defense counsel promptly. When you hire our firm to represent you, our federal defense attorneys will act immediately to intervene in the audit or federal investigation and take all steps necessary to prevent undesirable consequences.
Q&A with Firm Founder and Lead Defense Attorney Dr. Nick Oberheiden
Q: Why is my home health care agency being targeted?
There are a number of specific reasons why your agency might have been singled out for an audit or investigation, but the more-general answer is simply that you are operating within the home health care space. The DOJ, CMS, and other federal agencies have identified home health care as a problem area within the broader health care industry; and, in recent years, targeting home health care agencies for Medicare fraud has become a top federal law enforcement priority.
Q: What are some of the most-common allegations against home health care agencies in relation to Medicare fraud?
While auditors and federal investigators will target home health care agencies for all types of Medicare billing violations, in our firm’s experience, five of the most-common allegations against home health providers are:
- Improper certification and re-certification of patients for home health care;
- Unlawful marketing arrangements that violate the federal Anti-Kickback Statute;
- Unlawful arrangements with medical directors who do not establish doctor-patient relationships with home health care agency patients;
- Upcoding and billing for services not actually provided to patients; and,
- Failing to adopt an adequate Medicare billing compliance program.
Q: Do I have to give ZPIC, MAC, or RAC auditors everything they are asking for?
Probably not. ZPICs, MACs, and RACs operate on a “fee-for-service” basis, and this means that they have a financial incentive to uncover as many Medicare overpayments as possible. As a result, they will often attempt to conduct invasive audits that seek to scrutinize years’ worth of home health care agencies’ program billings. If your agency is being audited, our lawyers can keep the process in check, and we can deal with the auditors for you so that you do not have to worry about accidentally providing protected information.
Q: Could I really be at risk for criminal prosecution?
Unfortunately, yes. Due to the government’s focus on targeting home health care agencies for Medicare fraud, federal prosecutors are aggressively pursuing charges against agencies, their owners, and the doctors that work with them. The False Claims Act, the Anti-Kickback Statute, and various other statutes include provisions for criminal prosecution, and we routinely see cases in which criminal penalties are on the table.
Q: Does Oberheiden, P.C. represent home health care agencies nationwide?
Yes, we have represented clients in more than 40 states and counting. Regardless of where your home health care agency is located, our federal defense lawyers can represent you, and we can begin working on your defense strategy immediately if necessary.
Request a Free Home Health Care Fraud Consultation at Oberheiden, P.C.
To speak with a member of our federal health care fraud defense team about your home health care agency’s audit or investigation, please call 214-469-9009 or contact us online. You can reach us 24/7, and we will arrange for you to speak with one of our lawyers in confidence as soon as possible.