Experienced Legal Defense Attorneys Protecting Psychologists from Medicare Fraud Charges in California
As the federal government’s Medicare Fraud Strike Force and other federal law enforcement authorities set their sights on California, psychologist throughout the state are suddenly and unexpectedly finding themselves the targets of invasive federal investigations. With the potential for both civil and criminal penalties, if you are being targeted for possible Medicare fraud, you need to hire experienced defense attorneys to intervene in the investigation as soon as possible.
Costing taxpayers tens of billions of dollars each year, Medicare fraud is among federal authorities’ top priorities for reducing waste in government spending. While some investigations target huge criminal enterprises – such as the Department of Justice’s $900 million takedown earlier this year – far more target individual practitioners and small practices that may have made inadvertent mistakes in their Medicare billing practices.
Regardless of what you believe you may or may not have done, facing a federal Medicare fraud investigation is an extremely serious matter. You need to take proactive measures to protect yourself, and you need to avoid potentially costly mistakes that could lead to civil or criminal charges.
Here is what you need to know:
1. Several Statutes Impose Civil and Criminal Penalties for Medicare Fraud
First, it is important to understand exactly what is meant by the term, “Medicare fraud.” Unlike other federal offenses, Medicare fraud does not describe a single illegal act. Rather, it refers to a broad range of conduct that can be charged as either a civil or criminal offense under a variety of different federal laws. Depending upon the specific allegations involved in your investigation, you could potentially be facing charges under:
- Anti-Kickback Statute – The Anti-Kickback Statute prohibits payment of compensation or remuneration for healthcare service referrals when the payment is derived from a Medicare reimbursement.
- False Claims Act – The False Claims Act is a broad federal statute that prohibits submission of false or fraudulent claims in connection with any request for Medicare reimbursement. “False or fraudulent claims” include those which involve upcoding, unbundling of services, billings for medically unnecessary services, and a wide range of other improper Medicare billing practices.
- Healthcare Fraud Statute – The general healthcare fraud statute prohibits “knowingly and willfully” executing or attempting to execute a scheme designed, “(1) to defraud any healthcare benefit program; or (2) to obtain, by means of false or fraudulent pretenses . . . any of the money or property owned by, or under the custody or control of, any healthcare benefit program.”
- Stark Law – While narrowly limited in its application, in recent years the Stark Law has become a key federal law enforcement tool in cases involving improper Medicare billings in connection with physician self-referrals.
2. The Affordable Care Act (Obamacare) Provides New Tools for Pursuing Medicare Fraud
With the passage of the Affordable Care Act in 2010, federal law enforcement authorities gained unprecedented access to new tools designed to aid in the government’s fight against Medicare fraud. This includes data-driven, “predictive” technology that is designed to analyze Medicare billing trends and statistics in order to identify anomalies that may be indicative of fraud.
Unfortunately, while this new technology has proven highly effective, it has also been leading to a large number of investigations targeting psychologists and other healthcare providers whose Medicare billings, while unique in some way, are not fraudulent whatsoever.
If you are currently under investigation for Medicare fraud in California, there is a decent chance that your investigation was spurred by the government’s new predictive technology. When you engage our firm to represent you in your investigation, one of our top priorities will be to challenge the reasoning behind the government’s investigation and provide legal justifications for any billing “anomalies.”
3. Medicare Fraud Can Be Charged as a Civil or Criminal Offense
Under the statutes we listed above, Medicare fraud can be charged as both a civil and a criminal offense. The penalties for Medicare fraud vary depending upon the specific allegations and statute involved. For example, under the False Claims Act, potential penalties include:
- Civil Penalties – Recoupment requests, treble (triple) damages, fines of $11,000 per false claim, disqualification from future participation in Medicare.
- Criminal Penalties – Potentially hundreds of thousands of dollars in fines depending upon the scope and nature of the alleged offense, plus five years in federal prison for each charge.
Under the federal healthcare law, criminal penalties can include decades behind bars, and the Affordable Care Act increases the financial penalties by 50 percent for offenses involving over $1 million in fraudulent billings.
4. Common Mistakes Can Jeopardize Your Medicare Fraud Defense
When facing a federal Medicare fraud investigation, just as important as knowing what to do is knowing what not to do. Here are five common mistakes you need to avoid in order to protect your rights:
- Talking to the Investigators – You should not speak with any investigator from any agency without legal representation. These investigators are extremely skilled at what they do, and you could easily jeopardize your defense by sharing damaging information that you were not legally required to disclose.
- Talking to Anyone Other than Your Attorneys – Not only do you want to avoid talking to the investigators, but at this point you need to avoid talking to anyone about the investigation. If you share incriminating information, your family members, colleagues, neighbors, and employees could all potentially end up being forced to testify against you in court.
- Providing Patient or Billing Records to the Government – While you may ultimately need to disclose certain records pursuant to a valid subpoena, far too often targets of federal investigations unknowingly share records that they are entitled to withhold. You should not respond to any informal or formal request for records without first obtaining the advice of an experienced attorney.
- Improperly Withholding or Destroying Information – However, you also need to be extremely careful to avoid withholding or destroying information (whether intentionally or inadvertently) that you may be required to provide in response to a federal subpoena. To avoid the possibility of additional charges, it is critical to ensure that you and your employees are crystal clear on the requirements that apply with regard to retention of emails, patient files, and other documents.
- Waiting Too Long to Seek Legal Representation – When facing a Medicare fraud investigation, you want your attorneys to intervene as soon as possible. If at all possible, you want the investigation to conclude without resulting in civil or criminal charges. The sooner your attorneys get involved, the greater the opportunity they will have to challenge the government’s case and present exculpatory evidence so that you do not have to defend yourself at trial.
5. There Are Several Potential Defenses to Medicare Fraud
Just as the specific allegations and potential penalties in Medicare fraud investigations vary widely, there is also a wide range of defenses that psychologists facing federal investigations will commonly have available. Knowing which defenses apply – and how to assert them effectively – will require the assistance of healthcare fraud defense attorneys who have extensive experience resolving Medicare fraud investigations without civil or criminal charges.
Depending on the specific allegations and the unique facts and circumstances involved in your case, some of the types of defenses you may have available include:
- Constitutional defenses (e.g., evidence obtained through an illegal search or seizure)
- Offense-specific defenses (e.g., you lacked the necessary knowledge or intent to be charged under the False Claims Act)
- Statutory defenses (e.g., a safe harbor or exception insulates you from liability)
6. Intervening Early Can Be Critical to Avoiding Federal Charges
This point cannot be emphasized enough: If you are being investigated for Medicare fraud, you need to intervene at the earliest possible stage. By the time you find out that you are under investigation, the government is already building its case against you. If you delay in seeking legal representation, you will only be allowing the government to get further ahead on the road toward pressing federal charges.
7. You Need to Choose a Law Firm with Relevant Experience
When facing a Medicare fraud investigation, not only do you need attorneys with experience, but you need attorneys with relevant experience in federal healthcare investigations. The federal healthcare laws are extraordinarily complex, and an attorney who is not already intimately familiar with these laws and the Medicare billing rules and regulations is not going to be able to hit the ground running.
At Oberheiden & McMurrey, LLP, our team consists of experienced healthcare fraud defense attorneys and former federal prosecutors who have a long and favorable track record in Medicare investigations. We know the issues involved in your case, and we know how to use the law to your advantage. If you are under investigation for Medicare fraud, you do not have time to waste. For a free, confidential case evaluation, contact us today.
Are You Facing a Medicare Fraud Investigation in California? Schedule a Free Case Evaluation Now.
The Oberheiden & McMurrey, LLP is a national healthcare fraud defense law firm that represents psychologists, as well as other specialists such as cardiologist, throughout California in Medicare fraud investigations. To learn more about what we can do to protect you, call (888) 727-0472 or request a free consultation online today.