Health Care Fraud Charges

“I’ve been representing people in federal criminal cases for well over 20 years now. And I’ve seen a lot of health care fraud prosecutions in federal court. And these cases can be very complex. They involve a lot of documents, expert witnesses, and most of the time, the government is alleging a pretty large amount of money was involved in the case. And as a result of that, these cases can carry some pretty significant prison time if someone is convicted. So I thought it might be helpful to go through the basics of health care fraud charges in federal court, what types of crimes are involved, and what are some successful defense strategies that we’ve used to help our clients in these cases.

Well, there are a lot of different types of health care fraud laws in the books, and a prosecutor has a wide variety of different charges to pick from when he’s wanting to indict someone or charge someone with health care fraud. The first is the basic health care fraud statute. And this is a law that basically prohibits someone from making a false representation or promise with an intent to defraud a health care program. Now, the promise has to be something important, it has to be material, and it has to be false. And the person is making this promise with an intent to deceive or an intent to cheat the health care program out of money. Now, the health care program, under this law, can include Medicare, Medicaid, Tricare, but also private insurance companies, like Blue Cross and Blue Shield. What’s important here, the critical elements, is that false statement with the intent to defraud.

Now, if somebody is convicted of this offense, they’re looking at a maximum punishment of 10 years in prison, but the specific amount of time will usually be mostly determined by the federal sentencing guidelines. And in a health care fraud case, like any case involving money, the sentence is going to be longer, depending upon the amount of money involved. There’s more money, more alleged fraud, potentially a longer sentence. Now we’ve done a video on federal sentencing guidelines, so if you want more information about how they work in a fraud case, there should be a link on this page to that video, and feel free to follow it.

The other type of crime that we routinely see in health care fraud cases would be a conspiracy charge. Now in this section, which is Section 1349, I’m specifically referring to health care fraud conspiracies. There are a lot of other conspiracy statutes in the books, but the one we see most often in health care cases would be a health care fraud conspiracy. Now what the government is focusing on in this charge, it is not just that intent to deceive, those false statements, but an agreement between two or more people to get together and to cheat a health care benefit program out of money. So in a conspiracy case, the government will not just go after the top guy, but they’ll try to include everyone, employees, sales people, folks that may have just had a little bit of involvement in the case. They’ll try to wrap them all up in the same case so that they can face potentially the same punishment as the guy at the top. So it can be very unfair, the way the government brings these cases and very dangerous for someone who’s going through it. Now, the maximum punishment for conspiracy is the same as the basic health care fraud statute, up to 10 years in prison.

Now, another crime that we’ll often see charged in these cases would be mail or wire fraud, and that’s basically the same type of case. It’s a fraud case. Somebody makes a false statement or promise with the intent to deceive someone, but you add a couple of different elements here. If it’s a mail fraud case, the person has to use the mail. Either the post office, FedEx, any type of private carrier, the mails have to be used in some way to carry out the fraudulent scheme. Or the person can use wire communications, and that’s everything from the telephone to email, internet chat rooms. That has to be part of the case as well to bring this type of charge. And it sounds very similar to the basic health care fraud case because, again, the government’s focusing on this intent to deceive, this false statement that’s being made. But the government likes to bring these charges in addition to those charges because there’s potentially a higher penalty. There’s up to 20 years in prison for mail or wire fraud, when there’s only 10 years for the substantive offense.

We also see any kickback charges being brought in many of these cases. Now, the kickback law basically punishes a kickback, a bribe, if you will, where a clinic is, say, paying a doctor for referring that clinic patients. Now what’s different about this law than the health care fraud law is it only covers federal health care programs, only programs, insurance programs, that are funded by the government. So if there’s a kickback to a physician involving some bills that will eventually be sent to Medicare, Medicaid, Tricare, then that can fall under the anti-kickback law. And it’s not just money. Let’s say a clinic wants to give a doctor certain benefits, certain properties, certain, you know, considerations. Whatever is given to that doctor in exchange for the referrals can be a violation of the anti-kickback law. Up to five years in prison if you violate this statute. And again, the federal sentencing guidelines will apply.

The government can also charge someone with submitting a false claim in a health care fraud conspiracy case or a general health care fraud case. And a false claim is false billing. Let’s say the health care provider is billing for medical services that were never provided or medical services that were not necessary for that particular patient. Both of those could be a false claim and could be prosecuted under this particular law. Now, we normally see false claims cases where there’s a whistleblower action, a qui tam complaint, where a disgruntled employee, a competitor or someone who’s aware of the alleged fraud has gone to the government, filed a civil lawsuit under seal, and convinced the government to investigate the health care provider. So not only is the person facing the potential criminal penalties, but there’s also usually a civil case that goes along with it. So sometimes we’re defending both the criminal and the civil case at the same time. Up to five years in prison for a false claims act violation.

Finally, there are false statements, and false statements are basically false statements, lies that are made during the course of submitting claims to the government or during the course of an investigation. This particular statute, Section 1001, penalizes or criminalizes a false statement made to a government employee or agent in connection with their responsibilities. So you can make a false statement by submitting a claim, or you can make a false statement if law enforcement officers want to come talk to you about a particular investigation. And this is a good reason why we tell all of our clients, whenever an investigator comes knocking on the door and wants to talk to you about a potential investigation, talk to a lawyer before you say anything, because you may have done nothing wrong, but the things that you say to that agent can be used against you in ways you will not imagine. And in many of those interviews, they’re not recorded. They’re simply based on the agent’s notes of what was said. So we always encourage people to be very cautious about that and tell the agents to take a break, call a lawyer, and take some time to think about it before you agree to an interview.

Now, these are basically the types of crimes that the government uses to prosecute these cases. What are some defenses? What we’ve found in almost every federal criminal case, and it’s especially true in health care fraud cases, that effective pretrial motions can make a big difference in the case. One of the motions that we try to always file whenever there’s any type of search is a motion to suppress. Now we can try to suppress searches of a business or a house. We can try to suppress searches of computer information that was obtained by the government. We can also try to suppress wiretaps, and we’re seeing more and more wiretaps being used in health care fraud cases. That used to be reserved for drug cases, racketeering cases, public corruption. We now see them in health care fraud cases. And the government has to follow very specific guidelines when they use a wiretap. And we’ve been able to successfully suppress some of those recordings, and it made a huge difference to the trial.

Another type of motion that we’ll consider in many cases is a motion to sever or split the cases. We’ve seen the government go after a particular health care provider. They’ll charge the owner of the clinic, the top executives, but even the folks way down the line, the employees who were just doing their job. We don’t think it’s fair necessarily for those employees to be sitting at the same table with the boss who may have committed some type of fraudulent offense. So we try to convince the judge in a motion to sever that, you know, you can’t try these cases together. They’re very different cases. It would be prejudicial to our client to be sitting next to the person who you may have a lot of evidence against. So we file these to try to convince the judge in the right case to split the cases into two.

Another type of motion that we’ll file is a motion in limine, and that’s basically a pretrial motion to try to get the judge to either exclude evidence we don’t want presented at trial or to allow us to admit evidence that we want before the trial even starts. We usually see motions in limine where we’re talking about expert witness testimony. Say the government has some complicated statistical analysis that they want to bring in to show that fraud was committed in this case. We want to challenge that. We want to do it early. Even if we lose that motion, we’ll likely have a hearing, and we can find out more about the government’s case, cross-examine their expert on the stand, and that helps if we end up going to trial. We’ll also use motions in limine to try to exclude what the government considers similar conduct. Let’s say there’s some unethical conduct in our client’s past. They want to bring it into this case basically to dirty him up even though it has nothing to do with the charges. We want to try to keep that out, of course, and a motion in limine is a good way to that.

Of course, in every health care fraud case, you want to consider expert analysis of the medical records, and we do this in two ways. In almost every health care fraud case, we’re talking about a lot of records, a lot of billing records. And we have very good forensic accountants who will review those records and make sure that the analysis that the government is giving us is accurate. You can’t just rely on what the government tells you is in these records because they’re not normally gonna investigate each and every transaction to determine if it’s true or false. What they’re gonna do is take a statistical sampling of billing records, vendor records to try to allege a health care fraud case. We gotta dig into that. We have to drill down into those records. And we do it by using good forensic accountants, one who’s a former FBI agent and very effective for us in the past.

The other type of expert analysis we’re gonna do in almost all of these cases will be a medical expert. If the government is alleging that the claim is based on a procedure that was not medically necessary, we need to have a doctor review that. And many times the doctor will support our client’s view that that particular treatment or procedure was necessary and was important and was appropriate to be billed. Now an independent investigation of all witnesses is critical in any federal criminal case, really, in any criminal case, but it’s especially true in a health care fraud conspiracy case because the government is gonna be relying on disgruntled employees, competitors in the field, people who have a motivation to make a false statement, people who have a motivation to lie. Many times they’ll also be working with alleged co-conspirators or co-defendants who are trying to cut a deal. Well, we need to find out everything we can about these folks so that when we get to trial, we can let the jury know why these people are testifying and why what they’re saying should not be entitled to any credibility or any legitimacy at all. And we do this, of course, by using our investigators and doing it early, not waiting until it’s time for trial, but getting out there once the case has been brought, find out what these witnesses are really saying and find out more about their background.

Now reputation and character evidence is also critically important in any trial. Our clients are usually good people, and they’ve done a lot for their community. They’ve usually worked very hard and achieved professional success in their chosen career. We want the jury to know about that. And so we will often get people who are peers, other health care providers, or people who have worked in the community alongside our client to be prepared to testify about their reputation in the community, their reputation among the medical community. And all of that is important because, remember, in any case like this, where there’s a health care fraud allegation, the government’s trying to prove that the person is a fraudster, a person who wants to cheat people. So if you have good positive character reputation evidence, you gotta get it in front of the jury. And again, you can’t wait till the night before trial. You have to develop this evidence early. And this evidence can also be useful even if you’re not going to trial and trying to work out a reasonable resolution to the case. The judge needs to know everything good about your client, because the government is gonna tell them everything bad.

So I hope this has been helpful to go through the basics of health care fraud charges in federal court and to talk about some of the defenses that we’ve used in the past. But these cases can be incredibly tricky. So if you’re going through it or you know someone who is, you probably have many questions. I’ve handled many of these cases in federal district courts across the country. So if you have a question, give us a call, and I’ll do my best to help.”