HEALTH CARE FRAUD CHARGES

There are many different health care fraud offenses that can be brought in federal court. Below are the most common along with offenses that subject you to civil liability which may be combined with the federal offenses.  Often prosecutors pursue both avenues in their aggressive approach to combat health care fraud.

Criminal Health Care Fraud (18 U.S.C. § 1347) – To prove criminal health care fraud, the government must produce evidence showing that the defendant knowingly and purposefully 1) executed a scheme to defraud a health care benefit program or 2) used false statements to obtain funds held by federal health care programs (Medicare, Medicaid).

Anti-Kickback Statute (42 U.S.C. § 1320a-7b) – To prove criminal anti-kickback charges, the government must provide evidence that the defendant knowingly and purposefully 1) offered or received anything of value and 2) it induced or rewarded referral of Medicare or Medicaid business.

False Claims Act (18 U.S.C. § 287) – To prove criminal charges for false claims, the government must provide evidence that the defendant knowingly and purposefully 1) made a claim or statement to get the government to pay money on a claim and 2) that the claim or statement was false or fraudulent.

False Claims Act (31 U.S.C. § 3729) – The government can also bring a civil claim for false claims violations as noted above.  It also allows a private citizen or whistleblower to bring a case on behalf of the government.

Stark Law – Physician Self-Referral Law (42 U.S.C. § 1395nn, 42 CFR Subpart J) – Unlike the Anti-Kickback Statute, the Stark Law is not a criminal statute.  However, like the False Claims Act, the government may bring civil charges.  Violations require no intent which means even accidental or unknowing violations can subject a medical practitioner to steep civil penalties.  Self-referral violations require proof that the defendant 1) made a referral for health services to an entity the physician (or immediate family) has a financial relationship and 2) the entity submitted a claim for payment resulting from the referral.  “Financial relationship” is interpreted broadly to include direct, indirect, ownership or investment as well as immediate family financial interests.

Health Care Fraud Conspiracy (18 U.S.C. § 1349) – To prove health care fraud conspiracy, the government must provide evidence that 1) two or more people agreed to a common plan, 2) the defendant knew the unlawful purpose, and 3) joined willingly with the intent to further the unlawful purpose.   The plan does not have to be successful to be convicted of this crime.  While there are several different conspiracy laws that may apply in health care fraud, this is the one we see prosecutors use most often.

Wire and Mail Fraud (18 U.S.C. § 1341, 18 U.S.C. § 1343) – To prove wire or mail fraud, the government must provide evidence that 1) there is a scheme to defraud, 2) U.S. mail was used in the scheme or 3) interstate telephone or electronic communications were used to further the scheme.  These laws cover all types of fraud, not just health care fraud.  Although these laws cover similar conduct as the Health Care Fraud statute, prosecutors like to use these offenses to threaten a defendant with lengthier sentences.

Conspiracy to Defraud the Government with Respect to Claims (18 USC § 286) – To prove conspiracy under this law, the government must provide evidence that the defendant knowingly 1) engaged in a conspiracy with another to obtain payment from the government, 2) the claim was false, 3) the defendant knew it was false, and 4) joined willingly.  Again, the plan does not have to be successful to be convicted of this crime.

Civil Monetary Penalties Law (CMPL) (42 U.S.C. § 1320a-7a) – This statute gives the government authority to seek civil monetary penalties for various health care fraud violations noted above.  Often the penalty is three times the amount of the government’s loss.

Penalties and sentences will vary depending on which statutes were violated but you can face severe penalties if convicted of health care fraud, anti-kickback, false claims, conspiracy, or wire and mail fraud including:

Prison – You can be sentenced from 1 year to life in prison based on your conviction.  Potential prison terms include:

• Health Care Fraud up to life in prison if fraud results in death; 20 years for serious bodily injury, and 10 years for other violations
• Anti-Kickback Statute up to 10 years for felony, 1 year for misdemeanor
• False Claims Act up to 5 years per violation
• Conspiracy to Defraud the Government with Respect to Claims up to 10 years
• Wire or mail fraud up to 20 years (more if done during declared disaster or emergency)

Fines – Criminal and civil fines can add up quickly under health care laws.  Actual sanctions will depend on the particular offense and facts surrounding your case.  While the most serious criminal violation could result in a $1,000,000 fine, some fines may be applied on a per service or claim basis.  Fines can also be assessed up to three times the government’s program losses or include attorney fees.  An experienced lawyer can help navigate complexity in health care law sanctions.  Examples of fines included in the criminal statutes are:

• Anti-Kickback Statute up to $100,000 or $500,00 for illegal use of beneficiary identification
• Stark Law penalties vary by violation ranging from $15,000 per service to $100,000

Restitution – You may be required to refund payments received illegally through fraud or from self-referrals under the Stark Law.

Loss of Medical License or DEA Registration – Convictions for Health Care Fraud or Anti-Kickback Statute violations can lead to loss of your medical license or DEA registration.

Loss of Medicare/Medicaid Program Participation – Convictions for Anti-Kickback Statute and Stark Law violations can result in debarment from participation in the federal Medicare and Medicaid programs.

Asset Seizure and Criminal Forfeiture – DOJ, FBI or DEA may seize your assets while under investigation for health care fraud and you may lose ownership under criminal forfeiture.

National Practitioner Data Bank (NPDB) – Negative actions including convictions must be reported in accordance with the Health Care Quality Improvement Act of 1983 which could affect participation with other insurance plans.

There are several possible defenses to health care fraud charges:

Lack of Intent or Mistake – To commit fraud, you must have the intent to cheat the government or insurer out of money. If you acted in good faith but made a mistake, accidentally omitted information, made an error, or billed improperly, you cannot be convicted of health care fraud.

Insufficient Evidence – The government must have evidence of your intent to defraud and it must have enough evidence to prove beyond a reasonable doubt. Without sufficient evidence, you cannot be convicted.

Compliance Program – An experienced lawyer can help you develop a thorough compliance plan to detect or deter fraudulent activity in your practice or business. Evidence of a comprehensive compliance plan can be used to show you lacked intent to engage in health care fraud.

Consent – You do not commit fraud if you were granted permission for your actions by the alleged victim. Evidence you were given permission to do what you are accused of is a defense against the charges.

Anti-Kickback Statute Safe Harbors – There are several “safe harbor” provisions including certain investments, space or equipment rental, personal services, management contracts, sale of practice, referral disclosures, warranties, discounts, group purchasing arrangements, waivers, some types of price reductions, practitioner recruitment, some malpractice subsidies, and referrals for specialty services. There may be others based on specific services like ambulatory surgery centers or health centers.

Stark Law Exceptions – Exceptions in the Stark Law may permit physicians to make referrals in limited circumstances. These can include in-office ancillary services, fair market compensation arrangements, non-monetary compensation, and risk-sharing arrangements.   Physicians must be mindful that even though a Stark Law exception applies, if a referral is made in exchange for payment, it could still violate the Anti-Kickback Statute.

Voluntary Disclosure – The agencies that oversee federal fraud and abuse laws have incentives to self-report violations including reduction in payments owed. However, there are risks with self-reporting and an experienced lawyer can help you determine if that is an appropriate avenue for you.

 COVID 19 Waivers – The federal government has implemented COVID-19 waivers which loosen some health care fraud regulations. These may only be temporary, and an experienced attorney can assist in determining if a waiver applies in your situation.

While COVID-19 brought relaxation of some regulations to facilitate delivery of health care services like telehealth, with release of trillions in funding under the CARES Act, the DOJ and OIG will continue to diligently monitor health care for possible criminal abuse. The OIG and HHS have also expressed concerns that fraud could be on the rise particularly related to COVID-19 testing services.

The OIG continues to use Medicare Fraud Strike Force Teams comprised of OIG, DOJ, US Attorneys, FBI, and local law enforcement personnel across the country to analyze data and combine investigative resources to identify and prosecute health care fraud schemes.

You can see the latest health care fraud enforcement actions taken by the OIG. They maintain a list of criminal and civil enforcement, state enforcement actions, CMPs, and corporate enforcement.

As the opioid epidemic rages on, opioid use and prescribing continues to be a top priority for the OIG. The OIG will continue to focus on pharmaceutical companies, doctors, private equity groups and pharmacy technicians to combat fraud and over prescribing.

The government temporarily lifted restrictions on delivery of health care services through tele-health, raising concerns for increased fraud exposure.

Subscribe to The Federal Docket to keep on top of recent cases and important developments in federal criminal law.

Our firm has successfully defended people and businesses charged in health care fraud cases in federal district courts across the country.  We have obtained dismissals, favorable plea deals, and “not guilty” verdicts for our clients in federal criminal trials.  This is critical since a criminal conviction could prevent you from continuing to practice.

Health care law is complicated, and an experienced health care fraud defense attorney can help you navigate these serious charges.  We will use effective pretrial motions to gut or narrow the government’s case before trial.  Over the past 20 years, we have successfully argued many motions to suppress evidence and have helped our clients win their cases even before trial.  If you do make a plea, we will help ensure the plea avoids licensing actions from professional or state licensing boards.

Our firm has the experience and resources necessary to defend even the most complex health care fraud cases.  We have close relationships with former federal agents who we employ as investigators and forensic accountants to assist us in reviewing the extensive medical billing records that are usually a big part of successfully defending these cases. We also hire physicians and other medical experts to review the government’s allegations to show us where the case may be weak and subject to a successful challenge.

If you or someone you know is charged with any type of heath care fraud in federal court, feel free to call health care fraud attorney Page Pate to discuss the case in complete confidence.  We represent clients in Medicare fraud, Medicaid fraud and TRICARE fraud cases in federal courts across the country.

We have successfully represented clients in federal criminal cases across the United States. Our firm has offices in Atlanta GA, Alexandria VA, and Washington DC, and we frequently travel to other federal courts to represent people in serious federal criminal cases.

Read more about our firm’s success in federal criminal cases.

To learn about what happens in a federal criminal case, watch our federal crimes video.

If you want to know how to get the lowest possible sentence in federal court, watch our video on the Federal Sentencing Guidelines.