The National Health Care Anti-Fraud Association reports that Medicare fraud costs the U.S. economy $100 billion annually. Investigators at the FBI and OIG are now targeting healthcare professionals for Medicare fraud, backed by greater federal resources to recoup the government’s losses.
Understanding the potential defenses for Medicare fraud charges is crucial in protecting your professional reputation and securing your freedom. Let’s review the defenses for Medicare fraud charges.
Insufficient Evidence
The government must possess the evidence to prove its intent to commit Medicare fraud beyond a reasonable doubt. It will be your Medicare fraud defense lawyer’s role to help highlight potential evidentiary flaws, including doubts about the authenticity of billing documents, and tenuous details regarding your knowledge of the alleged fraud.
Lack of Intent
Lack of intent is a defense healthcare practitioners can use when a staff member makes a billing mistake or accidentally omits patient information on a government form. The prosecutor must prove the act was intentional and meant to defraud Medicare.
Healthcare Law Compliance Programs
Initiating a compliance program within your healthcare firm can help prove that you did not intend to commit fraud and took proactive steps to comply with the law.
Exceptions to the Stark Law
The Stark Law is a federal law that prohibits self-referrals by physicians when the physician or a family member has a financial interest in the referred service. There are exceptions to the Stark Law, which permit physicians to refer patients for in-office ancillary services and enter into non-monetary compensation agreements. However, the Anti-Kickback Statute might still apply with an exception under the Stark Law.
Safe Harbors in the Anti-Kickback Statute
Safe harbors within the Anti-Kickback Statute can include recruitment incentives, management contracts, price reductions, and referrals for specialty services. The circumstances under which these safe harbors come into effect require analysis from a skilled Medicare Fraud defense lawyer, such as Lowther | Walker, who can review your case and determine whether safe harbor provisions might apply.
Self-Reporting & Voluntary Disclosures
Self-reporting a potential Medicare fraud can help reduce the potential penalty you face under federal law. The voluntary disclosure process should begin with an experienced fraud defense lawyer who can ensure the disclosure does not lead to further charges.
Steps to Take to Protect Your Reputation and Your Practice in a Medicare Fraud Case
Knowing the defenses available under the law for Medicare fraud charges will allow you to prepare for the next phase of your case. Below are the next steps you should take as you begin gathering your resources and safeguarding your reputation.
Call a Healthcare Fraud Defense Lawyer
Your healthcare fraud defense lawyer is your lifeline. They will help answer your legal questions and use their experience to immediately step in and communicate with the authorities at the OIG and other federal agencies on your behalf.
Prepare Your Team
Your lawyers can help prepare your team for potential interviews and the investigatory process. They can analyze the charges against you and complete their own healthcare fraud investigation to determine the weak points in your defense.
Discuss Your Plea
Discuss your plea carefully with your fraud defense attorney. In cases where there is compelling evidence against you, your attorney can help negotiate a plea bargain. If there are weaknesses in the prosecution’s case, lawyers can help exploit these weaknesses, preventing the case from going to trial or ensuring a not-guilty verdict in court.
Request Your Confidential Medicare Fraud Defense Consultation with Lowther | Walker
Lowther | Walker’s seasoned attorneys have proven experience defending Medicare fraud claims across the United States. We bring powerful Medicare fraud defense leadership to Arizona, Alaska, Florida, Georgia, Alabama, Kansas, Oklahoma, and other states nationwide.
Renowned for winning the largest healthcare fraud case the DOJ has ever prosecuted, the firm’s attorneys are ready to win your healthcare fraud case and defend you aggressively against charges. Request your free, no-obligation consultation with our team today by calling (404) 806-7997 or booking your consultation online.
Medicare Fraud Defense FAQs
How does a Medicare fraud investigation typically begin?
Medicare fraud investigations often begin months or years earlier through data mining by CMS (identifying “outlier” billing patterns), whistleblower lawsuits (Qui Tam) filed by former employees, or routine audits that escalate into fraud referrals.
Which government agencies are involved in these investigations?
A task force of multiple agencies working in tandem, including the OIG (HHS Office of Inspector General), the FBI (conducting surveillance/interviews), the DOJ (prosecutors), and state-level MFCUs (Medicaid Fraud Control Units).
What is the difference between a civil audit and a criminal investigation?
Civil audits generally focus on recouping overpayments with a lower standard of proof (“preponderance of the evidence”). Criminal investigations focus on “willful” intent to defraud, involving search warrants and potential prison time. A civil audit can become a criminal investigation if evidence of intent is found.
What is the “Lack of Intent” defense?
To secure a criminal conviction, the government must usually prove the defendant acted “knowingly and willfully.” A common defense argues that billing errors were the result of negligence, confusion over complex coding systems, or administrative error rather than a specific intent to defraud.
Can a “Good Faith” reliance on counsel be used as a defense?
Yes. If a provider sought advice from a healthcare attorney regarding a business structure or billing practice and followed that advice in good faith, it can be strong evidence against “criminal intent.”
What should I do if federal agents execute a search warrant at my healthcare practice?
Do not obstruct the federal agents (but do not help them interpret documents), send staff home to avoid uncounseled interviews, and call a defense attorney immediately.
Is it possible to settle a Medicare Fraud case without admitting guilt?
Yes. In civil cases under the False Claims Act it is common to negotiate a settlement where the provider pays restitution without formally admitting liability. In criminal cases, however, prosecutors often require a guilty plea. Defense counsel aims to keep the case civil to avoid this.
What is the difference between the Stark Law and the Anti-Kickback Statute?
The Stark Law is a civil, strict-liability statute prohibiting physicians from referring Medicare patients for designated services to entities with which they have a financial relationship. The Anti-Kickback Statute is a criminal statute that prohibits offering or receiving anything of value to induce referrals, requiring proof of intent.
What are the potential penalties for a doctor convicted of Medicare fraud?
Penalties for Medicare fraud can include incarceration of years to decades, criminal fines of $250k+, civil penalties up to $11k+ per false claim, mandatory exclusion from federal healthcare programs for a minimum 5 years, and license revocation.
Can I just pay the money back if I discover an error?
Self-disclosure is a complex strategic decision. While the OIG has a Self-Disclosure Protocol, simply writing a check without following formal procedures can be risky, as it may be viewed as an admission of guilt without the protection of a settlement agreement.