The Healthcare Fraud Group Achieves Clients' Desired Goals In FCA Cases
By some estimates as much as $230 billion is lost to Medicare and Medicaid fraud every year. This represents a major factor in the endlessly increasing price of healthcare, and a serious obstacle for the continuing provision of top-quality care to all Americans.
Since the 1970s, healthcare costs have skyrocketed by more than five times when adjusted for inflation. These cost increases threaten the stability of America’s healthcare system as a whole, and ultimately the very health of the country. A leading contributor to these sharp cost increases has been healthcare fraud.
As a result of the huge sums of money that are consumed by Medicare and Medicaid fraud, multiple government agencies have been given mandates to aggressively prosecute those who perpetrate these crimes. Because of the important public interest that curbing healthcare fraud represents, these enforcement actions are not only designed to recoup losses and punish offenders, but also to serve as exemplary lessons to others who may be considering going down the same treacherous path.
The Federal False Claims Act is the most common tool that agencies such as the Center for Medicare and Medicaid Services, the Office of the Inspector General, the Department of Justice, the FBI, and others use to go after providers who are perceived to be engaging in fraudulent activity.
While it is aimed at accomplishing necessary goals and is usually wielded with good intentions, aggressive False Claims Act enforcement has caught many innocent parties in its dragnet. Much of the government’s enforcement activities revolve around generating large sums of money. While the Act allows for both criminal and civil penalties, only in the most egregious cases are jail sentences typically handed down. Draconian civil penalties are imposed far more often. These can put businesses in jeopardy or put an end to an otherwise stellar career in the medical profession.
If you’re targeted, contact a False Claims Act lawyer as quickly as possible
If you believe that you may be under investigation for a fraudulent claims act violation, or if you have been charged or fined under any healthcare-fraud-related statute, you need to contact an experienced False Claims Act attorney as soon as possible.
At the Healthcare Fraud Group, we specialize in offering the strongest possible defense to our healthcare clients when they are facing Fraudulent Claims Act proceedings. We have helped numerous clients walk away without fines or jail time. However, time is of the essence when any agency charged with healthcare oversight initiates a False Claims Act investigation or proceeding against you. The sooner you get in touch with us, the more latitude we will have in helping you reach a satisfactory outcome.
Even in the earliest stages of a fraud-related investigation, an expert False Claims Act attorney can fight on our clients’ behalf, asking for injunctions against civil investigations demands. The Healthcare Law Group’s many knowledgeable and experienced False Claims Act attorneys have worked both sides of the courtroom, many having once been district attorneys and federal prosecutors within the government’s fraud-fighting apparatus.
We know every trick in the government’s book and every tool in its arsenal. We will use that knowledge to put up a strong defense on our client’s behalf, injecting doubt into the government’s arguments and damaging the credibility of any party that may harbor ulterior motives, such as profit or retribution.
What kinds of activities cause healthcare professionals to run afoul of the Fraudulent Claims Act?
The False Claims Act, also known as the Lincoln Law, dates back to the Civil War. It was passed as a way for the government to punish those who defrauded it, recouping losses and discouraging similar acts in the future. Today, the False Claims Act has taken on new life, becoming one of the primary tools in the arsenals of government agencies for the purpose of fighting the specific crimes of Medicare and Medicaid fraud.
Any of the following activities can put a healthcare professional or their practice at risk of incurring penalties under the False Claims Act:
- Billing for services that were never rendered
- Providing medically unnecessary services or products
- Unbundling – billing as individual codes those services which are supposed to be bundled into a single code
- Upcoding – billing a lower-cost service as if it were a more expensive one
- Failure to render an appropriate quality of service
- Failure to properly follow established protocols where the result is a monetary loss to the government
Billing the government for services rendered to patients who either never existed or were never clients of the practice in question
There are many other activities that potentially fall under the False Claims Act. Broadly speaking, any time a practitioner knowingly engages in an activity that results in a loss to the government, they are in violation of the False Claims Act and are guilty of healthcare fraud. However, even acting recklessly or being in a position where one should have known or had a duty to know that the billing activity was likely to result in a loss to the government can be enough for a conviction or the imposition of steep fines. This last situation would fall under the concept of due diligence. In many cases, failure to render industry-standard care could potentially open up a medical professional to charges of False Claims Act violations.
Still, it is not realistically possible for healthcare professionals to eliminate all mistakes that can result in a loss to the government. Nor is it possible to eliminate all cases of incompetence, or even negligence. Incompetence or negligence, while reflecting poorly on a medical practice, have been generally found in the relevant case law not to constitute a criminal or civil offense.
This is another area where the Healthcare Fraud Group can significantly raise our clients’ chances of prevailing in court without penalties or jail time. Even in cases where systematic losses have occurred to the government, our lawyers have been able to raise serious doubts as to whether our client was acting in a truly reckless or wanton fashion, versus merely being incompetent or negligent when it came to the issue in question.
At the Healthcare Fraud Group, we have a False Claims Act lawyer to serve you who possesses in-depth knowledge and extensive experience in dealing with such cases. We understand things like medical coding, diagnostics-related groups, and common clinical protocols inside and out. Furthermore, our false claims attorneys are experts in the techniques and processes used by government investigators. Even when clients face serious evidence against them, our false claims attorney can often strike a deferred prosecution agreement, resulting our clients remaining financially solvent and out of jail.
The False Claims Act carries catastrophic penalties
Because the crime of healthcare fraud quite literally threatens the very lives of the public, it has been deemed a serious crime by the legislative, executive, and judicial branches. As such, the penalties that are carried within the Act can be severe.
Any person or business that has been found in civil court to have fraudulently submitted claims to government healthcare agencies can receive a penalty of up to $11,000 per instance imposed. Additionally, damages equaling up to three times the loss to the government can be awarded.
While these amounts may not seem substantial at first glance, the fact is that many cases involve literally thousands of allegedly fraudulent claims. This has meant that some of the largest fines in recent history have been imposed under the False Claims Act, with one healthcare conglomerate being required to pay more than $150 million in damages. Numerous other companies have been sued for eight and nine-figure sums.
If the case is pursued as a criminal matter, healthcare workers who are found guilty of submitting fraudulent claims can be imprisoned for up to five years. A $250,000 fine for individuals or a $500,000 fine for corporations may be levied.
The False Claims Act allows for qui tam suits
The term qui tam is a synecdoche for a Latin expression that means to sue for oneself and on behalf of the king. In other words, qui tam suits are brought on by civilians in the name of combating fraud against the government. These private-citizen litigants are granted an incentive to bring suit against government-defrauding malefactors by allowing them to share in whatever awards are ultimately granted. Most of the time, successful qui tam suits will result in 15 to 30 percent of the award going to the civilian who brought the suit.
The False Claims Act has always contained a qui tam provision. In the context of healthcare fraud cases, this means that almost anyone who has detailed knowledge of fraudulent activity that is resulting in a loss of government healthcare resources can bring suit so long as they actually possess actionable information that is not already public knowledge.
In practice, qui tam suits are usually initiated by medical insiders who then hire lawyers that specialize in such cases. Since the awards in these cases can be enormous, False Claim Act cases that have arisen from qui tam lawsuits have exploded in number.
In 1987, there were only 30 qui tam lawsuits stemming from the False Claims Act. By 2013, that number had jumped to more than 700. While this phenomenal growth of qui tam healthcare-fraud suits has undoubtedly had some positive effects on combating losses to the government, it is equally certain that many innocent parties have been caught up in the wide net cast by profit-seeking attorneys taking on cases of dubious merit.
Knowing if and when you are under investigation
Qui tam lawsuits are typically initiated when a whistleblower, also known as a relator, approaches a law firm that specializes in such cases with a claim of malfeasance by a participant in the Medicare or Medicaid system.
The case is then filed in court. If the case has merit, the relevant government agency will begin an investigation into the claims. At this point, the case will be sealed, meaning that none of the proceedings will be made public. In fact, all participants in the case may be barred from discussing it at all outside of certain restricted channels. The defendant will often have no idea that they are named in a sealed case.
However, that often changes quickly. If the case is adjudged to have merit, then the relevant government agency will begin an investigation into the claims. The investigatory phase can last a very long time. A typical time frame is between one and two years, but some False Claims Act investigations have taken a decade or longer.
During the investigation, the defendant will almost always become privy to a number of clues that they are likely being investigated by the government. Every healthcare practitioner should pay close attention to the following possible signs that a False Claims Act investigation may already be underway against them:
Any employee, current or former, of your practice tells you that they have been contacted by federal investigators about their time with your business. One of the most common investigatory methods for government agencies in the course of looking into possible False Claims Act violations is the deposition of workers within an office that has been targeted.
- You yourself are contacted by any law enforcement official, even if they approach you in an unofficial capacity.
- Current or former patients let you know that they have been questioned by government agents.
- You receive any official letters or subpoenas that stem from a False Claims Act case.
- You become aware that any other clinicians who operate in your geographic area and medical specialty have become targets of government investigations. The government has often targeted entire sectors of the medical profession when systematic fraud has been uncovered.
- You or your company’s bank accounts are frozen for unclear reasons. The investigation stage is the best time to start formulating a solid defense.
If you are facing actions against you under the False Claims Act, hiring a competent legal team at any point in the process is dramatically better than trying to stick it out alone. However, the earlier you call an experienced team of lawyers with a winning track record, like the Healthcare Fraud Group, the more we can do to limit the damage and reach a workable conclusion.
In many cases, we have been able to achieve resolutions for our clients where there was no penalty of any kind. In other cases, deferred prosecution agreements have meant that so long as our client remains in compliance with existing Medicare and Medicaid laws, they will not face penalties for their prior breaches.
Part of the benefit of bringing an experienced legal team on board early in the process is the ability to make powerful tactical plays even before any formal action has been taken against the person or entity under investigation. One of the most powerful and frequently utilized tools in the investigators’ arsenal is known as a civil investigative demand, also known as a CID.
CIDs are similar to subpoenas but grant the investigator even more power. In addition to the provision of documentary evidence, people who fall under the purview of a CID may be compelled to provide detailed written answers to questions or to attend an interview in person. An example of the powerful scope of CIDs is that they may be used to effectively depose any person who the investigator reasonably believes may have information that is material to the case, whereas a subpoena is normally only issued to those who were directly involved in the alleged act.
While CIDs are a formidable investigatory tool, they are not a blank check for an investigator to do whatever they want, including going on so-called fishing expeditions for incriminating evidence without any reasonable suspicion. This is an area where an experienced legal team like that of the Healthcare Fraud Group can raise procedural and technical issues in court. In many cases, the entire CID or parts thereof may be rescinded if it is revealed that investigators do not have clearly articulable reasons for needing it.
False Claims Act cases are rarely slam dunks, and most aspects are negotiable
Once a qui tam investigation has been completed, the government will decide whether or not the facts that it has uncovered warrant an intervention. If the government decides to intervene in the case, then the defendant will formally be served with a complaint.
However, most of the time, the government is trying to avoid taking the case all the way through a trial. This is another reason why hiring an expert legal team with a winning track record can maximize the odds of achieving your desired outcome.
Oftentimes, the government’s primary interest will be in seeing that there are no more breaches of the False Claims Act in the future. A critical means of demonstrating that is through the creation of a formal compliance program. The Healthcare Fraud Group has helped hundreds of medical businesses establish such policies and programs. We have the expertise to help our clients deploy compliance programs that will not only prevent future statutory violations, but will also significantly improve the client’s odds of a successful resolution to their current False Claims Act case.
We are also able to provide top-flight legal counsel during government interviews and depositions. We can prevent clients and any of their associates from incriminating themselves or their employer.
Most importantly, the Healthcare Fraud Group has decades of experience in False Claims Act litigation, arbitration, and negotiations. We know what types of penalties usually result from any given category of False Claims Act violation. We will negotiate with purpose and skill on behalf of our clients, positioning them to fully mitigate any damages that will be incurred through fines and penalties.
Our goal is always to protect our clients from any form of incarceration. Prosecutors know that we are fully prepared to take a case all the way through a jury trial if that is what we deem to be the best course course of action for our client. Since our reputation for going all the way precedes us, prosecutors and government regulators usually favor quickly reaching a deal with us that will dispose of the matter.
The last thing that prosecutors want is to spend millions of dollars investigating and litigating a case only to lose, outright, at trial. This gives the Healthcare Fraud Group and our clients a significant advantage at the negotiating table.
If you do end up going to trial, stick with the proven winners of the Healthcare Fraud Group
In the unlikely event that a deal with the prosecutors or regulators cannot be reached and your False Claims Act case does proceed to trial, the Healthcare Fraud Group is a formidable ally to have fighting on your side.
Our team is comprised of experienced attorneys from both sides of the courtroom, having worked as investigators, prosecutors and regulators ourselves. Our attorneys possess deep expertise in Current Procedural Technology codes, diagnosis-related groups, and clinical practice guidelines. Additionally, we are adept at raising serious doubt wherever assertions of reckless indifference or knowing fraud are made.
We know our way around healthcare law like few others. We will aggressively use the Federal Rules of Civil Procedure to secure favorable resolutions for our clients. Many times, plaintiff lawyers are lazy in filing complaints. This can often result in claims of fraudulent activity for which there is only weak evidence or none at all. We will scour the opponent’s case and find any oversight, weakness, or procedural fault, then exploit it to the fullest possible extent.
Additionally, the plaintiff or prosecution must show that the government’s loss was the product of knowing fraud. By definition, this cannot include negligence or incompetence. This is a high bar for the litigants to clear. Our team is particularly adept at raising doubt in the face of such difficult to prove allegations.
With more than a century of combined legal experience, the Healthcare Fraud Group can help you surmount any legal challenges you may be facing, especially those stemming from alleged violations of the federal False Claims Act.
In addition to providing winning legal advice through every phase of a False Claims Act case, we can help your practice develop an all-encompassing compliance program that will shield you from such actions in the future. If you have been targeted by a False Claims Act investigation, are the subject of litigation, or are facing fines and criminal charges, please contact the Healthcare Fraud Group today.