What to Do When Your Healthcare Practice is Being Investigated for Fraud
From all accounts, Healthcare Fraud in the United States has reached gargantuan proportions. The industry itself is a multi-trillion dollar per year money maker and those figures will only rise. But these aren’t the only figures on the rise when it comes to the healthcare industry. Healthcare fraud is seeing a spike in its numbers to record levels. The losses have climbed into the billions even with all the laws in place and a crackdown on a nation-wide level in full effect.
Healthcare fraud happens when a person or company knowingly defrauds a government insurance agency or an insurance company. The schemes involved in healthcare fraud are wide-ranging in their reach. These include:
- Upcoding. This is where a provider uses a higher billing code than the services provided.
- Double billing. A provider will bill both Medicare/Medicaid as well as a private insurance company for the same procedure.
- Billing for appointments that patients have failed to keep.
- Unbundling of codes. This is where a provider will bill an insurance company for each step of a single procedure as if they were separate procedures.
- Performing unnecessary medical procedures.
- Falsifying a patient’s diagnosis.
- Billing for patients who do not exist.
- Kickbacks. This is where a provider receives various items (vacations, jewelry, etc.) for their referrals.
As evidenced, healthcare fraud cuts a very large path through the middle of the industry. Its negative effect on patients, the care given, and the cost to simply have healthcare goes without saying. As a patient, the damage can be catastrophic. But what about the flip side of this. What if you are one of these providers who has found themselves smack dab in the middle of a healthcare fraud situation? What do you do if you’re under investigation for committing healthcare fraud? Before we can answer those questions, let’s look at how these investigations start. How does one fall under the suspicion of healthcare fraud?
- Audits. There could be unusual billing practices or patterns an analyst notices.
- Whistleblowers with inside information initiating Qui-tam lawsuits.
- Complaints regarding providers by patients.
How do you know if you are under investigation?
Any of these things could trigger an investigation which begs the question, how do you know if you are under investigation? Typically, if one is under investigation, this investigation probably started long before the target becomes aware they are being investigated. Those investigating healthcare fraud are under no obligation to notify any person or company that they are being investigated. There is no law requiring any contact whatsoever. So how does one find out? Many times, a person being investigated first finds out when they are served a search warrant either at their office or even their home. Investigators seem to prefer the element of surprise. But then, they also are known to send out a Target Letter or possibly a federal prosecutor will send out a letter informing the target they are now under investigation for healthcare fraud with an invitation to cooperate.
There are other indications that you may be a target of a healthcare fraud investigation. You may be approached by federal investigators. The Department of Health and Human Services’ Office of the Inspector General (OIG) is the law enforcement agency that protects federal health programs such as TRICARE, the VA, Medicare and Medicaid and also beneficiaries. They lead the way with these investigations, and they are very aggressive and very good at what they do. You could be issued a subpoena to produce any and all documents. Prosecutors do issue subpoenas to third parties but if you received one, there’s a strong likelihood that you are the subject of their investigation. There are times federal investigators will bring you in as a witness to possible healthcare fraud. They will make this interview as casual as possible when, in reality, it’s a tactic in which they try to get the target to reveal information which would incriminate. Chances are, though, if one receives a subpoena or federal investigators come knocking at your door, they may already have solid evidence and have built a strong case against your practice or yourself.
The action you take next can be critical
Thankfully, not all investigations result in criminal charges. But never assume. If you receive a letter or a federal investigator shows up, quick action is paramount if you wish to protect yourself. One of the first things you will want to do is accept this reality. The quicker you come to terms that you are being investigated for healthcare fraud, the better it can be in the long run. Many times though, healthcare professionals to include doctors and pharmacists, downplay and outright deny how severe a healthcare fraud investigation is and simply do nothing about it to protect themselves or their business. This can be a grave error on their part. Accept the fact you are under investigation.
Again, time is a key factor here. Do not wait until you are formally charged with healthcare fraud before you seek out and hire a defense attorney. It’ll be very beneficial to have someone help guide you through the investigation. A defense attorney can help you make the best decisions and help so you don’t incriminate yourself. They have a number of objectives when taking on a healthcare fraud case. One main goal is to keep the investigation as a civil matter. This means no criminal charges or investigation. They attempt to maintain confidentiality and protect their clients from damage to their reputation. They also try to negotiate the best outcome possible.
You need to understand what type of investigation you are under. Is it civil or criminal? Without an experienced defense attorney, it may not be obvious. An experienced healthcare fraud defense attorney can also help you understand what type of healthcare fraud you are being investigated for. Is it for billing violations? Kickbacks? They will help you identify and proceed accordingly.
By the time you have a healthcare fraud defense attorney by your side, the federal investigators will already have time on their side as well as information. So, it is of the utmost importance you retain an attorney as quickly as possible. This way it will cut into any advantage the investigators have.
One key aspect of the speed in which you hire a defense attorney is opening lines of communication. The reason this is key is that an experienced healthcare fraud defense attorney will be able to gain insight on which type of investigation they are looking at. This helps formulate a strategy in moving forward. It also tells those who are investigating that you are showing good faith in this matter and you are also willing to compromise. In the long run, this can go a long way in determining favorable options that can even include an investigation dismissal.
Hire An Expert To Save Your Career, Family & Life
Another smart aspect of hiring an experienced attorney is that it helps you from making mistakes, making incriminating statements. Navigating through the maze of subpoenas and other legal documents can be tricky and very difficult. Your defense attorney can do this with ease. If all your communication goes through your attorney, then you can rest assure your rights and well-being will be fully protected. There are many land mines as you move through a federal investigation. There are common mistakes made, so what are these in which you need to avoid?
- Never speak to a federal investigator without your attorney present. This is one of the big mistakes one can make. If you find yourself in a situation without your attorney present, be careful. Federal investigators like to pretend they are asking simple questions in the hope you will incriminate yourself. The simple answer to this is to remain quiet until your attorney arrives.
- Never destroy evidence. Federal investigators will immediately assume guilt. This action is considered obstruction of justice, which is a crime and could result in prison time. There are many ways federal investigators view evidence destruction. They can include deleting emails, deleting electronic or paper files, destroying certain devices such as phones, computers, laptops, personal organizers. You also cannot instruct other people to destroy any of the evidence.
- Never talk about the investigation. Do not speak with anyone but your defense attorney about the impending investigation. As difficult as it may sound, speaking with family, friends, co-workers or employees could really put you behind the eight ball. These people can be subpoenaed to testify against you in front of a grand jury.
- Never post anything related or concerning the investigation on Social Media. Stay as far away from Facebook, Twitter, Snapchat, etc. as it pertains to the investigation. Even if your desire is to reach out and inquire about healthcare fraud or even to seek legal advice concerning this. Again, federal investigators can subpoena any of your online accounts and don’t be surprised when/if they do. They will also trace back any activity you may have had on any of your social media accounts in attempts to use it against you.
With all this in mind, what types of outcome could you possibly see? Well, unfortunately, there is no straight answer to that. The results can run the gambit. It can be very good for you, meaning you still are able to practice medicine, or it can be very bad, which likely means a criminal conviction to include large fines and a prison sentence. But these outcomes are solely based on the many underlying factors described above. The speed with which you react is key. Your ability to be open and honest and to let your healthcare fraud defense attorney speak on your behalf is also key. But again, the outcome will be based on these many factors. These outcomes could include:
- Dismissal. The best result, finding no civil or criminal liability.
- You could be charged with a civil liability but no criminal charge. This means you would be paying a civil settlement which could include monetary penalties as well as recoupment by the offended party.
- You could receive administrative penalties. This could include revocation of your billing privileges, suspended licenses, and Medicare exclusions.
- You could have criminal charges set against you. In this case, you would see anywhere from 0 to 10 years in federal prison for EVERY count of health care fraud you are found guilty of. Along with this, there is also a strong chance of a monetary penalty. The number on this varies significantly.
Healthcare fraud is a serious crime
As the premier law enforcement agency in regards to investigating healthcare fraud, the Department of Health and Human Services’ Office of Inspector General has a wide range of power and skills at its disposal. The billions of dollars recovered by this group show just how serious they are in combating this nationwide dilemma. The OIG has partnered with many federal and state law enforcement agencies to slow down healthcare fraud. Not only is this war on healthcare fraud a nationwide issue, but it has also touched organized crime in a huge way as organized crime has seen a shift from how it conducts its business as the money-making aspect is too large to ignore. But if you ever find yourself where federal investigators have made their presence known, be smart. Get yourself an experienced healthcare fraud defense attorney and carefully follow their lead. Their experience in these matters will help you navigate the dark waters and hopefully bring you out a wiser person on the other side.