What Health Care Providers Need to Know About Federal Health Care Fraud Charges

The Department of Justice has been putting a lot of focus on health care fraud cases. For example, in 2020 the DOJ recovered $3.1 billion after a series of successful health care fraud investigations.

Fortunately it’s really not possible to accidentally commit this form of fraud. Most forms of fraud require some sort of deliberate action and turn into big, lucrative rings of business.

Examples of Health Care Fraud

  • Soliciting, receiving, offering, or paying bribes or kickbacks for referrals.
  • Billing for services that are more complex or expensive than the services actually provided. 
  • Billing for services that weren’t actually furnished, including for appointments patients do not keep.

Here are a few examples from the headlines.

  • A West LA Pharmacy paid $4.4 million in restitution for a kickback scheme after providing doctors with preprinted prescription script pads that offered options to maximize insurance reimbursements. They then gave these doctors a cut of this excess. They also misrepresented that patients had paid copays when sending claims to the insurer.
  • A $6.9 million Covid testing scheme involving paying kickbacks and bribes to obtain doctors’ orders for medically unnecessary lab tests billed to Medicare, often by bundling them with other tests like genetic tests and additional respiratory tests. 
  • A $784 million healthcare fraud, illegal kickback, and tax evasion scheme. The defendant solicited illegal kickbacks and bribes from durable medical equipment (DME) suppliers and marketers in exchange for orders for DME braces and medications. They paid doctors to write medically unnecessary orders for these braces and medications that they then billed to Medicare. 

Laws Prosecutors Use

Prosecutors have multiple laws they can use to prosecute health care fraud cases.

  • The False Claims Act, which makes it illegal to knowingly submit false claims to the government or cause another to submit a false claim to the government, or knowingly makes a false record or statement to get a false claim paid by the government or to avoid paying money to the government. 
  • The Health Care Fraud Act, which covers any scheme to defraud any health care benefit program or any attempt to do so in connection with any delivery of payment of healthcare benefits or services. 
  • Existing fraud and kickback laws.
  • RICO, or organized crime, laws.
  • EKRA, the 2018 Eliminating Kickbacks in Recovery Act which prohibits willingly soliciting, receiving, offering, or paying remuneration, directly or indirectly, in return for the referral of a patient to, or in exchanges for an individual using the services of a recovery home, criminal treatment facility, or laboratory if the services are covered by any public or private insurance plan. 

Defenses for Health Care Fraud Charges

The prosecution needs to be able to show that you knowingly and willingly participated in the fraud. Lack of intent is an important defense, and if your business has instituted any sort of compliance program meant to deter health care fraud we can use that to help defend you. 

We can also show that any procedures you are accused of overbilling or recommending unnecessarily was actually medically necessary and was actually performed.

Finally, we might be able to show there is insufficient evidence to prove the prosecution’s case, though this defense is rare. The federal government usually takes a lot of time and uses a lot of resources to investigate anyone they wish to investigate.

There may be other strategies that will be worth pursuing in your specific case. The earlier you involve a qualified defense attorney the better equipped you’ll be to bring your case to a positive conclusion.

See also:

What is a Kickback and Why Is it Illegal?

4 Mistakes to Avoid If You’re Under Investigation for White Collar Crime

Accused of Insurance Fraud?