Representing Healthcare professionals in Medicaid/Medicare Audits, Investigations, and Criminal Proceedings
Health care fraud prosecution is a top priority for government law enforcement agencies. In the last several years, an alarmingly growing number or healthcare providers who participate in government-funded programs such as Medicare and Medicaid have been investigated, prosecuted, and convicted.
New York criminal defense attorneys at Joseph Potashnik and Associates PC routinely represent healthcare providers on individual and corporate levels in government audits, investigations, and prosecutions related to Medicare, Medicaid, and no-fault insurance payments as well as private insurance fraud investigations.
Under federal and state law and/or contractual provisions, the records of health care providers who participate in government funded health care programs such as Medicare and Medicaid are subject to review by the government.
Corporations with government contracts may have particular contractual obligations to cooperate in a government investigation.
Who Investigates Healthcare Fraud
Government agencies involved in healthcare fraud investigations include the Department of Health and Human Services (HHS) through the Office of Inspector General (OIG) and the Centers for Medicare and Medicaid Services (CMS), Department of Defense through the Defense Criminal Investigative Service, the Department of Justice (DOJ) through the FBI and U.S. Attorney General’s Office.
In New York, the local law enforcement agencies that conduct healthcare fraud investigations are the state Office of Medicaid Inspector General, the local District Attorneys, and New York Attorney General through the Medicaid Fraud Control Unit (MFCU).
Our New York healthcare fraud defense attorneys have handled just about all types of healthcare fraud cases with all of these agencies.
If you are a healthcare provider working with the government-funded programs, you must realize the risk that one day you and your practice may be audited or investigated by the government. Considering the complexity and the extremely confusing nature of Medicare and Medicaid regulations, you may be in trouble even if you did not intend to violate the rules. This could be extremely disruptive to business operations and staff morale. In order to minimize the exposure and business disruption, you must think ahead and prepare a plan that will address this situation. Speaking with our experienced attorneys before agents appear at your door can resolve many issues before they arise. If you or your practice are under audit or investigation by the government, contact us immediately to discuss your matter.
What Triggers Provider Medicaid Fraud Investigations
If you are a Medicaid Services Provider, here are some of the reasons you can be investigated for Medicaid fraud:
- Billing Medicaid for services that have never been provided;
- Falsifying patients’ diagnosis to justify tests or other procedures that aren’t medically necessary;
- Misrepresenting procedures performed to obtain payment for non-covered services;
- Up-coding – billing for a more costly service than the one actually performed;
- Unbundling – billing each stage of a procedure as if it were a separate procedure;
- Filing claims for fake services and medical conditions;
- Filing claims for fake and staged car accidents;
- Coverage claims for non-existent illnesses;
- Filing claims for medical care coverage for staged, fraudulent auto accident injuries;
- Illegal kickbacks;
- Illegal fee sharing
- Billing for services provided by unlicensed personnel in violation of Medicaid rules.
Medicaid fraud attorneys with Joseph Potashnik and Associates are legal experts on Medicaid fraud in New York. We have successfully handled hundreds of Medicaid fraud cases at all procedural stages. If you are a Medicaid Provider and are under investigation by law enforcement, call us today at (212) 577-6677.
The Basics Of Healthcare Fraud Investigations
Your practice might have come under the law enforcement radar in many ways. Once it’s flagged, an investigation will begin and it can continue for months or even years. In many cases investigation targets don’t even know that they are being watched. The agents will review your billing records, subpoena your bank records, speak with your patients or employees. Often, undercover agents would come in to your office hoping that you would conduct some illegal transaction with them. On some occasions, agents may simply raid your office and seize your files and computers.
What Should You Do If You Under Investigation?
When you realize that you are subject to a government healthcare fraud investigation, talk to us before talking to the investigators!
If you are under investigation, the “do-it-yourself” approach is wrong. How the case in handled in the early stage often determines the outcome, including the likelihood of whether criminal charges are filed against you. That is why a consultation with an attorney is absolutely critical before you discuss anything with the investigators.
If you are a healthcare practitioner targeted by law enforcement, you should never do the following:
- Discuss the case with anyone
- Allow anyone to review or remove any documents or files from your office unless they have a warrant
- Alter any documents
- Instruct your staff to lie
These actions will compound your problems and make your defense more difficult.
Your chances of a favorable outcome increase dramatically if you begin you defense in a Medicaid fraud case or health care fraud case. The government has already invested considerable time and resources in gathering evidence and building the case against you. They are ahead of the game and the sooner your defense team gets involved the better your chances. You need an experienced and dedicated legal team of New York healthcare fraud lawyers to beat the fraud investigators at their own game.
New York Medicare Fraud Lawyer
Representing clients in health care fraud cases, including Medicare fraud and insurance fraud cases is an extremely serious task that should be left to the experienced attorneys, not just any criminal defense lawyer.
The U.S. health care system is a complex system of various interactions between payers, providers, and patients, in fact so complex that it is often difficult to tell an honest error from deliberate fraud.
When you or your business is a target of a criminal investigation, our New York City healthcare fraud attorneys will carefully review the details to determine the best line of defense and mitigate future damages.
Healthcare fraud and Medicare fraud prosecution have increased significantly during the last several years both in New York and on the federal level. Our New York City healthcare fraud attorneys have represented physicians, dentists, nurses, therapists, chiropractors, pharmacies, hospitals, billing services, transportation providers, home health agencies, medical equipment suppliers, laboratories, nursing homes, and patients in all types of criminal investigations and prosecutions related to health care fraud, health insurance fraud, Medicare fraud, and Medicaid Fraud.
Whether it is you or your business that is the target of an administrative or a criminal health care fraud or Medicare fraud investigation, do not entrust your career, livelihood, and even your freedom to just any criminal attorney not experienced in complex health care fraud representations. Our New York City criminal lawyers have extensive experience in dealing with
- The Department of Health and Human Services (”HHS”)
- Office of Inspector General (OIG)
- The Health Care Financing Administration (”HCFA”)
- The Department of Justice
- The FBI
Not every criminal probe results in criminal arrests. If we get involved in a case at the early investigation stage, we may be able to prevent criminal charges from being brought in the first place. If charges are brought, we will labor to have them reduced or dismissed. If necessary, our experienced trial lawyers who have handled hundreds of criminal trials will provide the most competent representation at trial.
New York Federal Healthcare Fraud Lawyers
The prosecution of an individual or corporation for Medicaid and Medicare fraud in federal courts can result in severe penalties and consequences. Obviously, the most severe consequence of a conviction is imprisonment. Moreover, a conviction, whether after a trial or through a guilty plea, will lead to collateral consequences which may be by far more damaging that the conviction itself. A corporate provider m will be prohibited from doing future business with the government, leading to bankruptcy of the business. A medical professional will be suspended from participation in the Medicare and Medicaid programs.
Practices that mainly depend on Medicaid and Medicare patients have been completely wiped out following an accusation of healthcare fraud.
Medicare and Medicaid Audits
Attorneys at our firm are often called upon to represent health care practices that are subject to government audits.
Here’s What You Need To Know And What To Do
State and federal regulations permit government agencies and contractors to conduct audits of Medicaid and Medicare billings. Providers may learn about the audit when the government agents appear at your office and demands documents or by mail.
As a participating provider, you have an obligation to cooperate with properly authorized government?s investigations and audits but you also have legal rights and protections that must be asserted in order to minimize your exposure and limit potential liabilities. As soon as you discover that you or your practice are being audited, contact an experienced attorney.
If the government determines that there has been an overpayment, they are likely to demand the repayment of the funds. The repayment demands are usually mailed to the providers. The letter will explain the reason the government believes there was an overpayment and the proposed demand amount. You will expected to refund the money before taking an appeal or requesting a review. If you do not refund the money, the government will hold future payments.
Civil Monetary Penalties
If you submit a fraudulent claim for Medicare or Medicaid reimbursement, you could be subject to a penalty of up to $11,000 per item or service plus an assessment of up to three times the claimed amount. This provision covers the cases in which the government believes intentional fraud was committed as well as the cases where there was no intent to defraud but where the provided acted with deliberate ignorance or disregard.
Criminal Liability for False Claims
Medicare and Medicaid providers are subject to criminal penalties if they knowingly or willfully make a false statement or representation of a material fact in any application for any benefit or payment under Medicare or Medicaid. Such a false statement may include billing for services not provided or misrepresenting the services actually rendered. The criminal provisions require a higher level of intent compared to civil liability statutes. The government must prove that the provider knew of the wrongdoing. However, the law does not require any knowledge of the particular statute. The government only needs to prove that the provider knew that he or she was submitting a false statement.
If you unintentionally submit a claim and receive payment for a service that was not provided exactly as claimed, but you were unaware of this or unaware that a practice was not in compliance with Medicare laws and regulations, you may not have necessarily violated the False Claims statute. However, if you discover the error and fail to re-submit the claim or refund the money, you may be criminally liable.
If your practice has been audited by the government agencies or contractors, speak to us immediately.
Medicare and Medicaid Exclusion
Under the U.S. Department of Health and Human Services regulations, a felony conviction for Medicare or Medicaid fraud or patient will result in the mandatory exclusion of the person convicted from further participation in Medicaid and Medicare for at least 5 years.
At Joseph Potashnik and Associates PC, we have a wealth of experience dealing with federal healthcare matters at all stages from the audit or an investigation to trial and appeal. We also have represented a number of healthcare providers in exclusion cases. Even when the client is charged in federal court with healthcare fraud it could be possible to minimize or perhaps even avoid debarment or set the stage for an early termination of suspension. Speak with us as soon as possible if you have been investigated or accused of healthcare fraud.
Penalties and Consequences of Medicare Fraud and Medicaid Fraud
A physician accused of a health care fraud crime may be terminated from participating in Medicare, Medicaid, or another federally sponsored program or denied hospital privileges before actually being found guilty in court!
Pleading guilty to a crime or being convicted after trial means an inevitable disciplinary action by a licensing agency and potentially losing the medical license.
We are amongst very few law firms in the New York Metropolitan Area that focuses on defending physicians and nurses in disciplinary and licensing matters for Medicare and Medicaid fraud.
Here are some of our representative cases in the area of Medicaid and Medicare Fraud
- Routinely represent Medicaid providers investigated by the Medicaid Fraud Control Unit in New York. In a recent case, we represented several providers each accused of stealing over a million dollars from Medicaid. We settled the case administratively, and the clients were not charged.
- Successfully represented a defendant in federal court in a multi-million Medicaid fraud conspiracy case, securing a non-prison sentence.
- Represented home care agencies, transportation companies, and medical practices in fraud investigations by state and federal authorities.
- Represent Medicaid providers in administrative actions taken by the Office of Medicaid Inspector General. In a recent case on appeal we convinced the OMIG to reverse its decision to exclude our client, a healthcare provider, from participating in New York Medicaid Program.
- Represented a physician charged with participation in a massive Medicare fraud scheme in New Jersey. Convinced court to agree to a sentence of probation.
- Represented several dentists accused of Medicare Fraud in New York City, securing civil settlements for each.
- Represented a transportation company investigated for overbilling the Medicaid program, convincing the prosecutors to agree to a civil settlement
- Represented a pharmacy investigated for insurance fraud, securing a civil settlement.
- Represented a nursing home care agency in a Medicare fraud investigation.
- Represented a nursing home under investigation for Medicare fraud by the NY Office of the Inspector General
If you are under investigation for Medicare Fraud or health insurance fraud, you need to talk to us! Call our downtown office to schedule a confidential review of your case. Use our efficiency and expertise to your benefit and call us today! Contact us today to talk to a New York Medicaid fraud criminal defense lawyer.
New York State Healthcare Fraud Charges
In addition to federal and NY state laws pertaining to Medicaid Fraud, New York law also has laws against other health insurance fraud.
Health Care Fraud in the Fifth Degree (NY Penal Law 177.05) sets forth that a person is guilty of this crime by knowingly and willfully providing materially false information or by omitting material information in order to receive payment from a health plan or health care item or service, with the intent to defraud a health plan (generally a publicly or privately funded heath insurance or managed care plan or contract), and by actually receiving payments that he is not entitle to. This crime is an A misdemeanor and punishable by up to one year in jail.
Health Care Fraud in the Fourth, Third, Second and First Degree (NY Penal Law, 177.10, 177.15, 177.20, and 177.25 respectively) all add to the misdemeanor charge, providing that a person is guilty of these charges if he commits the crime of Health Care Fraud in the Fifth Degree and the payment or portion of the payment that is wrongfully received from a single health plan, in a period of not more than one year, exceeds a certain amount of money. In the Fourth Degree that amount is $3,000; in the Third Degree that amount is $10,000; in the Second Degree that amount is $50,000; and in the First Degree that amount is $1,000,000. Each of these crimes constitutes a felony, with maximum sentences ranging from four years to twenty five years in state prison.
However, if the defendant is a non-management bookkeeper, clerk or other employee who, without personal benefit, executed the orders of a supervisor who generally supervises the defendant’s work, the defendant may be able to assert an affirmative defense.
If you are accused of health care fraud in New York, you should be aware that this a serious legal matter, and that the consequences may include decades in prison. Your first step should be to consult an experienced New York City criminal defense attorney with special expertise in health care issues.
New York Medicaid Fraud Control Unit
Because of rampant fraud and abuse by healthcare providers in the Medicaid system, the federal government stared the Medicaid Fraud Control Unit program in 1999. The federal government provides incentives to states which instituted their own MFCU offices. Every MFCU is funded by a federal grant provided by the United States Department of Health and Human Services. This grant pays 75 percent of the unit’s operating cost. The remaining 25 percent has to be matched by the state where the MFCU is located.
In New York, the Medicaid Fraud Control Unit is part of the Attorney General’s Office and has several regional offices across the state. Each MFCU office is staffed with investigators, attorneys, and auditors. MFCU concentrated only on healthcare provider Medicaid fraud cases.
In some situations, MFCU investigators discover fraud on their own. In many cases, Medicaid recipients as well as whistleblowers and other members of the public are an important source for cases. However, most of MFCU leads are obtained from referrals from a number of federal, local and state agencies. Every type of agency from the New York State Department of Health to the Medicaid Inspector General, as well as the U.S. Department of Health and Human Services, provide cases for an MFCU to investigate. It is also common for current investigations to create new cases of fraud for an MFCU.
Types of MFCU cases
MFCU investigates allegations of a Medicaid Mill. This is a business designed to generate income by billing Medicaid no matter what the real medical needs of patients. Healthcare professionals who bill for services that are not necessary. Selling prescriptions or access to prescription drugs. Billing both Medicaid and private insurance for the same procedure. Healthcare providers who make a financial arrangement with one another to use their products or services resulting in treatments that aren’t necessary. Inflating reimbursement rates as well as creating false financial reports. Employing healthcare professionals banned from working in a government healthcare programs. Demanding cash payments for services from a patient and then billing Medicaid for it. Billing for services never provided and more.
On average MFCUs recover over 2 billion dollars each year in Medicaid fraud. Their investigations lead to over 1,300 criminal convictions as well as more than 870 civil settlements and judgments annually. Approximately 74 percent of the criminal convictions are for Medicaid fraud, and the other 26 percent are for patient neglect and abuse. The top criminal convictions on average are 26 percent for home health-care aids, 7 percent for medical support personnel and 7 percent for physicians. New York MFCU receive the most federal grant money in the country. It also has the largest staff dedicated to fraud control. The New York MFCU has been able to recover $8 for each dollar it spends from its grant.
New York State Office of the Medicaid Inspector General
The Office of the Medicaid Inspector General (OMIG) is an autonomous entity within the New York City Department of Health that was created to ensure compliance with Medicaid laws and regulations. The mission of the OMIG is as follows:
“To enhance the integrity of the New York State Medicaid program by preventing and detecting fraudulent, abusive and wasteful practices within the Medicaid program and recovering improperly expended Medicaid funds while promoting high-quality patient care.”
The OMIG educates, coordinates, and investigates New York State agencies, providers, and managed care entities about state law concerning Medicaid claims and payments. In the event that fraud or abuse is expected, the OMIG prosecutes and obtains repayment of wrongfully paid Medicaid funds.
Common types of Medicaid fraud, waste, or abuse include the following:
- Billing for unnecessary services and items
• Billing for services or items not rendered
• Upcoding (or performing more services than needed)
• Unbundling (or billing for services that are included in another service)
• Billing for non-covered services or items
• Beneficiary fraud
• Medical identity theft
In furtherance of its mission to prevent fraud, waste, and abuse, the OMIG educates state agencies, providers, and managed care entities about proper Medicaid practices by developing educational training materials and programs. OMIG trains all medical service providers on self-investigation techniques so that they may learn to self-identify areas of potential noncompliance or abuse. Toward that end, the OMIG has developed a compliance program that all agencies or individuals providing services funded by Medicaid must employ if they wish to continue to provide Medicaid services.
OMIG Coordinates with State Agencies to Prevent Fraud and Abuse
Medicaid helps fund several state services. The following agencies provide services funded by Medicaid:
- Department of Health;
• Offices of Mental Health, Alcoholism and Substance Abuse Services
• Temporary and Disability Assistance
• Children and Family Services
• Commission on Quality of Care and Advocacy for Persons with Disabilities
• Office for People with Developmental Disabilities
• Department of Education
OMIG Investigates Allegations of Medicaid Fraud, Waste, and Abuse
The OMIG responds to and examines allegations that an agency did not attempt to prevent, to detect, or to prosecute suspected Medicaid fraud or abuse. OMIG investigates allegations of actual fraud or abuse made by any individual or agency against a medical assistance program, a provider, a managed care program or an individual.
The OMIG Prosecutes Medicaid Abuse
The OMIG conducts on-site facility and office inspections for evidence of fraud, waste and abuse. In the course of its investigations, it has the right to remove documents, subpoena or demand records, and compel testimony.
If the OMIG has evidence of fraud or abuse, it may pursue civil and administrative enforcement actions against accused individuals or entities. Under New York state law, the OMIG has the authority to pursue a variety of actions. It many do any or all of the following: refer an action to regulator agencies and licensing boards; withhold the payment of funds; impose administrative sanctions and penalties; exclude providers from program participation; recover improperly paid funds including seizing property or assets connected to improper payments; and refer suspected criminal activities to the Attorney General’s Fraud and Medicaid Control Unit.
New York HealthCare Fraud attorneys of Joseph Potashnik and Associates have years of experience of representing healthcare professionals in all sorts of healthcare related audits, investigations, and criminal prosecutions. We are amongst the most experienced law firms in New York in the area of healthcare law. Our attorneys have built a solid track record of success in dealing with just about any federal and state agency investigating and prosecuting Medicaid and Medicare fraud. Call us today to set up your confidential consultation.