Allegations of healthcare fraud can be very serious legal matters. When a doctor or other healthcare provider is accused of fraud, the ramifications can be severe. Depending on the type of allegation, a healthcare professional could potentially lose their professional license, face other sanctions restricting their ability to operate their business, or even face criminal prosecution.
That’s why it’s critical that healthcare professionals understand how the investigation process works and what to expect when being investigated for healthcare fraud. Below, you can find the answers to many questions about these types of cases. The information is based on years of experience defending the rights of medical professionals and other healthcare providers.
How common are healthcare fraud cases?
Each year, the Department of Health and Human Services and the Department of Justice compile an annual report concerning allegations involving healthcare fraud, waste, and abuse. In the most recent report for Fiscal Year 2019 (Oct. 1, 2018 until Sept. 30, 2019), the federal government negotiated or secured more than $2.6 billion in health care fraud settlements and judgments.
During the same fiscal year, the Department of Justice initiated 1,060 new criminal healthcare fraud investigations. The investigations resulted in criminal charges being filed against 814 medical professionals in 485 total cases. In addition, the Department of Justice also began 1,112 civil healthcare fraud investigations in Fiscal Year 2019, according to the same annual report.
What are common cases?
Allegations of healthcare fraud can cover a wide range. Some of the most common allegations involve:
- Falsifying healthcare claims.
- Double billing for medical services.
- Billing for medical services not provided.
- Upcoding (billing for a more expensive medical procedure).
- Performing medically unnecessary medical procedures.
- Medicaid fraud, Medicare fraud, and fraud involving other federal healthcare programs.
- Providing medically unnecessary prescriptions for medications, particularly prescriptions for opioid drugs.
This is just a sampling of some of the allegations that typically target medical professionals and healthcare institutions. Many other allegations and claims are common. Each one may require its own distinct defense strategy.
What laws govern these types of cases?
In many cases, the rules and regulations governing healthcare fraud allegations are federal laws, including:
- False Claims Action (FCA) – Created in 1863, the False Claims Act (31 U.S.C. §§ 3729 – 3733) allows the government and some private parties to take legal action against individuals or companies accused of submitting false claims to the government. FCA cases could implicate healthcare providers accused of trying to defraud government-funded programs such as Medicare or Medicaid.
- Anti-Kickback Statute (AKS) – This federal law (42 U.S.C. § 1320a-7b(b)) prohibits medical professionals from rewarding or providing any form of payment or remuneration in return for patient referrals that are funded by federal healthcare programs such as Medicare or Medicaid. Most healthcare fraud allegations today include AKS violations.
- Criminal Healthcare Fraud Statute – This federal statute (18 U.S.C. § 1347) prohibits medical professionals or healthcare institutions from engaging in a scheme or making false statements intended to defraud federal healthcare programs (Medicaid, Medicare, etc.).
- Stark Laws (Stark Statute) – These federal statutes, which are also known as the Physician Self-Referral Law (42 U.S.C. § 1395nn), prohibit medical professionals from referring patients to another healthcare provider in which the referring physician benefits financially. The Stark Law was enacted in three parts known collectively as the “Stark Statute.” The three parts are:
- Stark I – Enacted in 1989. Applies to referrals of Medicare patients to clinical laboratories.
- Stark II – Enacted in 1993. Applies to 10 additional types of medical services not included in Stark I.
- Stark III – Enacted in 2007. Applies to additional types of medical services not included in Stark I and Stark II.
These are just some of the federal laws that apply to allegations of healthcare fraud. Additional federal and state laws also exist. That’s why it’s important to consult with an attorney near you if you or your medical practice has been charged with healthcare fraud or your practice is the subject of a Qui Tam lawsuit.
Who investigates healthcare fraud allegations?
Depending on the type of allegation, several different state or federal agencies may be involved in the investigation. In general, it depends on whether the investigation involves a civil or criminal matter. Which state or federal agency investigates also often depends on whether state or federal laws have allegedly been violated.
Since most healthcare fraud allegations involve violations of federal laws. Federal agencies are usually involved in investigations at some level. These federal agencies may include:
- U.S. Department of Justice (DOJ)
- Federal Bureau of Investigations (FBI)
- U.S. Department of Health and Human Services, Office of the Inspector General (HHS-OIG)
In addition, individual state agencies may assist in investigations. In particular, the Attorney General’s office for a particular state may take part. However, this may vary from one state to another.
How does the investigation process work?
The specific circumstances underlying healthcare fraud investigations vary from case to case. However, in general, healthcare providers can expect the investigation process to include many of the following steps:
- Your medical practice or healthcare organization will receive a formal letter notifying you that you are the subject of a fraud investigation.
- The investigating agency will then likely assign a team of agents and auditors to investigate the allegations.
- Your medical practice or healthcare organization will likely be invited to provide written documentation refuting the allegations and justifying your actions.
- You and your employees will likely be interviewed by federal and/or state investigators. It is important to understand that making false statements to federal investigators or otherwise obstructing a federal investigation is a separate federal crime.
- You are legally allowed to have legal representation during the interviews. You do not have to speak to investigators on your own. You have the right to have an attorney present during the interviews.
- Depending on the allegations against you, your case could potentially go to trial.
- If your case involves allegations of violating federal laws or statutes, and a significant amount of money is involved, the U.S. Department of Justice may prosecute your case criminally in federal court.
This is a general description of the process surrounding healthcare fraud investigations. Each case can present its own distinct challenges and complications. That’s why it’s strongly recommended to consult with an attorney if you, your medical practice, or healthcare organization has been accused of healthcare fraud.
Can healthcare professionals appeal a decision?
In many cases, the answer is yes, you can appeal a decision involving allegations of healthcare fraud. However, it’s important to note that every case is different and generalizations should be avoided when dealing with specific legal matters. Instead, individual healthcare providers should consult with a lawyer about the options available if a judgment of healthcare fraud has been entered by a government agency or civil or criminal court.
Who is responsible for ruling on appeals?
Since many healthcare fraud allegations involve violations of federal law, federal appeals courts are often responsible for ruling on healthcare fraud appeals. Nationwide, there are 11 U.S. Court of Appeals, which are also known as Circuit Courts. The 11 U.S. Circuit Courts are divided into 11 different geographic areas. Texas, for example, is part of the 5th U.S. Circuit Court of Appeals, which also includes Louisiana and Mississippi.
To learn more about your legal options and which strategy makes the most sense, schedule an appointment with an attorney at Brewer, Pritchard & Buckley, P.C. Based in Houston and serving clients nationwide, we have extensive experience defending the rights of medical professionals, healthcare providers, and healthcare organizations facing allegations of healthcare fraud. Contact us to learn more about how we can help you.