Defense of Healthcare Professionals

Fraud in the Health Care Industry
  
There are several federal criminal statutes that address fraud in the Federal Health Care Program. A federal health care program is any program that provides health benefits,  which is funded in any way and to any degree by the United States Government, which includes any state program receiving federal funds.

Anti-Kickback Statute

Section 1320a-7b(b) of 42 U.S.C. states:
''(1) Whoever knowingly and willfully solicits or receives any remuneration ... directly or indirectly, overtly or covertly, in cash or in kind. (A) in return for referring an individual (relating to covered services) or(B) in return for purchasing, leasing or ordering or arranging for or recommending purchasing, leasing or ordering (covered services) shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five (5) years, or both.''

''(2) Whoever knowingly or willfully offers or pays any remuneration, directly or indirectly, overtly or covertly, in cash or in kind to induce (referrals as described above) ... shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five (5) years, or both.''

1. Elements of offense 
(a) knowing and willful action;
(b) solicitation, receipt or payment of remuneration;
(c) covered services.

2. Scienter (knowingly and willfully)
 Scienter requires that the defendant ''had to know that Section 1128B prohibits offering or paying remuneration to induce referrals and to engage in prohibited conduct with the specific intent to disobey the law.''

3. Remuneration

United States v. Greber stated that the requisite intent was present if even one of several purposes in making referrals was the receipt of illegal remuneration.

4. Covered Services
(1) federal health care programs
(2) each act is a separate offense.

False Statements and Representations

Section 1320a-7b of 42 U.S.C, provides that it is a crime to knowingly and willfully:
1. make, or cause to be made, false statements or representations in applying for benefits or payments under all federal health care programs;

2. make, or cause to be made, any false statement or representation for use in determining rights to federal health care program benefits or payments;

3. conceal any event affecting an individual's initial or continued right to receive a benefit or payment with the interest to fraudulently receive the benefit or payment either in an amount or quantity greater than that which is due or authorized;

4. convert a benefit or payment to use other than for the use or benefit of the person for which it was intended;

5. present or cause to be presented a claim for a physician's services when the service is not furnished by a licensed physician; and

6. Penalties:
(1) $25,000 fine
(2) imprisonment for up to five (5) years;
(3) or both.


Health Care Fraud
Under 18 U.S.C. § 1347, prohibits knowingly and willfully executing or attempting to execute a scheme to defraud any health care program, or to obtain money or property from any health care program through false representations. The penalties for such include a $25,000 fine, imprisonment for up to ten (10) years (20 if violation results in serious bodily injury), or both.

Theft or Embezzlement
Under Section § 669, it is a crime to knowingly and willfully embezzle, steal or misapply any assets of any health care program. For offenses involving less than $100, the penalties are fines, imprisonment for up to one (1) year, or both. For offenses involving more than $100, the penalties are fines, imprisonment for not more than ten (10) years or both.

False Statements
Under 18 U.S.C. § 1035, it is a crime to knowingly or willfully falsify or conceal a material fact, or make any materially false statement or use any materially false document or writing relating to the delivery or payment for any health care service. For any of these offenses, the penalties can include fines, imprisonment for up to five (5) years, or both.

Obstruction of Criminal Investigations
Under 18 U.S.C. § 1518, it is a crime to prevent, obstruct, mislead, delay or attempt such conduct, relating to a federal health care program or offense. The punishment for such offenses may include fines, imprisonment for up to five (5) years, or both.

Mail or Wire Fraud
Under 18 U.S.C. §§ 1341 and 1343, it is a crime to use the mail, couriers, or wire services to conduct a scheme to defraud. Each ''use'' is a separate violation. This includes the telephone, fax machine or computer. Penalties for such crimes include fines, imprisonment for up to five (5) years, or both.

Government Investigation of Health Care Providers

Federal government constantly conducts ongoing investigations and inspections of health care providers who participate in government funded health care programs. Besides Medicare carriers, numerous federal agencies investigate health care providers. 

Any health care provider, individual or business entity may be the target of a government investigation. It does not matter how large or small the provider is. Any health care provider  -  doctor, dentist, therapist, hospital, billing company, home health agency, laboratory, nursing home, patient, insurer, and managed care organization may be investigated..

An investigation may be triggered by a signal of a carrier, a competitor’s complaint, or a report from a disgruntled former employee. Other sources of investigations could be an audit by the Office of Inspector General (OIG) or an investigation by the FBI or a state agency.
 
Not uncommon are the Qui Tam actions, in which private individuals (the qui tam plaintiffs) report filing of a fraudulent healthcare claim to the authorities. If the case is successfully prosecuted, the qui tam plaintiff is entitled to an award of attorneys' fees and a court apportioned percentage of the government's recovery.

When an investigative agency contacts a health care provider or its employees or, worse, shows up at the door with a search warrant, the next steps are absolutely crucial to the outcome of the case. Business entity health care providers must have implemented policies for actions in such situations, including employee training and intra-management coordination.

If the investigator is asking questions, there is no obligation to answer and there is always the right to consult with an attorney. At the same time, there should be full cooperation so as to avoid any notion of obstructing an investigation. If you decide to answer, the answers must be truthful.

The health care provider under investigation must consult with an attorney as early as possible, preferably before answering any questions and providing any information.