Healthcare fraud is a type of white-collar crime that involves the filing of False healthcare claims in order to turn a profit. Fraudulent healthcare schemes come in many forms.
- Submitting claims for services not provided
- Billing for items and services that are not medically necessary
- Misrepresenting dates, frequency, duration or description of services rendered
- Falsifying claims or medical records
- Falsifying patient eligibility
- Misrepresentation of the individual rendering service
- Billing for services at a higher level than provided or necessary
Enforcement Agencies: The agencies charged with enforcing healthcare laws and regulations include: the U.S. Department of Justice (DOJ), The Office of Inspector General for the U.S. Department of Health and Human Services (OIG), the Federal Bureau of Investigation (FBI), The Centers for Medicare & Medicaid Services, the United States Attorney’s Office, as well as the Medicare Fraud Strike Force a multi-agency team made up of federal, state and local investigators.
Applicable Laws: There are a number of civil and criminal healthcare fraud laws used to prosecute health care fraud.
Criminal Enforcement
Federal Anti-Kickback Statute Violations (42 U.S.C. § 1320a-7b(b)): occurs when individual providers or healthcare organizations knowingly and willfully offer, pay, solicit, or receive any remuneration, directly or indirectly, to induce or reward patient referrals for services or supplies reimbursed by a federal healthcare program.
Florida Patient Self-Referral Act of 1992 (Fla. Stat. § 456.053): Prohibits physicians from referring patients to an entity in which the physician (or an immediate family member) has a direct or indirect ownership or investment interest. As with Stark, there are some safe harbors or exceptions.
Florida Patient Brokering Act (Fla. Stat. § 817.505): The state’s anti-kickback statute, prohibits anyone, including healthcare providers or healthcare facilities, from giving or receiving any form of remuneration in exchange for referrals, regardless of the source of payment for the service or product.
Federal Criminal False Claims Act (18 U.S.C § 2870): Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned for not more than five years and shall be subject to a fine in the amount provided in this title.
Federal Healthcare Fraud Statute (18 U.S.C. §1347): Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to defraud any health care benefit program.
False Statement Relating to Healthcare Programs (18 U.S.C. § 1035): Whoever, in any matter involving a healthcare benefit program, knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, in connection with the delivery of or payment for healthcare benefits, items, or services, shall be fined under this title or imprisoned not more than five years, or both.
Civil Enforcement
The Federal Civil False Claims Act (31 U.S.C. § § 3729-3733): prohibits a person from:
- Knowingly presenting (or causing to be presented) to the federal government a false or fraudulent claim for payment;
- Knowingly using (or causing to be used) a false record or statement to get a claim paid by the federal government;
- Conspiring with others to get a false or fraudulent claim paid by the federal government;
- Knowingly using (or causing to be used) a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the federal government.
Whistle Blower Provision: The False Claims Act also allows a private citizen, or whistleblower, to bring a case against someone on behalf of the government. For example, an employee or patient can file a whistleblower, or qui tam lawsuit, if they believe you have violated the law. Our firm represents both whistleblowers and those targeted by whistleblowers.
Stark Law/The Physician Self-Referral (42 U.S.C. § 1395nn): prohibits physicians from referring patients for certain designated health services paid for by Medicare to any entity in which they have a financial relationship. Unlike the Anti-Kickback Statute, it is not a criminal statute, but a civil one, and can result in severe monetary penalties. A physician’s specific intent to violate the law is not required. There are “safe harbors” or exceptions, to these relationships so it’s best to discuss with a qualified healthcare attorney.
OIG Exclusion Authority: Allows the Office of Inspector General for the U.S. Department of Health and Human Services to exclude individuals and entities from federal healthcare programs if they are convicted of Medicare or Medicaid fraud, or any program-related offenses.
OIG Civil Monetary Penalties: The Office of Inspector General (OIG) has the authority to seek civil monetary penalties (CMPs), against an individual or entity based on a wide variety of prohibited conduct.
Healthcare laws and regulations are in a constant state of flux. It’s always best to speak with a qualified healthcare attorney to ensure that you remain in compliance with federal and state laws and regulations. Ignorance is not a defense in today’s healthcare environment. Our team of highly skilled attorneys and professionals are here to help you before you become the focus of an investigation, and will aggressively defend you should you become the target of one.
Give us a call at 305-358-4500 or email info@vitalehealthlaw.com.
Healthcare professionals are under more scrutiny today than ever before. If you become the target of an investigation that threatens your professional license, the Health Law Offices of Anthony C. Vitale can provide you with legal representation to protect your rights and mitigate the damage to your reputation.
Our firm has a record of successfully defending physicians, nurses, psychiatrists, psychologists, physical therapists, massage therapists, social workers and other professionals in licensing investigations conducted by the Florida Department of Health. We are frequently able to resolve matters through settlement agreements or other means that preserve a client's ability to practice.
Our team has experience in representing licensees at administrative hearings to challenge revocations, suspensions and other penalties and sanctions. Our attorneys will vigorously defend you against sanctions, which can include probation, required CME courses, monitoring, suspension or revocation of your license.
By providing regular analysis of possible risk to clients, we are able to minimize the possibility of potential sanctions and protect our clients’ ability to continue practicing. Additionally, the firm provides advice on license applications and renewals, impaired practitioners, and emergency suspension orders.
There are many reasons why a medical license might be compromised:
- Malpractice/professional incompetence
- Fraud
- Substance abuse
- Sexual misconduct
- Patient abuse
- Improper record keeping
- Medication violations
- Criminal conviction
Do not ignore a notice of investigation or attempt to resolve the problem yourself. You need an experienced healthcare attorney who knows how each step of the process works and who can take you through it so as to mitigate any further damage to your reputation and your practice.
Contact the Health Law Offices of Anthony C. Vitale today at 305-358-4500 or email info@vitalehealthlaw.com
If you have received an overpayment notice from Medicare or Medicaid, immediate action is required. While you may not have done anything wrong, and therefore think you can ignore it, that notice could lead to civil, criminal and administrative enforcement actions against you and your company.
Many clients believe they can handle the inquiry themselves, but doing so generally leads to even more problems. That is why it is essential that you contact legal counsel immediately. The mishandling of overpayments can trigger a criminal fraud investigation or a civil action under the federal or state False Claims Act.
The Health Law Offices of Anthony C. Vitale has extensive experience representing clients in audits and overpayments and we can represent your interests through all of the stages of the overpayment appeals process in an effort to achieve the most successful results.
An overpayment notice is generated by an audit conducted by a Recovery Audit Contractor (RAC) a Medicare Administrative Contractor (MAC), a Zone Program Integrity Contractor (ZPIC) or a Medicaid Integrity Contractor (MIC).
Examples of overpayments include:
- Deductible or co-insurance was applied incorrectly
- Payment exceeded reasonable charge
- Duplication of charges or claims
- Payment for which the individual was not entitled to benefits under Medicare/Medicaid
- Payment for non-covered or medically unnecessary items or services
- Services incorrectly coded
- Services not rendered
- Services rendered by an unlicensed or excluded provider
Under the Affordable Care Act’s (ACA) overpayment provision and rules promulgated by the Centers for Medicare & Medicaid (CMS), a provider who has received an overpayment must report and return it. The deadline is the later of the date that is 60 days after the overpayment’s identification or the due date of any applicable corresponding cost report. Failure to report and return the overpayment can result in False Claims Act and Civil Monetary Penalties Law liability, as well as exclusion from federal healthcare programs.
Once an overpayment is identified, there are strict guidelines that must be adhered to when it comes to the appeals and recoupment process.
Providers would be well advised to schedule regular reviews of their compliance program documents and standards. In addition to assisting you once you become the target of an overpayment notification, the Health Law Offices of Anthony C. Vitale can help you to create a program designed to keep you in compliance with existing laws.
Becoming the target of a healthcare fraud investigation is serious business. The best outcome would be to avoid being charged and in the process prevent all the unwanted publicity and damage to your reputation and your business. The minute you become aware that you or your company are under investigation is when you should contact a qualified healthcare attorney who specializes in criminal healthcare fraud.
The Health Law Offices of Anthony C. Vitale has been representing clients under investigation for more than three decades. As a former prosecutor, Mr. Vitale knows what government investigators are looking for, and how to best prepare should you become the target of an investigation. In response to a government investigation, our firm conducts a defense or internal investigation. The goal is to eliminate liability and minimize any potential damage to you or your company’s reputation and your ability to continue doing business.
Our firm represents clients under investigation by a wide range of state and federal agencies including the FBI, Drug Enforcement Administration, U.S. Attorney’s Office, Attorney General’s Office, State Attorney’s Office, Medicaid Fraud Control Unit, Medicare Fraud Task Force, as well as licensing boards and other enforcement agencies.
A Defense or Internal investigation consists of four distinct components:
Factual Investigation: Our firm will conduct a complete investigation of the facts surrounding allegations of fraud, abuse or regulatory noncompliance. The lifeblood of any investigation is evidence. If there isn’t enough evidence, then an investigation can die on the vine. Our firm utilizes specialized private investigators to gather facts, collect relevant documents, and conduct witness interviews. Our firm consults with and retains experts including medical experts, Medicare/Medicaid policy experts, billing and coding documentation experts and other experts specializing in your provider type.
Legal Investigation: Our firm will conduct a legal investigation to identify any laws, rules or policies which are alleged to have been violated.
Defense Development: Our firm specializes in identifying and developing defenses and explanations to the allegations under investigation. We develop a legal defense strategy and our firm will create a corrective action plan to identify and correct any perceived violations.
Defense Case Presentation to Enforcement Authorities: Our firm will develop a defense case presentation to the prosecuting authority. The presentation is designed to mitigate criminal, civil or administrative liability. We will meet with the prosecutor in an effort to protect your interests.
Making a mistake during an investigation may cost you not only time and money, but also your career and freedom. Give us a call at 305-358-4500 or email info@vitalehealthlaw.com.
A whistleblower is someone who has knowledge that a person or organization is engaged in an unlawful activity. In healthcare, whistleblowers often are employees of a healthcare organization or practice. However, they also can be patients. These cases are brought under the False Claims Act (FCA).
A whistleblower who has knowledge of healthcare fraud or false claim can bring a lawsuit or qui tam action against the offending provider. After investigating the whistleblower’s allegations, the government can decide to intervene in the case, reserve the right to intervene at a later time, or pass. If the government decides not to intervene, the whistleblower or “relator” can proceed with the action on his own.
In cases where the government intervenes, the relator shares in the proceeds of any successful litigation or settlement.
Whistleblowers are protected and if they are fired or suffer negatively as a result of filing a qui tam action, they may have a case for unlawful retaliation under the False Claims Act. A successful case could result in your receiving double the amount of your backpay, as well as compensation for other damages, along with your share in the recovery of the initial qui tam action.
There have been numerous cases in which whistleblowers have been awarded millions of dollars as a result of their bringing cases of fraud and abuse to the attention of the government. On the flip side, untold numbers of healthcare providers and organizations have become the target of whistleblower actions as a result of their illicit activity.
Such activities can include, but are not limited to:
- Providing unnecessary medical care and treatment
- Fraudulent billing, i.e. billing for services not provided, overbilling, etc.
- Receipt of kickbacks
Whistleblower cases are highly complex and require the knowledge and skill of an attorney who has extensive and relevant experience. The Health Law Offices of Anthony C. Vitale is known for its representation of whistleblowers, as well as its ability to defend those who become the target of a whistleblower action.
The United States Drug Enforcement Administration (DEA) takes a hard line on prescribing, distribution and dispensing of narcotics, opioids in particular. Many physicians have been caught in the DEA’s crosshairs, forcing them to justify that the prescribing of these painkillers is legitimate.
While that’s not to say there are no bad actors, many healthcare professionals, as a result of innocent mistakes, likely will find themselves on the other end of a DEA investigation at one time or another. The inspection may be routine, or the result of a complaint. If it is determined that you have violated the Controlled Substances Act, this can lead to, not only an administrative action against your DEA registration, but also to criminal prosecution.
The Health Law Offices of Anthony C. Vitale represents clients in DEA registrations, audits, investigations, DEA registration revocation hearings, orders to show cause and related matters. Our firm has represented clients in a variety of cases working closely with prosecutors and other agencies to ensure you get the best defense possible.
Given the current regulatory climate, manufacturers, wholesalers, physicians, pharmacists, pain management clinics and others involved in the prescribing, dispensing and distribution of controlled substances need a team of attorneys who have the skill, knowledge and experience to deal with DEA audits and investigations.
DEA inspections, or audits, begin at the time a Form 82 (Notice of Inspection of Controlled Premises) or an administrative inspection warrant is presented to the registrant. At that point, the DEA registrant must give informed consent before the audit or inspection can take place. This consent basically states that you have the right not to have an administrative inspection, that if you go through with the inspection then incriminating information can be used against you in a criminal prosecution, and that if you agree to the inspection it’s done voluntarily.
You can withhold consent by refusing to sign or withdraw consent at any time during the inspection if you feel uncomfortable with how things are proceeding. By doing so, investigators must leave and return with an administrative inspection warrant or a search warrant from a federal magistrate.
After an inspection, a DEA agent may request that you surrender your controlled substance registration even if the violation doesn’t warrant such a measure.
Even if you believe you have done nothing wrong, it’s always best to consult with an attorney before signing and agreeing to an inspection, surrendering your DEA registration, or allowing other DEA enforcement action to be taken.
Many cases can be resolved through proper negotiation with the assistance of legal counsel. Our team of highly experienced and knowledgeable attorneys can assist you from the moment you become the subject of a DEA inspection or audit. Give us a call at 305-358-4500.
If you don’t have an effective compliance program in place, you’re already behind the eight ball. Think of a compliance program as preventive medicine for your practice.
The Health Law Offices of Anthony C. Vitale can help you to develop an effective program that allows you to identify and correct any problems before you become the target of an investigation.
If you or your company are the subject of an investigation an effective compliance program may help you mitigate or eliminate potential sanctions, penalties, and program exclusions
Having an effective compliance program in place can benefit you should you or your practice become the focus of an investigation, as they can result in more favorable treatment from government prosecutors.
The U.S. Department of Health and Human Services Office of the Inspector General has a list of seven suggested guidelines that should be followed when creating a compliance program, directed at various segments of the healthcare industry.
- Conduct internal monitoring and auditing
- Implement compliance and practice standards
- Designate a compliance officer or contact
- Conduct appropriate training and education
- Respond appropriately to detected offense and develop a corrective action plan.
- Develop open lines of communication with employees
- Enforce disciplinary standards through well-publicized guidelines.
Our team can help you to identify areas that need attention and help you to put policies and procedures in place. We also can conduct regular audits to ensure that policies are being followed by all personnel, and make updates when changes in the law occur.
Because the healthcare regulatory environment is complex and in constant flux, you need a team of experienced attorneys who stay up to date with the most recent changes. All you need to do is read our blog to realize that there are changes coming down the pike all of the time.
The Health Law Offices of Anthony C. Vitale is here to protect your interests. Give us a call at (305) 358-4500 or email info@vitalehealthlaw.com