The procedures for properly billing Medicaid, Medicare and private health insurance companies are complicated. With CPT and ICD-9 codes and the interpretations of the code changing annually, it can be difficult to properly bill for services. This is why so many offices turn to private companies to handle their coding and billing. However, even that does not guarantee you will not run into problems. A Medicare billing audit can quickly turn into a criminal investigation if the auditor finds evidence of wrongdoing.
Our health care fraud defense attorneys stand willing to represent the many different parties who get caught up in audits, investigations, criminal prosecution and civil litigation.
- Doctors and other medical providers, including chiropractors, nurses, diagnostic professionals, pharmacists, dentists
- Pharmaceutical and medical equipment providers, including online pharmacies and durable medical supplies
- Hospitals and their employees, including individual directors, managers, accounting staff
- Home health care companies and their staff
We get involved at the audit stage, helping clients explain billing discrepancies to fraud investigators. If we cannot prevent criminal indictments, we are prepared for vigorously defending clients in court.
Strong, Experienced Defense Against All Charges of Fraud
Our defense lawyers have defended clients facing charges of Medicare fraud, Medicaid fraud and private insurance fraud. Whether private or government insurance is involved, the charges of wrongdoing are often the same, involving allegations of:
- Providing unnecessary services
- Upcoding, unbundling, and other billing fraud
- Billing for services not provided
- Prescription drug fraud
- Conspiracy and RICO cases in criminal and civil court
- Obstruction of justice, such as destroying medical cords, billing information or financial documents
By intervening at the civil audit and investigation stage to show how ambiguous billing codes make honest mistakes highly likely and by raising other relevant defenses, it may be possible to prevent criminal fraud charges from being filed.
Doctors And Providers
A conviction or civil lawsuit for health care fraud can be financially disastrous, even career-ending. The Law Offices of Mark L. Horwitz, a Professional Association, has represented a broad range of health care providers facing criminal prosecution and civil litigation. We stand ready to represent medical professionals including:
- Doctors (e.g., family practitioners, orthopedic specialists, neurologists)
- Surgeons and anesthesiologists
- Radiologists and diagnostic labs
- Nurses and other licensed medical professionals
Medical Fraud Defense
The rules for billing under Medicare and Medicaid are very specific and the process is arcane. We know that providers can easily trigger civil audits and criminal investigations through innocent mistakes in billing government programs or private insurance, and that investigators automatically suspect doctors even when the billing department of a large health organization made the errors.
Our chief objective is to pre-empt criminal charges against physicians by conducting our own investigation to prove there was no intent to defraud. If charges are brought, we aggressively counter the allegations before a jury or negotiate the most favorable plea agreement to (a) avoid prison and (b) avoid loss of medical license.
- In one case, we represented a doctor accused of unbundling CPT codes for breast X-rays to charge excessively for the diagnostic exams. We convinced prosecutors not to prosecute on these charges because the complexities of the Medicare billing made it impossible to prove that the doctor acted with criminal intent.
- In another case, a mobile lab that conducted blood draws was accused of exaggerating mileage to inflate Medicaid reimbursement claims. We negotiated a plea agreement that significantly reduced the client's potential exposure to criminal sanctions.
Home Health Care Fraud
The state of Florida and the federal government are cracking down on cases of health care fraud across the country, and particularly in Florida. A large number of high profile cases have been prosecuted in south Florida over the past three years, several of them involving home health care agencies and providers.
These cases are usually prosecuted at the federal level because they involve Medicare or Medicaid fraud. But, they can also involve private insurance fraud. Common charges faced by home health care agencies and providers include:
- Over-billing for services not provided
- Charging for tests or treatments that are medically unnecessary
- Upcoding or unbundling of services in order to bill more to the insurance company
- Filing false claims by providing a service that is not covered by insurance but billing for a service that is covered
- Kickbacks to patients and other care providers
- Conspiracy to defraud the government
Defense against All Charges of Home Health Care Fraud
Our legal team can begin working on your case even before charges are filed. Have you been notified of a Medicaid audit of your records? Did an investigator interview elderly patients who didn't remember having had certain procedure? Were you asked to explain billing discrepancies by a fraud investigator?
Early intervention may result in charges not being filed. If we cannot prevent criminal indictments, we are prepared to vigorously defend our clients in court.
Hospitals / Employees
We have represented a number of hospital employees and officers and employees of medical practices in Medicare and Medicaid fraud cases, as well as many physicians and employees caught up in the investigation.
In some instances, both the hospital and individuals are charged criminally, under the Health Insurance Portability and Accountability Act (HIPAA), the False Claims Act, or other federal laws, including RICO for conspiracy to commit health care fraud. Our hospital fraud defense lawyers emphasize early intervention at the civil audit stage to try to prevent criminal indictments. We also represent clients in related civil RICO lawsuits.
Our experienced criminal defense trial lawyers have represented all of the following:
- Medical practices and hospital employees
- Doctors and physician groups
- Medical services directors
- Managers and employees of hospital accounting and billing departments
We can capably respond to all allegations, including billing for services not provided, billing for unnecessary services, upcoding and other over-billing, falsified documents, obstruction of justice (destroying evidence), filing false cost reports, or illegal kickbacks to referring providers.
Hospital Fraud — We advise employees, officers, and medical directors of hospitals. Federal charges can result in mandatory prison terms for conviction and hundreds of thousands in fines for individuals and the hospital charged with fraud. Civil RICO lawsuits can expose the hospital or clinic to treble damages. We strive to convince the government not to take any action against our clients, or in the alternative, we argue for non-prosecution agreements, a pre-trial diversion to forego criminal prosecution against the client in exchange for fines and restitution.
But a non-prosecution agreement with the hospital does not prevent the government from charging individuals criminally. It's important to know that the hospital's legal counsel, though sympathetic to doctors and staff, is looking out for the interests of the corporation. Individuals caught up in hospital fraud will need their own legal counsel, and the earlier in the process the better.
- The Law Offices of Mark L. Horwitz, a Professional Association represented the accountants of Healthcare Corporation of America in a major fraud case alleging improper filing of cost reports by the accounting department. Our clients were never charged with any crime.
- We represented a doctor under investigation for billing Medicare for patient services actually provided by a physician's assistant. The three-year investigation concluded without prosecution — we defended the doctor based on the grounds that the doctor's supervision of the physician's assistant was proper and that if any billings errors occurred they were not intentional.
Pharmacy / Medical Supply
We also have experience representing online pharmacies and durable medical supply companies charged with health care fraud. Increasingly, state and federal authorities, as well as private insurance companies, are scrutinizing the distribution of drugs and billing of Medicare and Medicaid for medications or medical equipment.
Our team draws on decades of experience to help clients avert prosecution or defend themselves against a wide range of allegations and related civil lawsuits:
- Distribution fraud (adulterated drugs, substitute drugs, or repackaging free samples for sale)
- Over-billing for medications or durable medical equipment (e.g., wheelchairs, oxygen tanks, adjustable beds)
- False claims for goods or services not rendered
In particular, the FBI, DEA, and FDA are cracking down on online pharmacy fraud and related crimes, charging pharmacists for distributing drugs without legitimate prescriptions or physicians for prescribing medications over the Internet without ever examining patients. Coupled with fraudulent insurance billing, this can lead to multiple counts of mail fraud or wire fraud, which carry stiff prison terms upon conviction, and sanctions against the provider's medical license/pharmacist license. Added to the potential penalties may be racketeering charges and accusations of money laundering, along with possible civil fraud litigation with treble damages.
Potential Penalties For Fraud
State and federal fraud prosecutors are eager to make an example of those caught up in the net. The potential penalties for conviction are severe; if you have been accused, it is important that you work with a skilled criminal defense attorney to help you answer the charges you are facing.
- Prison: Federal sentences are based on the dollar amount of loss. Fraud valued at $120,000 can carry up to one year in prison, even for a first offense. If the loss exceeds $400,000, presumptive prison terms are two to three years.
- Fines: A federal conviction for Medicare, Medicaid or other health care fraud can result in fines equal to twice the loss, up to a $250,000 fine for individuals and up to $500,000 for corporations, whichever is greater.
- Medical sanctions: Physicians or other providers may face loss of their medical license/professional license, and hospitals or individual providers can be barred from future contracts with Medicaid and Medicare.
- Multiple counts: Each false claim is a separate offense. If the investigating agency alleges dozens or hundreds of fraudulent billings, prosecutors can seek the maximum sentence under sentencing guidelines. It is also possible to face state and federal prosecutions for the same allegations.
- RICO prosecutions: Convictions involving fraud under the federal RICO provisions may carry additional criminal penalties and forfeiture of assets.
- Civil lawsuits: If sued civilly under RICO, you may face treble (triple) damages.
Billing For Services Not Provided
Billing errors can occur in any number of ways. Insurance companies, Medicare and Medicaid become concerned when a pattern of discrepancies emerges during an audit or review.
During a Medicaid or Medicare audit, an investigator will review a wide range of clinic records to determine if the clinic or office was properly staffed and resourced to provide the services it said it provided. Investigators may then interview patients to determine if they received the services the clinic said were provided. They will look for false records and false claims.
An insurance company may analyze the bills of a large number of physicians in the same state looking to see if one provider is using a CPT code far in excess of other physicians. This is another signal of healthcare fraud and false claims.
Our law firm defends doctors and clinics, dermatologists, chiropractors, home health care providers and durable medical equipment suppliers charged with health care fraud and conspiracy to commit fraud.
Defense in Cases of Error and Intentional Misrepresentation
- Incorrect CPT codes could create an ongoing pattern of problems and can occur without any malicious intent
- Improper unbundling of services may be an issue that involves differing interpretations of billing codes
- Elderly patients may not accurately recall which services were provided and so can be unreliable sources of information when determining if a claim was false
- A service may have been provided that was not eligible for coverage and so it was improperly or mistakenly reclassified
A charge of fraud involving billing for services not provided can also occur when a health care provider sees a group of residents at a nursing home or group home. They may see every resident, billing some for whom the medical service was not needed or not provided. Group visits can trigger a false claims investigation.
Conspiracy To Provide Unnecessary Services
State and federal investigators have, in recent years, increased their efforts to uncover healthcare fraud. In certain cases, overzealous investigators who don't always understand the intricacies of billing or the practical realities of treating patients, mistakenly assume that irregularities point to fraud. At the Law Offices of Mark L. Horwitz, we have extensive experience in Medicaid, Medicare, and general healthcare billing that is often at the heart of allegations of conspiracy to provide unnecessary services. Working with accountants, healthcare experts and billing experts, we untangle complex billing codes and recreate timelines in order to undermine the allegations of state and federal investigators.
The Law Offices of Mark L. Horwitz advises and represents doctors, dentists, psychologists, and other healthcare professionals in regard to the following allegations related to conspiracy to provide unnecessary services:
- Unnecessary or redundant tests
- False diagnoses
- Medical equipment fraud
- Prescribing unnecessary medication
- Scheduling unnecessary procedures
- Unnecessary surgery
Honest Mistakes can Lead to Criminal Charges
Due to the complexity and confusing nature of medical billing, the wrong code can be used over and over again for different procedures or classification of care. When state or federal investigators review billing records, a simple mistake can look like a pattern of behavior indicative of fraud. Alternatively, mistakes in diagnostic billing codes can appear to be repeat or unnecessary healthcare services if an investigator doesn't understand what happened at the point of service in the doctor's office.
Under state and federal law, the government can seize any property or assets it believes were acquired with proceeds from illegal activity. These forfeiture proceedings can be either criminal or civil in nature; if they are civil, they can be separate from the criminal trial of the accused and are a civil matter. As a result, even if you are found not guilty of committing fraud, certain assets and property, if not seized, may be forfeited by the government in a civil proceeding. At the Law Offices of Mark L. Horwitz, our lawyers work with investigators and accountants to challenge criminal and civil forfeitures. If contacted early on in an investigation, our attorneys can often preempt attempts on the part of the government to initiate a criminal forfeiture.
Audits And Criminal Charges In Fraud Cases
The best defense is a good offense. This is more true in defending health care fraud than other types of crimes, because early intervention by a knowledgeable attorney may convince prosecutors not to bring charges.
Our criminal defense firm has helped clients avoid prosecutions by getting involved at the civil audit stage, before an official criminal investigation has commenced. We represent physicians and practice groups, hospital directors or employees, on-line pharmacies, and medical supply companies. We stand willing to help medical professionals statewide and nationwide respond to allegations at the civil audit stage, before criminal charges are filed.
What Causes An Audit?
In most cases, it all begins with a civil audit of questionable billing practices. This can be triggered by a variety of state or federal agencies, often in concert with private insurance industry organizations dedicated to exposing health care fraud:
- Medicaid/Medicare fraud investigation units in each state, reporting to the state Attorney General's office
- The Centers for Medicare and Medicaid Services, the division of the federal Department of Health and Human Services overseeing the agencies in each state
- The National Health Care Anti-Fraud Association
- The National Insurance Crime Bureau
- The Blue Cross/Blue Shield Bureau
While these agencies use sophisticated programs to identify billing patterns and use of ICD-9 and CPT codes, they commonly reach the wrong conclusions. As Medicaid and Medicare audit defense lawyers, we conduct our own investigation — meeting with providers and employees, reviewing documents and billing codes, and interviewing potential witnesses.
Very often, ambiguities in the classification of procedures or billing codes for services are interpreted one way by providers and construed another way by civil auditors. We use every resource to demonstrate a lack of criminal intent and convince auditors that our clients were trying to comply with a complex and ever-changing system.
Criminal Charges In Fraud Cases
We help clients analyze the risks of civil litigation and criminal prosecution. For example, our law firm defended accountants of Healthcare Corporation of America (HCA) in a high-profile case in which systemic fraud was alleged in its accounting department over filing of cost reports. Our clients were not charged in this matter.
We may push for alternatives to charges like pre-trial diversion. These agreements are not always offered and they do not preclude charges from other agencies. Criminal charges can originate from several government agencies, including:
- The FBI
- State Attorney Generals
- The Food and Drug Administration (FDA) or Drug Enforcement Agency (DEA)
- The Office of the Inspector General (Dept. of Health and Human Services)
- Defense Criminal Investigation Services (Dept. of Defense)
- The Office of Personnel Management (federal employee fraud)
We have extensive experience working with each of these law enforcement bodies, preparing for trial while negotiating possible deals to spare our clients from the worst penalties — prison time, loss of medical licensure, steep fines, asset forfeiture, and civil lawsuits.
Contact Our Law Firm
When your career, reputation and freedom are on the line, it pays to seek legal help from an experienced healthcare fraud defense attorney. Call the Law Offices of Mark L. Horwitz, a Professional Association, immediately to schedule a consultation. Call (407) 401-7224 or (866) 784-0023 or contact us online.