Medical practitioners are frequent targets of federal and state law enforcement agencies and prosecutors for alleged violations of Medicare and Medicaid rules, regulations and procedures. Doctors, therapists, nurses and pharmacists must contend with the complexities and ambiguities of federal health care laws that can result in seemingly innocent activities becoming the subject of a Medicaid or Medicare audit or criminal investigation.

Common Health Care Fraud Investigations

The Federal Bureau of Investigation, the lead law enforcement agency in most health care fraud investigations, estimates the annual cost of fraud in health care as $80 billion a year. Most criminal fraud schemes involve the following:

• Billing for nonexistent services
• Upcoding, in which billing codes for more expensive procedures or supplies are used in place of the true code
• Duplicate claims
• Unbundling, in which tests or procedures that should be billed together are separated to increase the cost
• Providing services that exceed those actually required by the patient’s medical condition
• Kickbacks

Billing Practice Prosecutions

Medical fraud prosecutions rely upon documents such as patient records, bill statements and other documents that prove a violation of the law. Practitioners should keep in mind that the complexities of the Medicare and Medicaid regulations and procedures, particularly when applied to billing procedures and practices, could be confusing for investigators, prosecutors and judges as well as for the individual charged with criminal wrongdoing.

Defending against a billing practice violation should begin with obtaining as much disclosure as possible of the documentation supporting the government case. Each document should be reviewed to determine if the paperwork actually supports the allegations made by the government.

Kickback Allegations

Receiving payment in return for referring patients or business to a health care provider is, according to many federal prosecutors, illegal. However, this is not always true. Government prosecutions under anti-kickback laws require prosecutors to prove that the payments were willfully made or received, and that the person accused of violating the law is not eligible for protection under the safe-harbor provisions of federal law.

A person accused of paying for the referral of business to a health care provider must have made the payment knowing that it violated the law. The kickback laws are so complex and filled with ambiguities that legislators created safe harbors to protect those whose innocent actions could become the subject of criminal prosecution by overzealous prosecutors and investigators.

For example, employer payments to employees are protected by safe-harbor provisions in the Medicaid and Medicare laws from being the target of prosecution. This protection applies even when the payments are for patient or business referrals to a health care provider.

If you are the target of a health care fraud investigation, consult with Rand Mintzer at 713-862-8880 before speaking to investigators or prosecutors.