How to Defend Against Health Care Fraud Allegations


Health care providers across the country are under intense scrutiny from federal law enforcement agencies, such as the Office of the Inspector General of Health and Human Services (OIG)the Centers for Medicare and Medicaid (CMS)and even the Ministry of Justice (DOJ). Detroit-based providers are even more likely to be investigated for healthcare fraud due to the local team of healthcare fraud inspectors.

These investigations are impractical and allegations of fraud can cripple a health care provider.

Prevent whistleblower complaints by encouraging internal reporting

Many health care fraud cases and allegations begin when someone – usually a disgruntled current or former employee – brings evidence of alleged wrongdoing to a law enforcement agency for review. Even if done out of revenge or to capitalize on some of any possible recovery collected under the False Claims Act (31 USC § 3730(b)), the substance of this alleged health care fraud can pose a significant threat to a health care provider.

It is essential to prevent these whistleblower allegations from reaching law enforcement. While contractual provisions that prohibit employees from doing so will not be enforced in court, healthcare companies can instead encourage internal reporting. This allows the company to carry out an internal investigation to find out whether there has been wrongdoing or not, and to take the necessary measures to protect its interests.

However, these internal investigations must be legitimate to work. If it is clear that the internal reporting mechanism is a sham intended to conceal evidence of wrongdoing, employees will bring all the evidence they have to law enforcement and undermine the very existence of the internal reporting system. .

Intent to defraud is important, but it is also difficult to prove

Many health care fraud allegations are filed under the Federal False Claims Act, which prohibits false or inaccurate claims for compensation from a federal government program, such as Medicare or Medicaid. It is important to note that these allegations can be pursued as civil or criminal charges and cases, depending on whether or not there is an intent to defraud the program. If law enforcement can show an intent to defraud the program, it may be a crime.

Intent is always one of the hardest things for law enforcement and prosecutors to prove. It requires entering the mind of an accused. Because this is impossible, intent is usually demonstrated by circumstantial evidence: statements and events that indirectly provide clues to a suspect’s intentions.

As Dr. Nick Oberheiden, founding partner of healthcare fraud defense law firm Oberheiden PC, puts it,

“A qualified healthcare fraud defense attorney can raise reasonable doubts about this circumstantial evidence by showing how they all have innocuous, non-criminal, and reasonable explanations. This can prevent a False Claims Act case from becoming a criminal case.

Of course, successfully fighting this proof of intent, with the help of qualified health care fraud defense attorneys, still leaves the civil claims of the False Claims Act. These cases carry significant penalties, even if they do not involve prison terms. The defendants face paying triple damages – three times what they received in claims against the government program – plus a fine for each false claim made. Additionally, health care providers will also likely be excluded from billing for government programs in the future, reducing their ability to generate revenue.

Healthcare fraud investigations are especially common in Detroit

The likelihood of facing a health care fraud investigation exists everywhere. However, the risks are higher in Detroit because the area was chosen for more intense enforcement, largely due to the high number of people enrolled in federal health programs like Medicare and Medicaid.

Acting on the theory that more Medicare and Medicaid patients would mean more government claims, which therefore means more fraud, the DOJ and OIG collaborated in May 2009 to create the Health Care Fraud and Enforcement Action Team (HEAT). This is a group of dedicated health care fraud investigators, responsible for detecting and cracking down on fraud committed by health care providers.

HEAT squads are located in nine different cities in the United States, one of which is located in Detroit.

With more resources and a higher degree of skepticism on the side of law enforcement, Detroit health care providers who participate in federally funded health care programs are at increased risk of doing the under investigation for healthcare fraud.

Compliance and internal audit are crucial

The two best ways to avoid a conviction or civil judgment for health care fraud in Detroit are to develop strict compliance procedures and to perform an internal audit to ensure that these rules are followed.

These rules not only reduce the likelihood of a criminal conviction or civil judgment; they also reduce the chances that law enforcement will receive or collect evidence of wrongdoing that triggers a health care fraud investigation.

Creating a compliance strategy is not something healthcare providers should take lightly. These rules should cover all regulations that have been promulgated by the many federal government agencies that oversee and enforce health care law. Compliance rules must be global, otherwise they risk giving a false sense of security. Hiring an outside attorney knowledgeable in healthcare fraud defense may be the best way to ensure that the resulting compliance protocol is sufficient.

But writing the rules goes no further. Employees must be properly trained and retrained so that they know their role and the risks of moving away from it. Leaders need to know how to respond to an audit or signs of an upcoming investigation.

This is where internal audit can prove invaluable. By hiring outside help to perform an internal audit for signs of healthcare fraud, healthcare providers can ensure that their compliance strategy is on track, being followed, and will protect the undertaking certain serious civil or criminal penalties.

Unfortunately, many health care providers view these measures as wasteful and unnecessary expense. Too often, however, they find that what they would have spent on compliance and auditing is only a fraction of what they end up spending defending against an allegation of healthcare fraud. in Detroit.

Oberheiden PC © 2022 National Law Review, Volume XII, Number 171


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