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By Spodek Law Group | December 16, 2020
(Last Updated On: July 28, 2023)

Last Updated on: 28th July 2023, 07:19 pm

Health care legislation is convoluted because there is no single law that governs healthcare fraud.  Instead, medical providers are forced to navigate numerous laws to avoid both criminal and civil charges for such crimes as health care fraud, anti-kickbacks, referrals, and false claims.  As a defendant you could face charges under any combination of these laws.  Severe consequences can ensue, including incarceration, steep fines, and loss of your medical license.
Health care fraud charges customarily involve a physician, a clinic, or other health care provider who may have charged for items or services that were either not actually provided to a patient or were not medically required.  The majority of health care fraud cases are based on fabricated bills submitted to Medicare, Medicaid, TRICARE, or private insurers.  That said, some charges may originate from whistleblowers who report illegal activity including patients, office staff, competitors, hospitals, or ex-business partners.
Some Examples of Health Care Fraud:

  • Fabricating certificates of medical necessity for the purpose of billing services
  • Unbundling and upcoding
  • Falsifying plans of treatment or medical records to substantiate payments
  • Misrepresenting diagnoses or procedures to inflate charges
  • Soliciting “kickbacks” for the provision of a range of services or goods
  • Falsifying insurance claims
  • Unlawful prescribing and dispensing of drugs

Our firm has successfully defended individuals and enterprises charged in health care fraud cases in federal district courts across the country. We have won dismissals, favorable plea agreements, and “not guilty” verdicts for our clients in federal criminal trials.
What Kinds of Health Care Fraud Charges are Possible?
There are numerous health care fraud offenses that can be brought in a federal court. Here are the most common ones, along with offenses that subject you to civil liability which can be combined with the federal crimes.  Frequently, prosecutors pursue both avenues in their aggressive approach to combat health care fraud.
18 U.S.C. § 1347 Criminal Health Care Fraud – To demonstrate criminal health care fraud, the government needs to bring evidence showing that the defendant knowingly and purposefully
1) executed a plan to defraud a health care benefit program or
2) made false statements in order to obtain funds held by federal health care programs, such as Medicare and Medicaid.
42 U.S.C. § 1320a-7b Anti-Kickback Statute – To get a conviction on criminal anti-kickback charges, the government must have strong evidence that the defendant knowingly and purposefully
1) offered or received something of value and
2) it induced or rewarded referrals of Medicare or Medicaid business.
18 U.S.C. § 287 False Claims Act – To get a conviction on criminal charges for false claims, the government needs to provide evidence that the defendant knowingly and purposefully
1) made a claim or statement to get the government to pay out money on a claim and
2) that the claim or statement that they made was false or fraudulent.
31 U.S.C. § 3729 False Claims Act – The government could also file a civil claim for false claims violations as noted above.  It also permits a private citizen or whistleblower to file a case on behalf of the government.
Stark Law 42 U.S.C. § 1395nn, 42 CFR Subpart J Physician Self-Referral Law – Unlike the Anti-Kickback Statute, the Stark Law is not a criminal statute.  Nonetheless, much like the False Claims Act, the government can bring civil charges.  Violations don’t require intent.  This means that even accidental or unknowing violations can bring a medical practitioner steep civil penalties.  Self-referral violations require proof that the accused:
1) made a referral for health care services to an entity the physician (or a person in their immediate family) has a financial relationship and
2) the entity made a claim for payment resulting from the referral.
The term “financial relationship” is a sweeping term that includes direct, indirect, ownership or investment, and also immediate family monetary interests.
18 U.S.C. § 1349 Health Care Fraud Conspiracy – To demonstrate that a health care fraud conspiracy exists, the government needs to provide evidence that
1) two or more persons agreed to a common scheme,
2) the defendant was aware of the unlawful purpose, and
3) the defendant willingly entered the agreement with the intent to further the unlawful purpose.   The plan does not have to be successful to end up in a conviction of this crime.  While several different conspiracy laws may apply in a health care fraud case, this is the one we have seen prosecutors use most often.
18 U.S.C. § 1341, 18 U.S.C. § 1343 Wire and Mail Fraud – To get a conviction on wire or mail fraud charges, the government must provide proof that
1) there is a plan to defraud and that,
2) the U.S. mail was used in the execution of the scheme or
3) interstate telephone or electronic communications were used to further the scheme.
These laws encompass all forms of fraud, not just health care fraud.  Even though this legislation cover similar conduct to the Health Care Fraud statute, prosecutors like to use these laws to threaten a defendant with greater penalties.
18 USC § 286 Conspiracy to Defraud the Government with Respect to Claims – To demonstrate conspiracy under this statute, the government prosecutor has to show evidence that the defendant knowingly
1) engaged in a conspiracy with others to obtain payment from the government,
2) the claim was dishonest,
3) the defendant was aware that the claim was false, and
4) the accused joined the conspiracy willingly.
Here again, the plan does not have to be successfully executed to end up in convictions on this charge.
42 U.S.C. § 1320a-7a Civil Monetary Penalties Law (CMPL) – This legislation gives the government authority to seek civil monetary penalties for a number of the health care fraud violations in the list above.  Often, the monetary penalty is calculated as three times the amount of the government’s financial loss.
Potential Penalties and Sentences for Health Care Fraud Convictions
The consequences for these crimes vary depending on which laws were violated.  That said, you can face severe penalties if you get convicted on health care fraud, conspiracy, anti-kickback, false claims, or wire and mail fraud charges.  Penalties include:
Prison – Your sentence can be anything from 1 year to life in prison depending upon your conviction as follows:
Health Care Fraud – up to life in prison if fraud results in at least one death; 20 years if serious bodily injury results.  Otherwise, you can get 10 years for other violations.
Anti-Kickback – as much as 10 years for a felony conviction, 1 year for misdemeanor
False Claims Act – up to 5 years in prison for each violation
Conspiracy to Defraud the Government with Respect to Claims – as much as 10 years
Wire or Mail Fraud – as long as 20 years (longer if done during declared disaster or emergency)
Possible Monetary Fines – Criminal and civil fines can tally up quickly under health care statutes.  Final monetary sanctions will depend on the specific offense and facts surrounding the case.  While the most serious criminal violation could get you a $1,000,000 fine, some fines can be applied on a per service or claim basis.  Fines can also be levied up to three times the government’s program losses and include legal fees.  An seasoned health care fraud attorney can help you navigate the complexity of health care law sanctions.
Here are some examples of fines included in the criminal legislation:
The Anti-Kickback Statute – as much as $100,000 or $500,000 for illegal use of the identification of a beneficiary
The Stark Law – The penalties under this statute vary by violation.  They can start from $15,000 per service and reach as high as $100,000.
Restitution – You could be mandated to refund payments received illegally through fraud or from self-referrals under the Stark Law.
Revocation of Medical License or DEA Registration – Getting convicted on Health Care Fraud or Anti-Kickback charges can get your medical license or DEA registration revoked.
Loss of Participation in Medicare/Medicaid Program – Convictions for Anti-Kickback Statute and Stark Law violations can end up in your debarment from participation in the federal Medicare and Medicaid programs.
Asset Seizure and Criminal Forfeiture –Federal agencies may seize your assets while you are under investigation for health care fraud.  These agencies include the DOJ, the FBI or the DEA.  In fact, you could lose ownership of those assets under criminal forfeiture.
National Practitioner Data Bank (NPDB) – Unlawful actions including convictions need to be reported in accordance with the Health Care Quality Improvement Act of 1983.  This could impact your participation with other insurance plans.
Possible Defenses Against Health Care Fraud
Lack of Intent or Error – To have committed fraud, you must have intended to cheat the government or insurer out of funds. If we can demonstrate that you acted in good faith but made an error, omitted information unintentionally, or billed improperly by mistake, you can avoid conviction of health care fraud.
Lack of Evidence – The government prosecutor must present evidence of your intent to defraud.  Their evidence must be sufficient in and of itself to prove intent beyond a reasonable doubt. Where there is a lack of sufficient evidence, conviction is impossible.
Compliance Planning – A seasoned health care fraud lawyer can assist you in developing a thorough, proactive compliance plan to detect or deter fraudulent activity in your practice or business. Evidence of a comprehensive compliance plan can be used to show you lacked intent to engage in health care fraud.
Consent – You have not committed fraud if you were given consent for your actions by the alleged victim. Evidence that you were granted permission to do the act that you are accused of is a solid defense against fraud charges.
Safe Harbor Provisions in the Anti-Kickback Statute – There are a number of “safe harbor” provisions.  These include certain investments, personal services, rentals of space or equipment, management contracts, referral disclosures, sale of practice, warranties, discounts, group purchasing arrangements, waivers, certain malpractice subsidies, some forms of price reductions, practitioner recruitment, and referrals for specialty services. Other situations may apply based on specific services such as ambulatory surgery centers or health centers.
Exceptions in the Stark Law – Stark Law Exceptions may permit physicians to make referrals in limited circumstances. Exceptions can be made for in-office ancillary services, fair market compensation arrangements, non-monetary compensation, and risk-sharing agreements.   Doctors need to be mindful that even though a Stark Law exception may apply, if a referral is made in exchange for payment, this exchange might still be a violation of the Anti-Kickback Statute.
Voluntary Disclosure – The federal agencies that enforce federal fraud and abuse legislation offer incentives to self-report violations.  Incentives include reduction in payments owed. That said, there are risks with self-reporting and an experienced attorney can help you determine if that is an appropriate avenue for you.
COVID-19 Waivers – The federal government recently implemented COVID-19 waivers which relax some health care fraud regulations. These might only be temporary, and an experienced health care fraud lawyer can help you to determine if a waiver applies in your situation.
Recent Developments and Current Trends in Health Care Fraud
Tele-Health and COVID-19
Although COVID-19 ushered in the loosening of certain regulations to facilitate delivery of health care services such as telehealth, with release of trillions of dollars in funding under the CARES Act, the DOJ and OIG (Office of the Inspector General) will continue to closely monitor health care for possible criminal abuse. The OIG and the Department of Health and Human Services have also expressed concerns that fraud may be on the rise, particularly in relation to COVID-19 testing services.
In addition, the government has temporarily lifted restrictions on delivery of health care services via telehealth, raising concerns for increased fraud exposure
The Opioid Epidemic
While the opioid epidemic rages on, opioid use and prescriptions remains a top priority for the OIG. The OIG continues to keep a spotlight on pharmaceutical companies, physicians, private equity groups and pharmacy technicians to fight against fraud and over prescribing.
How Your Health Care Fraud Defense Attorney Can Assist You
Our law firm has successfully defended individuals and businesses facing charges of health care fraud in federal district courts across the United States.  We have won dismissals, favorable plea agreements, and “not guilty” decisions for our clients in federal criminal trials.  This is critical since a criminal conviction could prevent you from carry on your medical practice.
Health care law is extremely complex. Your experienced health care fraud defense lawyer can help you navigate these serious charges. Our lawyers have the experience and resources necessary to defend even the most complex health care fraud cases.  We nurture close relationships with former federal agents who we work with as investigators and forensic accountants.  They help us to review the extensive medical billing records that are customarily a large part of successfully defending such cases. On top of that, we hire physicians and other medical experts to review the government’s allegations.  They can show us where the prosecution’s case has weaknesses and help us mount a successful defense.
Get in Touch With Us Today
If you or your loved one has been charged with any form of heath care fraud in federal court, feel free to contact our health care fraud attorneys to discuss your case confidentially.  We represent clients who are facing charges of Medicare fraud, Medicaid fraud and TRICARE fraud cases and many more in federal courts nationwide.

Health care fraud is a complex area with numerous potential charges, including criminal health care fraud, anti-kickbacks, false claims, self-referral violations, and conspiracy, among others. Penalties for these crimes can be severe, including incarceration, steep fines, loss of medical license, and more. To defend against health care fraud charges, a skilled defense attorney may pursue strategies such as demonstrating lack of intent or error, lack of evidence, establishing compliance plans, applying safe harbor provisions or Stark Law exceptions, voluntary disclosure, or invoking COVID-19 waivers.

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