Case Result: Two Physicians Charged With Conspiracy, Unlawful Prescribing Acquitted on All Counts
Our healthcare criminal lawyers’ in-depth knowledge of addiction medicine allowed our physician client to have the best possible chance at acquittal.
Chicago is recognized as a home to exceptional healthcare providers and services throughout Illinois, the Midwest, and the U.S. Unfortunately, as a major metropolitan area with many individuals utilizing federal and state healthcare program benefits, Chicagoland has also become a major target for healthcare fraud investigation and prosecution.
It has one of the highest rates of federal healthcare fraud indictments in the country — so much so that, since 2010, the U.S. Department of Justice (DOJ) has operated a “strike force” to prosecute healthcare fraud in and around Cook County.
And if you’re a Chicago-based physician, pain management specialist, pharmacist, nurse, or chiropractor, and you receive a grand jury subpoena or are contacted by a federal agent for a healthcare fraud investigation, your whole career is at stake.
You could be facing more than just hundreds of thousands of dollars in fines and decades of prison time. You also could lose your license. Your business and personal property could be in forfeiture.
If you find yourself accused of healthcare fraud, there is no time to delay. Any action you take could affect you and your family for years to come.
But first, you need to know what healthcare fraud is all about, how investigations take place, and the paths cases can go.
Healthcare fraud is a type of white-collar crime that involves the filing of fraudulent healthcare claims. This can include anyone who bills or causes a bill to be submitted to Medicare, Medicaid, TriCare, or an insurance company. A false claim may include billing for services that have not been performed, billing for something medically unnecessary, upcoding, and using improper CPT codes.
Medical fraud cases, like most federal crimes, involve deceit, concealment, and violation of trust. They are not dependent on the threat of physical force or violence.
The government must prove all three factors beyond a reasonable doubt.
Many attorneys who do not specialize in healthcare fraud are unaware that violations of billing requirements, such as local coverage determinations (LCDs) or national coverage determinations (NCDs), are insufficient, alone, to satisfy this requirement.
Despite this fact, the government and the Department of Justice (DOJ) Healthcare Fraud Strike Force continuously charge healthcare providers with healthcare fraud charges for differences of opinion related to the practice of medicine or pharmacy. These include:
Most federal healthcare fraud investigations begin through audits, whistleblower tips (also known as Qui Tam matters), or patient complaints.
Healthcare fraud is investigated by various federal, state, and local agencies, including:
Additionally, local law enforcement may participate in a larger healthcare fraud investigation or conduct their own through a unit.
When it comes to auditing, the Centers for Medicare & Medicaid Services (CMS) and HHS review statistical data generated from Medicare and Medicaid bills to look for outliers. Once the OIG or CMS finds an outlier, it typically conducts an audit and, in severe cases, may immediately refer a case for criminal prosecution.
If you believe your practice is an outlier, you should contact a healthcare fraud defense attorney to begin your defense immediately, as quick action and a compliance plan may prevent indictment.
Once the OIG or CMS finds an outlier, it typically conducts an audit and, in severe cases, may immediately refer a case for criminal prosecution.
During an audit, HHS will obtain billing records and request medical records. An initial audit may require review of only a few files, often called a probe audit.
If fraud is suspected after an audit, the case will be referred for investigation and prosecution. When the case is referred, federal law enforcement agents will begin investigating the billing data and interviewing witnesses in order to prepare a case.
Once the case is prepared, an attorney from a local U.S. Attorney’s Office or the Healthcare Fraud Strike Force will prepare an indictment and take a case to a grand jury. If the grand jury returns an indictment, the subject of that indictment will be charged with healthcare fraud and will be required to defend that indictment in court.
Healthcare fraud is usually prosecuted by the U.S. Attorney’s Office in the DOJ and the DOJ Healthcare Fraud Strike Force, as a violation of federal law. There are criminal charges specifically aimed at healthcare professionals:
In addition, Illinois has its own Anti-Kickback Statute.
Healthcare fraud may also be prosecuted in relation to a healthcare professional’s prescribing habits under the Controlled Substances Act (CSA). The government relies on vague requirements that a provider violates the CSA when a controlled substance is not prescribed for a legitimate medical purpose, and when the prescriber is acting outside his/her usual course of professional practice. These terms are not clearly defined and are very subjective.
You should be concerned the minute you receive a subpoena or a federal investigator asks to speak to you about a healthcare investigation. When investigators reach out to speak with someone, the investigation itself has been active for a long time. They already have their strategy drawn out, and they know what they are looking for.
They want you to talk. They want you to tell your story — without a lawyer. Without any lawyer, let alone a Medicare fraud attorney.
You can’t afford to fall into that trap.
The moment you receive a target letter from the DOJ or are contacted by federal agents is a good time to consult a Chicago health care fraud defense attorney. By developing a defense strategy while the case is still in the investigatory stage, there is a better chance of resolving the case before any formal charges are filed.
You have to keep in mind that federal investigators have received the best training in the world on questioning and interrogation techniques. Most people don’t realize that the psychological manipulation has begun before the first question is even asked.
Sometimes it really is like the “good cop/bad cop” scenario in the movies and on TV. The bad agent will be aggressive, make accusations, and be threatening; the good agent will act like your friend who is sympathetic and understanding, trying to help you out, and defending you from the bad cop. They want you to “clear something up” or ask you to explain some “small mistakes” or “minor inconsistencies” found in an audit.
It’s not a fair fight for you to speak to investigators by yourself. The only way to be truly prepared for questioning by federal agents is to be represented by an experienced Chicago Medicare fraud defense lawyer.
An indictment is the formal start to a healthcare fraud prosecution. A grand jury is presented with evidence and makes the decision over whether to issue an indictment, which is kept under seal until the prosecutor is ready to move forward with the case. Once the indictment is unsealed, the defendants named in the indictment will be arrested.
By retaining a Chicago healthcare fraud attorney before indictment and arrest, this process can be much less intimidating. A great defense to healthcare fraud requires early intervention at the earliest possible stage. If an indictment has not been issued, a thorough investigation and compliance plan may remedy the issue before indictment.
When a healthcare professional is indicted for healthcare fraud, the government has probably completed a thorough investigation.
A great defense to healthcare fraud requires early intervention at the earliest possible stage. If an indictment has not been issued, a thorough investigation and compliance plan may remedy the issue before indictment.
If an indictment has been issued, counsel must work quickly to analyze insurance claims, patient records, witness statements, and the government investigation.
The ideal defense attorneys will handle your healthcare fraud charges by first reviewing the medicine in order to make the case that the claim was properly billed or, at the very least, not billed with the intent to defraud. Such a defense requires expert testimony from a certified biller and a health professional of the same profession, to testify that the medical decision-making was not fraudulent.
If the argument cannot be made that the medical decision-making is defensible, we review the Medicare bills to argue that the amount of the fraud (called the loss amount) was so low that it is not evidence of a scheme.
If a trial is necessary, it is imperative that expert testimony is presented to assert that the claims were not fraudulent. It also is vital that certain motions and objections are made that would restrict the government’s evidence in order to improve your chances of a successful outcome.
The initiation of healthcare fraud charges begins with the unsealing of a federal indictment. An indictment is issued by a grand jury and is then kept sealed until the prosecutor is prepared to arrest and process all defendants.
Once the indictment is unsealed and you are formally charged, you and any co-defendants will either be arrested by federal agents, or your attorney(s) will be notified of the need to “walk in” for arraignment.
This is one reason why it’s imperative to contact a Chicago healthcare fraud defense attorney who is familiar with the prosecutor. Your counsel may be able to prevent arrest on the indictment and request that you “walk in” for initial appearance without the embarrassment that an arrest from your home or work will cause.
This begins a series of stages in the adjudication process leading to the resolution of the case in one of three ways: trial, negotiation and acceptance of a plea offer, or a dismissal. Here are the general steps during the progression of a healthcare fraud case:
Sentencing for violations of federal law is informed by Federal Sentencing Guidelines, which provide a sentencing range in months of imprisonment based on a person’s criminal history and the offense itself. Various mitigating or aggravating factors can decrease or increase the sentencing range.
While the court is not required to abide by the sentencing range outlined by the guidelines, it provides a framework that is heavily relied on in courtrooms throughout the country.
Our Chicago healthcare fraud defense attorneys are skilled at calculating these guidelines. Understanding an accurate score of individual factors — such as the fraud loss amount or the drug quantity in cases involving convictions under the CSA — is important when advocating for the overall lowest possible sentence.
As a result of the Affordable Care Act, the number of claims billed to a healthcare program is considered prima facie evidence of the loss amount. In the event of conviction and in order to achieve a lower sentence, it is imperative that defense counsel challenge the notion that the number of claims billed is the amount of the loss to the government.
Every healthcare provider knows that Medicare, Medicaid, and private insurance companies do not actually pay the amount billed. Usually it is some lesser amount.
Under no circumstances should someone facing healthcare fraud charges accept the government’s recitation of the loss amount. The government’s loss number is generally inflated and created using poor methodology.
But a well-skilled healthcare fraud defense counsel will know other strategies useful for determining a lower loss amount, such as claim sampling and extrapolation.
As an example, let’s say a Naperville pharmacist fraudulently billed Medicare for reimbursement of prescriptions for non-existent patients. If the government claims the loss to the Medicare program was at least $1 million but less than $1.5 million, the potential prison sentence could be 30 to 37 months.
But, if by aggressively investigating the case data, a team of Chicago Medicare fraud lawyers can show the loss to the Medicare program was actually less than $550,000, the potential prison sentence can be substantially lowered to 18 to 24 months.
Once that is accomplished, your healthcare defense attorneys can work toward getting the final sentence recommendation to a level that can be non-prison.
This scenario is precisely why you need a dedicated Chicago healthcare fraud defense attorney to defend your Medicare or Medicaid fraud case.
The consequences of a healthcare fraud felony conviction can last longer than just a term of incarceration, so it is important to weigh all your options before accepting any plea deal or deciding to go to trial. A plea to accept a felony charge for healthcare fraud or Medicare fraud should not be based solely on the potential jail time.
In addition to a possible prison term (many healthcare fraud crimes carry a potential maximum 10- or 20-year prison sentence), a conviction may result in:
Chicago healthcare fraud defense attorneys understand the magnitude of these ramifications on a healthcare professional’s career, and they will work to minimize the fallout.
Because our attorneys have been battling these federal Medicare fraud strike forces for several years, so our healthcare clients get the kind of Medicare fraud defense no one else can offer.
We have keen insight into the feds’ and the strike force’s tactics. We can detect their weaknesses. And we know how to get results for our clients facing healthcare fraud indictments. Our Chicago healthcare fraud defense attorneys have a reputation in winning many cases by dismissal or not-guilty verdicts at trial.
We also know that fighting a case through trial places a heavy burden — emotionally and financially — on a family. And one of the critical differences between the Chapman Law Group and other criminal law firms is our focus on preventing an arrest and charges from being filed.
We actively investigate allegations and start building a defense for our clients before the case ever goes to court.
Many times, we can convince the government not to file charges, contending that our client committed no crime. In other instances, we are able to resolve a case through a diversion agreement, which results in a case dismissal. And in some situations, we can settle a case through a civil agreement and payment of a fine.
Even in situations where criminal charges are filed, we are often able to get a result that would substantially reduce the potential jail time and other penalties.
And, moving forward, our Chicago healthcare fraud lawyers can help you develop a stronger, more effective compliance program for your practice, in order to avoid accusations of healthcare fraud and be prepared if the government decides to conduct an audit.
For 35 years, our healthcare criminal law attorneys have aggressively defended licensed healthcare professionals on criminal matters — from the internal investigation right up through trial.
We handle multistate federal criminal matters investigated by the DOJ; state felony matters; and, where criminal sanctions are possible, investigations commenced by the HHS, FBI, DEA, FDA, and DOJ.
Our White-Collar Defense and Government Investigations practice groupis led by a former federal prosecutor and staffed with attorneys who exclusively defend healthcare fraud cases.
Many of our attorneys have earned advanced degrees in healthcare law from Loyola University Chicago School of Law — the top school in the U.S. for health care law.
We are solely dedicated to representing licensed healthcare providers — including physicians, pain management specialists, pharmacists, and psychologists — in criminal law matters such as healthcare fraud.
Very few law firms in the U.S., if any, can make these claims and back them up with our results.
We are proud to serve licensed healthcare professionals in Chicago and its surrounding counties and communities, including Evanston, Schaumburg, Aurora, Naperville, Joliet, Waukegan, Wheaton, Orland Park, Elgin, Cook County, Lake County, DuPage County, Kane County, and Will County.
Chapman Law Group has four national offices: in Detroit, Michigan; Miami and Sarasota, Florida; and Los Angeles/Southern California.
Contact us today to learn more about what an experienced, reputable Chicago health care fraud defense attorney can do for you, and how we are ready to help you with the best healthcare fraud defense.
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