Detroit Healthcare Fraud Defense Attorneys

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What to Know About Federal Healthcare Fraud Charges

If you’re a Detroit-based physician, pain management specialist, pharmacist, nurse, or chiropractor, and you’ve been accused of healthcare fraud, you need to act immediately.

Why?

Because Detroit has one of the highest rates of federal healthcare fraud indictments in the country — so much so that in 2010 the Department of Justice created a special “strike force” to prosecute healthcare fraud in the Detroit area.

And although Detroit is considered a hotbed for healthcare fraud, healthcare providers from all corners of Michigan — from Grand Rapids to Flint, and from Lansing to Ann Arbor — are susceptible. 

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.

What is Healthcare Fraud?

Healthcare fraud is a type of white-collar crime that involves the filing of fraudulent healthcare claims. 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. 

When a claim is submitted for reimbursement for services that were either not medically necessary, not conducted, overbilled, or not allowable, the person and entity that caused the bill to be submitted can be prosecuted for fraud.

Healthcare fraud can be committed by anyone who bills or causes a bill to be submitted to a healthcare entity. This definition is very broad, and it does not require that someone actually submit a bill to a health benefit program.

In order to be convicted of healthcare fraud, the government must prove, beyond a reasonable doubt, that the defendant: 

    • devised a scheme or artifice;
    • to defraud a healthcare benefit program; and
    • that the scheme was executed.

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:

    • Exceeding opioid prescribing guidelines
    • Exceeding urinalysis testing guidelines
    • Exceeding guidelines for back injection
    • Improper entries into medical records
    • Upcoding
    • Unbundling
    • Billing improper CPT Codes (99211-5)

The DOJ Healthcare Fraud Strike Force has operations in major cities across the U.S, including Philadelphia, Houston, Chicago, and Dallas.

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What Are the Most Common Healthcare Fraud Crimes?

    • Accepting kickbacks for patient referrals. The Federal Anti-Kickback Statute (AKS) prohibits offering or providing anything of value to induce the referral of Medicare or Medicaid business.
    • Submitting false or inflated claims to federal healthcare programs such as Medicare, Medicaid, and TriCare, as well as third-party insurance carriers (UnitedHealthcare, Blue Cross Blue Shield).
    • Billing for services or durable medical equipment not provided.
    • Billing for more expensive services or procedures than were actually provided or performed.
    • Physician self-referral (Stark Law).
    • Performing medically unnecessary services solely for the purpose of generating insurance payments.
    • Making false statements on applications or contracts to participate in Medicare or Medicaid programs.

How Does a Federal Health Care Fraud Investigation Begin?

Most federal healthcare fraud investigations begin through audits, whistleblower tips (also known as Qui Tam matters), or patient complaints.

Virtually everyone is familiar with the FBI, but few are aware of the Department of Health and Human Services’ Office of the Inspector General (HHS-OIG). The OIG is the nation’s leading law enforcement agency for investigating healthcare fraud. Its focus is to protect beneficiaries and federal healthcare programs such as Medicare, Medicaid, and TriCare. More times than not, the OIG is leading the healthcare fraud investigation, working directly with the prosecutors from the U.S. Attorney’s Office.

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.

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.

Who Investigates Healthcare Fraud?

Healthcare fraud is investigated by the following agencies:

  • DOJ Healthcare Fraud Strike Force
  • Health and Human Services Office of Inspector General (HHS-OIG)
  • Federal Bureau of Investigation (FBI)
  • Drug Enforcement Administration (DEA)
  • The Appalachian Regional Prescription Opioid Taskforce
  • Local Medicaid fraud control units (such as the Detroit Medicare Fraud Strike Force)
  • State Medicaid fraud control units

Typically, healthcare fraud is initially investigated using data. The Centers for Medicare & Medicaid Services (CMS) and HHS review statistical data generated from Medicare and Medicaid bills to look for outliers.

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.

How is Healthcare Fraud Prosecuted?

Healthcare fraud is predominately prosecuted by the federal government and the DOJ Healthcare Fraud Strike Force. The following laws are utilized by the federal government to prosecute healthcare fraud:

In addition, Michigan has its own Anti-Kickback Statutes.

Typically, a healthcare fraud indictment, which is the document that charges healthcare fraud, contains a charge of healthcare fraud conspiracy along with several individual executions of healthcare fraud. The indictment may also contain a money laundering charge in addition to a forfeiture charge.

The government charges healthcare fraud conspiracy because the federal conspiracy rules are extremely relaxed; they only require that the government prove an agreement to commit healthcare fraud and an act in furtherance of the scheme. As a recent example, 11 Detroit-area doctors were among 16 individuals who pleaded guilty to conspiracy in a wide-ranging healthcare fraud scheme. They were sentenced to at least nine years each in prison and hundreds of millions in fines for distributing 6.6 million opioids and submitting $250 million in false billing

The government also makes attempts to seize a significant amount of assets of those charged with healthcare fraud, chiefly to prevent the defendant from using allegedly unlawful proceeds to defend healthcare fraud charges.

When Should I Be Concerned About a Healthcare Fraud Investigation?

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, which is why you should call a Detroit criminal defense attorney who specializes in healthcare fraud defense first. 

How Should I Be Prepared for Questioning by Federal Agents?

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 Detroit Medicare fraud defense lawyer.

What Does It Mean to Be Indicted for Healthcare Fraud?

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 Detroit Medicare fraud attorneys 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.

Our Detroit health care fraud defense lawyers at Chapman Law Group have developed a professional rapport with many prosecutors. We are often able to arrange being notified before an arrest is made and, instead, have our clients voluntarily walk in for their initial appearance.

How are Healthcare Fraud Charges Defended?

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.

I Have Been Charged with Medicare Fraud. What Will Happen to Me?

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 Detroit healthcare fraud defense lawyer who is familiar with the prosecutor. We 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:

    1. Pre-Indictment Investigation: This is not just when the government investigates, but also when your Medicare fraud defense attorney conducts an investigation and makes preparations to engage in pre-indictment negotiations. During this phase, you and your attorney have the best chance of convincing the government not to pursue a healthcare fraud case.
    2. Indictment: The unsealing of a federal indictment triggers federal criminal charges and the trial process. During this phase, the case will move very fast, which is why it is imperative to have a healthcare fraud defense attorney on your team prior to indictment.
    3. Pre-Trial Services Interview: The pre-trial services division will interview you to determine whether you can be released on bond and, if so, under what conditions. Release on bond and conditions of bond can drastically change the landscape of the case, which is why you need your counsel present during the interview.
    4. Arraignment/Bond: The arraignment is the first court appearance, during which you are informed of the charges, by a federal magistrate, to determine how you will plead. The judge will then determine whether you can be released on bond and, if so, sets a bond amount. Most of our clients are released on bond and are not held in custody as the case is pending.
    5. Discovery Phase: Next, the discovery process begins as the government turns over the evidence it has gathered through its investigation. The discovery in a healthcare fraud case is usually quite voluminous, as it often contains lengthy documents such as patient records, billing data, financial statements, and pharmacy dispensing logs. A knowledgeable healthcare attorney can analyze the government’s evidence and understand the strengths and weaknesses, which helps in developing an overall case strategy and knowing the best step to take next. For instance, this could involve filing a motion due to the insufficiency or inadmissibility of the government’s evidence, or conducting an independent investigation to dispute the government’s findings.
    6. Motions Phase: This is when your counsel files pre-trial motions designed to narrow the case, restrict the government’s evidence, or dismiss one or all charges.
    7. Plea Negotiation: Only after reviewing the evidence, researching, filing, arguing, and receiving the judge’s ruling on any relevant motions, and engaging in a thorough conversation with our client about their case, is a plea offer considered. While plea negotiations with the prosecutor are ongoing throughout the pretrial stage, we do not rush a client to accept any offer deal the government might make without careful consideration. The ultimate decision over whether to proceed to trial or accept a plea offer is the client’s choice, but your health care fraud defense lawyer will work to ensure your determination is based on facts and not fear of the trial courtroom.
    8. Pre-trial Hearing: The defense team, prosecution and judge will meet to make a final determination over whether the case will proceed to trial, or if a plea offer has been negotiated and accepted. If a plea offer has been formally rejected, the judge will not typically accept a negotiated plea after this hearing; however, you may still choose to plead guilty as charged on a later date, but without the agreed-to terms of a plea deal. At the pre-trial hearing, the parties will discuss any outstanding business that needs to be resolved before trial, such as the logistics of the trial.
    9. Trial: The trial is the stage when the government presents its evidence to the factfinder. The factfinder is either the jury, or, if the parties agree to a trial without the jury, the judge. It is the government’s job to prove each element of the charged offenses beyond a reasonable doubt. Our healthcare fraud defense attorneys will develop a strategy specific to your case, while drawing from our vast trial experience to rebut the government’s allegations. After both sides have presented their evidence, the jury or the judge makes a finding of guilty or not guilty on each charged offense. A healthcare fraud trial can last anywhere from a week to several months long.
    10. Sentencing: Sentencing will occur on a scheduled date after pleading guilty or being found guilty at trial.
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What Are the Consequences of a Healthcare Fraud Conviction?

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

The potential consequences of a conviction of healthcare fraud, which our Michigan healthcare lawyers regularly defend, are:

    • Mandatory felony conviction
    • Prohibition on billing any federal entity for between five years and life
    • Loss of professional license (medical license, pharmacy license, nursing license)
    • Jail time (many healthcare fraud crimes carry a potential maximum 10- or 20-year prison sentence)
    • Forfeiture of all assets related to the alleged offense
    • Fines of up to $250,000 per offense
    • Restitution
    • Job loss
    • Loss of board certification status

At Chapman Law Group, our Detroit healthcare fraud defense attorneys understand the magnitude of these ramifications on a healthcare professional’s career, and we work to minimize the fallout.

How are Healthcare Fraud Sentences Determined?

Federal sentences are created using the Federal Sentencing Guidelines, which are a framework of rules used by judges to calculate the range of sentences for federal crimes. If someone is convicted of healthcare fraud, the sentence is almost exclusively determined by the fraud loss amount to the entity billed; generally, it is the value of claims billed.

Each crime is assigned an offense level. Levels are increased or decreased depending on specific details of the case. After all factors are considered, the final offense level corresponds to a penalty range.

Possible prison sentences for health care fraud cases largely depend on the amount of economic loss to the federal reimbursement program. A basic way of looking at it is, an increased loss amount equals an increased prison sentence.

As a result of the Affordable Care Act, the amount 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 (your healthcare fraud lawyer) challenge the notion that the amount of claims billed is the amount of the loss to the government.

How is Economic Loss Calculated for Healthcare Fraud?

The rules and process for calculating loss amount favor the government. The sentencing guidelines define “loss” as “the greater of actual loss or intended loss,” and provide that the sentencing judge “need only make a reasonable estimate of the loss.” When a judge calculates the intended loss, absolute accuracy is not required, so long as the calculation is not “outside the realm of permissible computations.”

Courts have held losses caused by the acts of co-conspirators that were reasonably foreseeable to the defendant should also be included in the loss calculation. The sentencing court should, however, limit the defendant’s liability to those acts of coconspirators that were reasonably foreseeable and part of the criminal activity that the defendant “agreed to jointly undertake.”

In a healthcare fraud case, the amount fraudulently billed to the federal insurance program (Medicare or Medicaid) is “prima facie evidence of the amount of loss [the defendant] intended to cause,” but there can be additional evidence presented by the defense to demonstrate that this total “exaggerates” the defendant’s intent.

Loss includes all relevant conduct, including charged, uncharged, and acquitted conduct and is not limited to losses directly attributable to the defendant. For example, a defendant convicted of defrauding Medicare can be held responsible for the losses not only to the Medicare program, but also to private insurers and patients.

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 Michigan healthcare fraud defense attorney will know other strategies useful for determining a lower loss amount, such as claim sampling and extrapolation.

As an example, let’s say a Grand Rapids 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 Michigan 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 Detroit healthcare fraud defense attorney to defend your Medicare or Medicaid fraud case.

Why Should I Call the Detroit Healthcare Fraud Defense Lawyers at Chapman Law Group If I’ve Been Accused of Healthcare Fraud?

Because our Detroit healthcare fraud defense lawyers 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 Detroit 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 ever 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, we can help you develop a stronger, more effective compliance program for your practice, so as to avoid accusations of healthcare fraud and be prepared if the government decides to conduct an audit.

Very few law firms in the U.S., if any, can make these claims and back them up with our results.

For Healthcare Fraud Criminal Representation in Detroit, the Attorneys at Chapman Law Group Stand Apart

For 35 years, the Detroit health care fraud defense lawyers at Chapman Law Group 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.

We have honed our expertise in defending providers against healthcare fraud charges by obtaining pretrial dismissals, not-guilty verdicts, and beneficial plea agreements in federal courts across the U.S.

Our clients include practitioners in cities, counties, and communities all across Michigan — Detroit, Ann Arbor, Dearborn, Grand Rapids, Troy, Lansing, Flint, Saginaw, Midland, Muskegon, Bay City, and Kalamazoo, as well as Oakland County, Wayne County, Macomb County, Washtenaw County, Genesee County, and St. Clair County.

In addition, our national reach includes offices in Los Angeles and Southern California; and Miami and Sarasota, Florida.

Contact us today to learn more about what an experienced, reputable Detroit health care fraud attorney can do for you, and how we are ready to help you with the best healthcare fraud defense. 

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