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.
If you’re a Miami-based or Florida-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, you need to act immediately.
Because Miami has one of the highest rates of federal healthcare fraud indictments in the country — so much so that, since 2007, the U.S. Department of Justice (“DOJ”) has operated a “strike force” to prosecute healthcare fraud in the Miami-Dade County region.
For 2021, South Florida ranked as No. 1 in the nation for health care fraud. As George L. Piro, Special Agent in Charge for the Miami division of the Federal Bureau of Investigation (FBI), puts it:
“South Florida is ground zero for health care fraud.”
And although Miami is considered a hotbed for healthcare fraud, healthcare providers from all corners of Florida — from Tallahassee to Gainesville, and from Cape Coral to Pensacola — 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.
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 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 the more common types of healthcare fraud:
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.
In Miami, it is very common for investigators from different federal agencies to work together on a case. Most health care fraud cases are investigated by special agents from the FBI and the HHS-OIG.
Nationally, the DOJ has placed the full power of the federal government’s resources into the effort to prosecute healthcare fraud. In 2007, Miami became the first location in the country where the DOJ implemented the Strike Force model to focus on health care fraud. Today, Strike Force teams operate in 12 cities, such as Philadelphia, Chicago, Dallas, and New Orleans.
Each Strike Force consists of experienced federal agents and investigators from different federal agencies who work together in interagency teams. These highly skilled professionals work side-by-side with prosecutors to plan strategies and conduct investigations. The Strike Force Teams use advanced data analysis techniques to identify unusual billing levels in healthcare fraud “hot spots” (cities with high levels of billing fraud).
By coordinating multiagency intelligence resources, the teams are able to swiftly suspend Medicare reimbursements and freeze assets.
In 2021, the Miami Strike Force Team took credit for:
In addition, cases brought down by the the Department of Justice for 2021 include:
A Tampa-based pain management specialist accused of taking kickback payments in return for medically unnecessary Fentanyl spray prescriptions. (As well, in 2020, a Sarasota pain management practice owner faced 16 counts under similar circumstances, when he conspired with a Tampa-based liquid Fentanyl sales rep.)
The consequences of a healthcare fraud conviction are severe, which is why a plea to accept a felony charge for healthcare fraud, Medicare fraud, or Medicaid fraud should not be based solely on the potential jail time.
The potential consequences of a conviction of healthcare fraud, which our Florida healthcare lawyers regularly defend, are:
A woman from the Port St. Lucie area sentenced to four years in prison and ordered to pay $1.1 million in restitution for wire fraud and embezzling funds from healthcare employers.
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 Miami criminal defense attorney who specializes in healthcare fraud defense first.
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 Miami 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 Miami 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 Miami 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.
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 Miami healthcare fraud attorney who is familiar with the prosecutor. We may be able to prevent arrest on the indictment and request that you voluntarily “walk in” for initial appearance. This way, you will avoid the embarrassment that an arrest from your home or work would 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:
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.
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.
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 Florida 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 Jacksonville 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 Florida 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 Florida fraud defense attorney to defend your Medicare or Medicaid fraud case.
Because our Florida healthcare lawyers have been battling federal Medicare fraud strike forces for several years — so our healthcare clients get the kind of Medicare fraud defense no one else can offer.
Our Miami and Florida Medicaid fraud defense attorneys 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 Miami healthcare fraud defense attorneys have a reputation in winning many cases by dismissal or not-guilty verdicts at trial.
Our team of experienced national healthcare criminal defense attorneys — as well as our white collar criminal defense and internal investigations specialists — includes two former federal prosecutors. With such valuable insight, we know exactly what the government looks for when it comes to Medicaid fraud and Medicare fraud in Florida.
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 attorneys in Miami, South Florida, and Florida statewide is our focus on preventing an arrest and charges from ever being filed.
A Miami criminal defense lawyer from Chapman Law Group will actively investigate allegations and start building a defense for each client before the case ever goes to court.
Many times, our health care fraud attorneys 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, our Medicare fraud lawyers can settle a case through a civil agreement and payment of a fine.
Even in situations where criminal charges are filed, our medical fraud attorneys 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 you can 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.
Our clients include practitioners in cities, counties, and communities all across Florida. Our Florida health care law firm offices are in Miami and Sarasota, and we have a national reach that includes offices in Los Angeles/Southern California; and Detroit, Michigan.
You deserve the best criminal defense attorney in Miami and Florida for health care issues to handle your case. Contact us today to learn more about what an experienced, reputable Miami 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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