by | last updated on January 10, 2016

Healthcare fraud is a serious charge.  Federal agencies are on a search and destroy mission to eliminate waste, fraud and abuse from federally funded healthcare programs such as Medicare and Medicaid.  Just in the last five years health care law and policy have seen many groundbreaking changes. The focus on eliminating Medicare fraud has had unintended consequence for some in the health care fields.  Unfortunately some innocent people are also being caught up in the wide net of overzealous law enforcement

“The best defense is always having a great offense.”

Not everyone accused of healthcare fraud is guilty. The first step in defending someone accused healthcare fraud is to determine what triggered law enforcement to the so-called “fraud” and reverse engineer how the investigation was conducted.  Medicare fraud defense attorneys stay on top of the latest news on how the health care policies and laws are changing, as well as what latest strategies are being used to uncover fraud.  Predicting the course of action to be taken by the government in uncovering fraud is crucial for any defense strategy.

New Focus on Highest Paid Physicians

As early as the 1980s the federal government set up a standard on which all physicians and procedures were to be valued.  The system is called the Relative Value Unit.  Every procedure is given a value according to the amount of time to reach completion, the staff required, supplies necessary and the professional liability expenses.  These values are then added up and a payment can be determined.  Congress decides each year how much will be paid for each these units, RVU.  Insurance providers use RVU to determine payment on procedures as well.

With the implementation of the RVU system, the government is empowered with a way to monitor how many RVUs a medical professional claims each year.  This data provides investigators with the ability to monitor deviations in annual billings.  This “data-mining” has opened up the door to investigations of billing practices of the higher paid physicians, justly or unjustly.
Defense attorneys argue that this focus is too narrow and casts a cloud of suspicion over the most productive physicians without any other evidence.  The focus is being turned to these physicians can be damaging and costly to defend.
The data mining procedures used to determine the highest paid physicians and many other liberal interpretations of laws have caused many medical professionals to be placed under the scrutiny of a fraud investigation.

Anti-Kickback Statute

The Anti-Kickback (AKS) was created to prevent physicians from making self-referrals of designated health services for Medicare and Medicaid patients.  These illegal self-referrals are to entities that they have a financial relationship, such as ownership, investment interest or other compensation relationships.  It is considered a conflict of interest when a physician benefits financially from their referral.

Remuneration in the form or cash or anything comparable for a referral is illegal.  What may seem like a little infraction can place a medical professional under federal scrutiny.  Even just the act of making an offer to compensate for a referral is governed by this statute.  Any form of financial gain whether explicitly or implicitly is illegal.

Healthcare Fraud Defense Team

The best defense against healthcare fraud consists of an experienced litigator and attorney who is well-versed in health care law. The best defense strategy is only going to come from someone who understands health care compliance, who knows what is involved in a fraud investigation and knows how to decipher the evidence.  Medicare laws are complex and ever changing, so having a someone with knowledge in this field is key.

Health care fraud can include a wider range of charges such as kickbacks, illegal payments, submission of false claims for Medicare and Medicaid reimbursement, wire fraud, mail fraud and other false statement charges. Additionally, healthcare fraud cases from time to time include money laundering, obstruction of justice, conspiracy and racketeering.
Errors uncovered in the prosecution and government agencies are key to a great defense strategy.  Cases with errors can lead to dropped or amendments to the indictments.  Expert trial lawyers know how to convince jurors that there wasn’t criminal intent.

Before even taking on the case, a defense lawyer needs to get a lay of the land.  They will take the time to assess the allegations and conduct their own investigation.  It is crucial to have full access to review internal records, correspondence, reports, interview employees and review financial data.  An independent health care audit can be conducted by the defense team to uncover any weaknesses or questionable activity.

Some cases involve bringing in medical billing experts that will review the facts of the case and offer testimony that will work on behalf of the accused. Cases where medical necessity is in question, the defense team will need to provide evidence to support medical decisions made by the medical staff.  This may involve bringing in any party related to the case, such as relatives of the patient in question, medical personnel or physicians and the patient. Using these resources can be an excellent way to refute these allegations.

Attorney Robert Malove has been in private practice since 1996. Robert is the co-author of White Collar Crime: Healthcare Fraud (WEST 2013 Ed.) and is an expert criminal defense attorney with extensive experience in healthcare fraud defense. He is Board Certified by the Florida Bar as an expert in criminal trial law, AV rated by Martindale-Hubble(R) as a pre-eminent lawyer, listed in SuperLawyers, and  has a 10.0 AVVO rating.  Past clients include the Florida Academy of Pain Medicine, Florida Academy of Physician Assistants, American Academy of Pain Management and Florida Society of Neurology.