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Federal Health Care Fraud Cases: A Few Observations

I was just reading a press release from the U.S. Attorney for the Northern District of Georgia, based here in Atlanta a few blocks from my office.  The prosecutors touted their recent indictment of a physician’s assistant for supposed health care fraud and other crimes.  Reading this made me want to put down a few thoughts about such cases, which we have handled multiple times over the recent years.

Anyone reading our website knows that there are “federal fraud” cases, and then there are sub-species of federal fraud.  Health Care Fraud is an especially dangerous and pernicious charge to defend against.  For starters, the wickedly complex Federal Sentencing Guidelines  make the potential sentences for Health Care Fraud even longer than what is suggested for regular run-of-the -mill fraud.  Certain “specific offense characteristics” bump up the scoring mechanism when prosecutors include an allegation that an accused person’s supposedly fraudulent conduct violated one of the Health Care Fraud laws that Congress has enacted over the years.

The accused person and his or her lawyer also need to be keenly aware that there are sub-sets of Health Care Fraud.  For example, there is an illegal “kickback”, which the Government defines as: “the knowing and willful payment of ‘remuneration’ to induce or reward patient referrals or the generation of business involving any item or service payable by the Federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients)”.  Anti-kickback cases are weirdly complicated with many people wondering why the Feds are interested in the normal back and forth payments that arise in many sectors of our economy.

Health Care Fraud cases are also  complicated by the fact that many accused individuals are licensed professionals such as medical doctors, nurses, physicians assistants and the like.  Regulatory bodies often work in tandem with federal prosecutors.  The federal criminal defense attorney handling such a matter also needs to be keenly aware of what might be happening in these regulatory proceedings which can result in the loss of the license for the health care professional who is under indictment or investigation.   On rare occasions a wily criminal defense lawyer can use these parallel proceedings to aid in the defense of the federal case, but that is a topic for another post down the road.

Finally, there is the fact that Health Care Fraud cases arise out of, well, Health Care!  Lawyers are not doctors, nurses or medical professionals.  We often need a quick tutorial about the medical issues that our clients are addressing in order to help the accused person defend against allegations that they violated federal criminal laws.  This means that the lawyer needs to be a quick study, needs to ask lots of questions, and needs to fully understand what his or her client was trying to accomplish when the Feds claim that fraud was afoot.

Federal Health Care fraud cases are complicated.  There are more and more of these cases being brought.  Anyone reading this should consult with a specialist if they, their friends or their family member are facing one of these cases.

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