Wednesday, May 9, 2018

Medicare and Medicaid Exclusion Appeals and Reinstatement Applications

You may be excluded from the Medicare and Medicaid programs for any number of reasons.  A criminal conviction is one of the most common reasons healthcare professionals find themselves on the exclusion lists.  But you may also find yourself excluded from the Medicare and Medicaid programs based on a professional discipline complaint or a Medicare or Medicaid audit.

You may be placed on the exclusion list by the Office of Inspector General (OIG) at the U.S. Department of Health and Human Services.  Or you may be excluded from a Medicaid program by the New York State Office of Medicaid Inspector General (OMIG).  Either way, being on the excluded list can destroy your career.  You will not be able to bill any federal healthcare programs for as long as you are the list, and you will not be able to work for any healthcare providers that bill Medicare or Medicaid.

Exclusion from Medicare or Medicaid often results in the termination of contracts with health insurers, the termination of contracts with other health care businesses or individuals, and the termination of hospital clinical privileges.

The exclusions may cover different time periods.  For example, OMIG may exclude you now for a period of five years.  Then, two years from now, OIG may exclude you for the same reason for another five years.  As a result, your “five-year” exclusion could actually last seven or more years.  Exclusion by the OIG will also place you on the federal General Services Administration (GSA) Debarment List, which means you will not be able to work or contract with anyone who contracts with the government or receives government funds.

How to Respond to an Exclusion from Medicare or Medicaid

If you receive a notice that OIG or OMIG may exclude you from Medicare or Medicaid, you must act quickly.  Your deadline to respond and appeal is very short – you have as little as 30 days to prepare your evidence and present it – and that deadline is strictly enforced.

If you are already excluded, you may apply for reinstatement.  You must be able to show that you have complied with the exclusion and that you have not engaged in any further conduct that would justify exclusion.  If you were required to pay a fine or restitution, you must pay the money or work out a payment plan before applying for reinstatement.  It is also helpful to support your reinstatement application with letters and testimonials from patients, colleagues, and community leaders to show that you have been rehabilitated and are making a positive contribution to the community.

You may apply for reinstatement only once each year, so you must make sure your reinstatement application is thorough and professional.  Retaining an experienced Medicare and Medicare fraud lawyer can often make the difference between success and failure.

John Howley Esq. has more than 27 years of experience representing professionals in complex healthcare matters including exclusion appeal and reinstatement applications.  Call him directly at (212) 601-2728 to schedule a consultation.

Wednesday, May 2, 2018

Medicaid Fraud Control Unit Investigations in New York

The Medicaid Fraud Control Unit (MFCU) is the largest unit in the New York Attorney General’s Criminal Division.  It is charged with investigating and prosecuting Medicaid fraud by doctors, dentists, nurses, pharmacists, hospitals, nursing homes, durable medical equipment suppliers, and other healthcare providers.

The MFCU targets providers who submit false claims to Medicaid.  False claims include billing for services that were never provided, “upcoding” or overbilling for services that were provided, “unbundling” services to obtain higher reimbursements, billing for an unlicensed or excluded provider under a different provider’s name, paying or receiving kickbacks in return for patient referrals, and providing substandard care, drugs or medical equipment to patients.  The MFCU also investigates and prosecutes abuse and neglect in nursing homes and other healthcare facilities.

With almost 300 professional staff, the New York Medicaid Fraud Control Unit is the largest in the nation.  Its prosecutors, investigators, and forensic accountants and auditors are highly experienced and aggressive.  Every year, they obtain criminal convictions with long prison sentences and recover more than $350 million from healthcare providers accused of Medicaid fraud.

MFCU investigations often begin slowly and build over a period of months and even years.  By the time you are contacted, the MFCU investigators have already uncovered evidence suggesting that you are guilty of Medicaid fraud.  Anything you say to them can and will be used against you.  Keep in mind that the investigators are not there to help you.  They are conducting an investigation to build a criminal case against you.

The investigators may demand that you turn over documents and files.  Some of these demands may be legitimate, but the investigators may also demand records that you are not required to turn over.  For example, you are not required to turn over records that do not relate to Medicaid claims.  Turning over more documents than you are required to disclose can greatly expand the investigation and the potential exposure. 

Criminal charges for Medicaid fraud can be catastrophic.  In addition to facing a long prison sentence and a permanent criminal record, you could be ordered to pay back hundreds of thousands of dollars or more in restitution.  You could also lose your professional license and be excluded from the Medicare and Medicaid programs, effectively ending your career.

If you are contacted by the Medicaid Fraud Control Unit, you should retain an experienced Medicaid fraud defense lawyer immediately.  Your best chance of avoiding criminal charges is to get an experienced lawyer involved before you speak to investigators and before any charges are filed against you.

John Howley, Esq. has more than 27 years of experience defending clients in criminal investigations and at trial, including physicians, pharmaceutical companies, pharmacists, dentists, nurses, physical therapists, durable medical equipment suppliers, and other healthcare providers.  To schedule a consultation, contact him directly at 212-601-2728.

Monday, March 5, 2018

Avoiding Criminal Charges in Medicaid Fraud Investigations

A Medicaid fraud investigation has potentially devastating consequences, especially if it leads to criminal charges.  How you respond to investigators and prosecutors can mean the difference between an inconvenience and a career-ending prison sentence.

The first thing you need to understand is that Medicaid fraud investigators and prosecutors are not on your side.  They contacted you because they already have evidence suggesting that Medicaid fraud has occurred.  They believe that you either have information helpful to their investigation, or that you were directly involved.  Their primary objective now is to determine whether you knowingly and intentionally participated in the fraud.

Common Types of Medicaid Fraud

Medicaid fraud comes in many different forms.  The most common types of Medicaid fraud that lead to criminal charges are:

  • False or fraudulent billing
  • Billing for more expensive services than actually provided (up-coding)
  • Billing for services that were never provided
  • Billing separately for procedures that should be billed as a bundle
  • Prescribing narcotics without documented medical necessity
  • Selling prescriptions paid for by Medicaid
  • Failing to report all your income on applications for Medicaid benefits

Criminal Intent vs. Honest Mistakes

Why do some Medicaid fraud investigations result in serious criminal charges while others are resolved with a monetary settlement?  The answer is usually proof of intent.  In order to prove a criminal case of Medicaid fraud, a prosecutor must prove that you intended to defraud the government.

There are many ways to prove an intent to defraud Medicaid.  A pattern of false statements or claims will often be used to show that they were intentional and not the result of a mistake.  Inconsistent statements can also be used to show intent.  For example, if you make statements to investigators that are inconsistent with written records, statements by others, or your own prior statements, a prosecutor will use that inconsistency to argue that you are not telling the truth.

This is why it is critical to understand all the facts and review all the records before you decide whether or not to speak with investigators.

How an Experienced Medicaid Fraud Lawyer Can Help

You should always engage an experienced Medicaid fraud defense lawyer before you speak with fraud investigators.  Your lawyer can speak with investigators and discuss their concerns before you have to decide whether to speak with them.  He can also review all of your records to identify any problem areas and help you prepare your defense.

Once you and your lawyer understand the issues and the evidence, you can develop a strategy for responding to investigators or prosecutors.  It sometimes makes sense to exercise your right to remain silent.  Other times, your lawyer may recommend cooperating, but only under a proffer agreement that prohibits prosecutors from using your statements in court as long as you tell the truth.

Your lawyer will also conduct a legal analysis.  Does the prosecutor have enough evidence to bring charges against you?  Are there gaps in the evidence that will prevent the prosecutor from proving his case?  Is there an opportunity to avoid criminal charges by negotiating a financial settlement?

These questions cannot be answered in a vacuum.  You and your lawyer must do your own investigation, gather all the facts, and develop a strategy before speaking with investigators or prosecutors.

To schedule a consultation with an experienced Medicaid fraud defense attorney, call John Howley, Esq. at (212) 601-2728.

You can also click here to download our free e-Book, “How to Survive a Medicaid Fraud Investigation.”