Table of Contents
National Healthcare Fraud Defense Lawyers in Texas
Heath Hyde stands out with experience in federal healthcare fraud defense, a primary focus on healthcare providers, and a reputation for zealous, aggressive and effective criminal law representation.
The practice of law, like medicine, is a tremendously broad field, and certain areas should not be left to a “generalist.” This is true of healthcare fraud.
Heath Hyde’s nationwide healthcare fraud defense lawyers have over 50 years of combined expertise defending healthcare practitioners. Heath Hyde’s track record includes high-profile trial acquittals and dismissals in healthcare fraud cases, as well as sophisticated knowledge in the field of healthcare compliance.
Heath Hyde and his associates devote the majority of their time to entirely focus on healthcare fraud, compliance, and government healthcare investigations, teaching, publishing, and litigating in order to offer their clients the most advanced knowledge required to take on the federal government.
If you require expert legal representation because you are soon to be charged with healthcare fraud or fear you are under investigation for medical fraud, Heath Hyde has a committed team of Medicare fraud attorneys, Medicaid fraud attorneys, and healthcare-based criminal defense attorneys at Heath Hyde Law who have a track record of acquittals and dismissals on behalf of a variety of healthcare practitioners and major healthcare corporations.
Learn more about Heath Hyde’s philosophy and approach to defending people accused of healthcare fraud by scheduling a free confidential case evaluation at 903.439.0000 or fill out our online contact form.
Why Should You Hire Heath Hyde to Represent You in a Healthcare Fraud Case?
- Commitment: We aren’t generalists. We are a team of experts committed completely to the fight against healthcare fraud.
- Results: Unlike most organizations, we have a track record of successfully defending government healthcare fraud cases.
- Strategy: We don’t wait for cases to develop and come to us. We are proactive and work with you to design a plan to resolve your federal healthcare fraud issue, aggressively research it, and prepare to take on the federal authorities from the beginning of our representation.
- Education: The majority of our attorneys hold advanced degrees in healthcare law and are ex-healthcare fraud prosecutors. We have a full-time licensed healthcare fraud investigator on staff, a medical billing consultant, as well as a network of medical professionals, statisticians, healthcare fraud investigators and AI-enhanced investigative techniques that are ready to help you.
What is the definition of healthcare fraud?
Healthcare fraud is a broad phrase that encompasses any effort to defraud a healthcare insurance program.
When a claim for reimbursement is made for services that were not medically necessary, were not performed, were overbilled, or were not permitted, the person or entity who caused the bill to be submitted might be charged with fraud.
A major misstatement devised and intended to result in financial gain is commonly described as fraud. The misrepresentation in the healthcare context is typically a claim presented to an insurance company such as Medicare, Medicaid, Tricare, Blue Cross Blue Shield, and so on.
In recent years, federal prosecutors have focused their efforts on healthcare fraud, including Medicare fraud, Medicaid fraud, and TriCare fraud. Defending claims of healthcare fraud necessitates an attorney with extensive experience in this challenging area of law.
The laws governing healthcare fraud and safe harbor provisions are complicated and constantly evolving. Because of the government’s concentration on prosecuting healthcare fraud cases, it has been pushing the boundaries in charging decisions, resulting in weaker charges with less evidence that can be readily defended by a lawyer with medical and healthcare experience.
Unfortunately for people accused of healthcare fraud, this has resulted in more cases going to trial, which may be costly. A professional Medicare fraud lawyer like Heath Hyde, with a laser-like focus on the case, on the other hand, can substantially reduce the amount of time and money required to defend healthcare fraud charges.
Some examples of healthcare fraud are as follows:
- Billing for services that were not provided
- Noncompliance with the Anti-Kickback Statute (paying or receiving referrals)
- Upcoding involves charging for a higher-level service than was previously provided (99213-99214)
- Charging several codes to improve reimbursement through unbundling
- Theft from pharmacies (billing for medication but not filling the medication)
- Health-care fraud in the home
- Theft of dental insurance
- Relationships with laboratories that aren’t up to snuff
- Billing for Medicare or Medicaid-exempt providers
- Incorrect coding
- Overuse, such as administering too many back injections
- Overprescribing opiates is a form of prescription fraud.
What Laws Do Federal Prosecutors Use in Healthcare Fraud Cases?
A healthcare fraud indictment, which is the document that accuses healthcare fraud, usually includes a charge of healthcare fraud conspiracy as well as multiple individual healthcare fraud executions. In addition to the forfeiture accusation, the indictment might include a money laundering charge.
Because the federal conspiracy requirements are so permissive, the government only needs to prove an agreement to commit healthcare fraud and an act in support of the scheme to prosecute healthcare fraud conspiracy.
The government also tries to collect a large amount of assets from people accused of healthcare fraud, mostly to prevent them from utilizing allegedly illegal proceeds to defend themselves against the charges. Often, this measure results in the accused having their personal resources frozen to prevent them from adequately defending themselves against the governments allegations.
Healthcare fraud is being prosecuted and charged in more inventive ways by federal prosecutors. Heath Hyde and his connected lawyers have dealt with the Department of Justice (DOJ), the Department of Health and Human Services (HHS), and federal prosecutors before. However, Heath Hyde is familiar with their strategy and how to counter it; in fact, some of our healthcare fraud defense lawyers are former federal prosecutors, so we understand how the government thinks about healthcare fraud cases.
The following are some of the federal statutes that are typically charged in a healthcare fraud indictment.
- Healthcare Fraud, 18 U.S.C. 1347
- 18 U.S.C. 1349 – Conspiracy to Commit Healthcare Fraud
- Wire Fraud, 18 U.S.C. 1343
- Racketeering, 18 U.S.C. 1961
- Money Laundering Act of 1956, 18 U.S.C.
- Drug Trafficking – 21 U.S.C. 841(a)
- Anti-Kickback Statute, 42 U.S.C. 1320a-7b
- 18 U.S.C. 371 — Terrorism
Each of these accusations has its own set of “elements” that the prosecutors must establish beyond a reasonable doubt.
For instance, the elements of healthcare fraud (whether Medicare fraud, Medicaid fraud, or TriCare fraud) are that a defendant:
(1) knowingly, and
(3) devised a scheme or artifice to defraud a healthcare program, and
(4) executed the scheme.
A jury would have to find the government guilty of each and every ingredient beyond a reasonable doubt.
Defending a federal healthcare fraud case requires your defense counsel to convince the government that they will not be able to prove the elements to a jury — thereby resulting in a dismissal or by presenting a compelling case to the jury that prosecutors cannot prove the elements of the offense beyond a reasonable doubt.
These laws are far from straightforward. Countless decisions have been resolved on the interpretation and application of each of these statutes.
Healthcare fraud defense is similar to tax law in that it is so specialized that only those who operate in this sector on a regular basis are qualified to litigate. Many clients who consult Heath Hyde and our connected healthcare fraud defense lawyers for a second opinion had been told by their inexperienced attorney — who may be just a general criminal law practitioner — that they should accept a plea because they are guilty, when they are, in fact, not guilty at all. This is because many mistakenly believe that simple failure to conform to Medicare and Medicaid regulations constitutes fraud. No, it doesn’t.
What are the “Elements” of Healthcare Fraud?
In order to be convicted of healthcare fraud, the government must prove that the defendant:
- devised a scheme or artifice
- to defraud a healthcare benefit program
- and that the scheme was executed
The government must prove this beyond a reasonable doubt. 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 by themselves to satisfy this requirement.
Despite these facts, the government and the DOJ Healthcare Fraud Strikeforce continue to charge healthcare providers with healthcare fraud charges for differences of opinion related to the practice of medicine or pharmacy, such as:
- Exceeding opioid prescribing guidelines
- Exceeding urinalysis testing guidelines
- Exceeding back injection guidelines
- Improper entries into medical records
- Billing improper CPT Codes (99211-5)
Who Investigates Healthcare Fraud Cases?
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
Typical healthcare fraud is initially investigated using data. CMS and HHS review statistical data generated from Medicare and Medicaid bills to look for outliers. If you believe your practice is an outlier, contact Heath Hyde and our connected Medicare fraud defense attorneys and Medicaid fraud defense lawyers to begin your representation process immediately. Quick action and prompt creation of 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 Strikeforce will prepare an indictment and take a case to the grand jury. If a grand jury returns an indictment, the subject of that indictment will be charged with healthcare fraud and be required to defend that indictment in court.
How Do I Know that I am Under Investigation for Healthcare Fraud?
A healthcare fraud investigation starts a variety of ways. If your counsel has his or her ear to the ground, it’s not difficult to determine whether you are facing a healthcare fraud investigation.
Here are some of the signs that you may be under investigation for healthcare fraud:
- Search Warrant: If a search warrant is executed against you or your practice, you should contact our experienced healthcare fraud defense lawyers immediately. We can provide you immediate advice to help protect your rights during this difficult situation. We can also assist your staff to alleviate the confusion and fear that comes with the process.
- Grand Jury Witness Letter: If you receive a letter indicating that you are a “witness” in a grand jury, for which the subject matter of your potential testimony deals with your ownership or employment with a practice or healthcare business, you need counsel immediately. Witnesses, without adequate representation, often turn into subjects and targets.
- Grand Jury Subject Letter: If you receive a letter from the DOJ or a federal prosecutor alleging that you are the “subject” of a federal healthcare fraud investigation, you need counsel immediately. This means that federal prosecutors are seeking an indictment against you or your healthcare entity but have not yet received enough evidence to convene a grand jury. Without adequate representation, you could easily turn into a “target” of a federal investigation.
- Grand Jury Target Letter: If you receive a grand jury target letter, this is a sure-fire sign that you are the target of a federal investigation. The definition of the “target” of a federal investigation is that the government believes sufficient evidence exists to convene a grand jury and seek an indictment.
- Grand Jury Subpoena: The government has tools such as subpoenas to get information from healthcare providers and entities in order to investigate healthcare fraud. One is a grand jury subpoena. This allows the government to compel production of records and testimony before a grand jury to support their criminal investigation. Everyone who is subpoenaed for documents or testimony should consult with a knowledgeable healthcare fraud defense lawyer. Often, we are able to defeat the government subpoena or alleviate the need for testimony.
- Civil Investigative Demand: A civil investigative demand is a civil tool used by civil prosecutors to collect records in furtherance of a violation of the False Claims Act. However, given the similarities in the conduct required to prove a violation of the False Claims Act and the healthcare fraud statutes, defendants facing false claims act cases should prepare for the potential for a parallel criminal investigation.
- Signs of Active Investigation: Clients often learn that they are under healthcare fraud investigation after they learn that patients, employees, and other potential witnesses are being investigated or they see signs of surveillance.
- Increased Audits: Many clients will face an increase of record requests and audits by Medicare, Medicaid, and commercial insurance carriers. This is a sign that insurance companies may suspect fraud, and their compliance departments routinely report these allegations to federal and state law enforcement.
- Medicare Suspension: Medicare has the ability to suspend a provider or entity based on “credible or suspected allegations of fraud.” If you receive a Medicare suspension letter alleging fraud, it is important to contact an experienced healthcare fraud defense lawyer who can also assist you with regaining compliance.
What are the Stages of a Healthcare Fraud Investigation and Prosecution?
While there is not a rigid and formal structure for a healthcare fraud investigation and each investigation takes a different shape, there are some predictable aspects of a healthcare fraud investigation.
Step 1: Identification
Investigators receive a tip from a whistleblower, insurance company, or results of a Medicare or Medicaid audit that inform them that healthcare fraud may have been committed. Often, the HHS learns of potentially fraudulent activity by using its own data analytics software contracted by a company called Palantir to determine if an entity has committed healthcare fraud.
Healthcare fraud investigators will review data and look for aberrant behavior in the number or type of codes billed relative to the patient populations, location, or taxonomy of the provider, to determine whether fraud has been committed.
Step 2: Preliminary Investigation
Investigators will look at data readily available to look for evidence of fraud. This may include public information about the practice or target; prior audits provided by Medicare and Medicaid; and Medicare billing data (that is publicly available).
Investigators will analyze this data against open source data to determine if there is evidence of fraud. For example, investigators may cross-reference Medicare billing data with death records to determine if the practice has billed for treatment to deceased patients (a common type of fraud).
Step 3: Questioning related parties
Once the government has sufficient data to believe healthcare fraud has been committed, investigators begin conducting interviews with patients, former staff members, and other providers in the local area. They will also surveil the target defendants to determine their patterns and the probable location of evidence.
Typically, investigators pull patients by using Prescription Drug Monitoring Programs (PDMP) databases and cross-reference it with criminal history in order to question those patients with prior law enforcement experience.
Step 4: Search and Seizure
When the investigation is complete, the agents will send the case to a prosecutor for a review and request that the prosecutor obtain permission from a federal judge to search your home. The lead agent will draft out an affidavit outlining the investigation and requesting a search warrant for the practice and often the home of anyone alleged to be engaged in fraud.
Federal agents can get a warrant when there is probable cause (a very low standard) that a particular piece of evidence or contraband is in a particular place. This includes all electronic evidence that may have been used to perpetrate the alleged crime.
Agents conducting a healthcare fraud search warrant generally arrive during early hours of the morning and typically like to raid a practice as patients are showing up in order to interview patients. They will swarm the facility with vehicles from a number of different agencies and begin searching the practice or home and removing items they deem “evidence.”
Providers, patients, and employees who are on site do not need to remain; typically, defense counsel advise that everyone other than the records custodian leave the location. Agents cannot force people to be interrogated, and all employees and patients retain their Fifth Amendment right to remain silent.
(Note: Occasionally, where there is enough evidence to indict before executing a search warrant, an indictment will be unsealed simultaneously with the execution of a search warrant.)
If you are the subject of a search warrant by federal and state authorities, you should contact CLG today. We can give you advice on the spot that will minimize the damage of a search warrant.
Step 5: Prosecution Referral
Prosecutors and investigators will then review evidence and determine if the case should be prosecuted and if a grand jury can be convened. Prosecutors will review evidence to determine how strong the case is and if any other leads must be followed before indictment.
If the U.S. Attorney’s Office believes that a grand jury should be convened in order to indict for healthcare fraud, the case will be presented at the next grand jury.
Step 6: Grand Jury Proceedings
Grand juries are composed of 16 to 23 members. Grand juries are selected randomly from the population of a U.S. District. During a grand jury proceeding, a prosecutor will present evidence against the “target” of a grand jury (either a person and/or corporation). The grand jury will hear that evidence and vote either to indict or to return a “no bill.”
If at least 12 members vote to indict, then the case will be indicted and is then in the jurisdiction of the U.S. District Court for proceedings before federal judge. If fewer than 12 vote to indict, the case will be returned for investigation.
There is no limit to the number of times a prosecutor can go before a grand jury. Grand jury proceedings are generally secret and are only known to the prosecutor, the witness, and the members of the grand jury. Witnesses whose testimony is sought before a grand jury receive a document called a grand jury subpoena.
If you receive a grand jury subpoena or are the target of a grand jury, contact Heath Hyde today.
Step 7: Arraignment
If the grand jury indicts, the defendants on the indictment must be arraigned. This is the first appearance before a federal judge (usually a magistrate).
During arraignment, the judge ensures that two things are accomplished: (1) the defendant understands the charges, and (2) the defendant enters a plea.
All defendants at arraignment should enter a plea of not guilty at arraignment. Entering a plea of not guilty doesn’t mean you are swearing under oath that you didn’t commit the crime; rather, it’s the process of requesting that the judge set the case for trial so that the prosecution has to go through the burden of proving the case beyond a reasonable doubt.
In addition to the arraignment, a bond hearing will be held that same day. During this hearing, the court will determine if the defendant is released on bond. Most U.S. citizens who are alleged to have committed nonviolent offenses will received bond. However, there are quite a few exceptions to this general rule, and your attorney must be thoroughly prepared for a “detention hearing.”
You are at risk for not being released if:
• You are indicted for a drug offense, as these carry a presumption of detention.
• You have significant foreign contacts.
• You have overseas assets.
• You have a criminal history.
• You have attempted to flee or missed a court appearance.
• Your offense is coupled with one of violence.
• There is evidence that you may tamper with evidence or threaten witnesses.
If any of the above factors apply to you, it is important that your counsel prepare an aggressive defense to the government’s detention request. Your attorney must be prepared to rebut the government’s evidence by presenting witnesses and documents in support of non-detention, designed to show that the defendant is not a danger to the community and not a risk of flight.
Often at arraignment, the government will attempt to restrict our client’s ability to prescribe controlled substances and to prevent our client from billing Medicare or Medicaid. We fight this vigorously because we understand that the ability to practice is vital to surviving through the long battle that lays ahead for most accused practitioners.
We typically point out to the court that the provider has patients who rely on him/her for treatment, and a bond condition that impacts those patients actually causes harm to the community. Instead, we offer the government the ability to monitor prescribing and billing (which it already has the power to do).
Step 8 Pre-Trial Proceedings
During the next six to 18 months (generally), the case will proceed to trial.
When a healthcare professional is indicted for healthcare fraud, the Government has likely completed a thorough investigation.
Dedicated Medicaid fraud lawyers, Medicare fraud attorneys, and general healthcare fraud lawyers know that 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.
We defend 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, it is not evidence of a scheme.
If a trial is necessary, it is imperative that expert testimony is presented to show that the claims were not fraudulent. It is also imperative that certain motions and objections are made that restrict the government’s evidence in order to improve your chances of a successful outcome.
What Are the Penalties for Healthcare Fraud?
The penalties for healthcare fraud can be criminal, civil, and administrative. General criminal defense attorneys are only aware of the criminal penalties and may miss strategies that limit or eliminate the civil and administrative penalties. A plea of guilty to a felony charge of healthcare fraud or Medicare fraud should not be based solely on the potential jail time.
The potential consequences of a conviction of healthcare fraud are:
• Up to 10 years in prison
• Mandatory exclusion from billing Medicare and Medicaid for between five years to life
• Loss of professional license (medical license, pharmacy license, nursing license)
• Forfeiture of all assets related to the alleged offense
• Fines of up to $250,000 per offense
• Job loss
• Loss of board certification status
How Are Healthcare Fraud Sentences Determined?
Federal sentences are created using the Federal Sentencing Guidelines
If someone is convicted of healthcare fraud, the sentence is almost exclusively determined by the fraud loss amount to the entity billed, generally the value of claims billed. As a result of the Affordable Care Act, the number of claims billed to a healthcare program is considered prima facie evidence of the loss amount.
In the event of a conviction and in order to achieve a lower sentence, it is imperative that defense counsel challenge the notion that the number of claims billed is the amount of the loss to the government. Every healthcare provider knows that Medicare, Medicaid, and private insurance companies do not actually pay the amount billed; usually, it is some lesser amount.
Also, the best healthcare fraud defense lawyer will know other strategies useful for determining a lower loss amount, such as claim sampling and extrapolation. 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 the poor methodology.
24/7 Free Consultation
Why Hire Heath Hyde?
Named 100 Top Trial Lawyers in the United States & “Rising Star” in Dallas’s D Magazine
Tried the largest healthcare fraud case to go to trial in the United States
Handled federal cases nationwide & represented clients in 53 different counties in Texas
Connected with a team of specialists that can handle any criminal issue throughout the country
Get Started on Your Case Today
Heath represents clients in all stages of federal investigations, from initial notice to trial and appeal. Most clients approach Heath in times of crisis, typically after being notified of a criminal investigation or an indictment. Don’t hesitate to get in touch with the Experienced Federal Criminal Defense attorney at Heath Hyde for a free consultation 24/7.