The American healthcare industry generates about $4 trillion in revenue every year. Medicare, Medicaid, and other such programs account for about half this economic activity. Usually, these transactions run through sharp-eyed government auditors. Furthermore, for better or worse, the Affordable Care Act (Obamacare) has thrust the government into the private health insurance industry, at least to an extent. So, government prosecutors are now more aggressive than ever in this area.

Technically, providers or consumers could commit healthcare fraud. But consumer fraud is usually a one-off matter or, at best, a crime of opportunity. Either way, government prosecutors rarely press these matters. That’s especially true if the alleged victim was a private company.

Provider fraud is a different matter. Frequently, these matters involve extensive schemes. The eye-popping financial numbers often related to these matters usually produce publicity for government prosecutors. More on these schemes are below.

At The Law Offices of Vadim A. Glozman, our tenacious Chicago healthcare fraud defense lawyers stand up to government prosecutors. We thoroughly analyze your case and identify all possible defenses. These matters often involve extensive, multi-agency investigations.

Such lengthy probes often feature procedural errors. Additionally, fraud matters are rather difficult to prove in court. So, a substantive defense is usually available as well. No matter what, we do not relent until we obtain the best possible result under the circumstances.

Kinds of Healthcare Fraud

Suspected healthcare fraud is one of the most common matters reported under the False Claims Act and other whistleblower protection laws. The information these whistleblowers provide is always somewhat suspect. More on that below. Some of the most common healthcare fraud schemes include the following.

Kickbacks

Internal gifts, performance bonuses, and other such payments are usually not illegal. However, it is usually illegal for any doctor or medical facility to receive anything of value (e.g. cash, equity, or gifts) from any of the following:

• Another healthcare facility

• Pharmaceutical company

• Doctor

• Medical device manufacturer, or other entity to receive such payments

That’s especially true if the transfer comes with any strings attached, such as referring patients at a certain rate, meeting a certain quota, prescribing a specific medication, using a particular medical device, or making any decision that could be tainted by the offering rather than made based on experience and the patient’s best interests.

Medically Unnecessary Services

The first kind of healthcare fraud in this list is normally objective. Either there was an illegal payment or there wasn’t. MUS (medically unnecessary services) is much more subjective. For example, one person might consider a medical test to be precautionary or “just covering the bases.” Someone else might consider the test redundant at best or unnecessary at worst.

Usually, investigators focus on the relationship between the service and the patient’s diagnosed condition. For example, if Sue has a heart condition, an MRI of her brain is probably unnecessary. However, there could be a relationship between heart problems and hypoxia (lack of oxygen to the brain) in some situations.

Over-Delegation

Doctors are not the only members of a healthcare team, just like a Chicago healthcare fraud defense lawyer is not the only member of a legal team. Other healthcare professionals include Physician Assistants, who are essentially unlicensed doctors, registered nurses, licensed vocational nurses, and patient care technicians.

Doctors cannot charge full price for examinations they delegate to other healthcare professionals. That much is clear. Issues often arise in so-called tag team examinations.

Frequently, non-doctors take the patient’s vital signs, discuss symptoms with patients, and cover other areas. Then, the doctor basically follows up. Medical coding, which is next on this list, is not an exact science. The available codes might not always reflect the split between doctor and non-doctor time.

Upcoding

Basically, medical coders translate treatment notes and other such entries into billable service codes. Since this area requires such attention to detail, errors are extremely common. Some are clearly fraudulent. Some are not.

Clearly fraudulent errors usually include codes for services that were not provided. If there is no supporting treatment note, authorities almost always press fraud charges.

Other coding errors are truly errors. Sometimes, information gets lost in translation. Given the repetitive nature of most healthcare services, if a coder makes a mistake once, s/he will probably repeat that mistake hundreds of times. Government investigators usually see such patterns as evidence of fraud. But that’s not always the case.

Coding errors are, by far, the most commonly charged healthcare fraud infractions in Cook County.

Healthcare Fraud Investigations

A thorough investigation of these healthcare fraud matters is often the key to a successful defense. It’s also usually the key to a successful prosecution. Usually, these pretrial investigations follow one of two paths.

Governmental Investigations

Occasionally, government auditors red flag suspicious charges or activities. If the irregularities are not too serious, auditors usually order an IRS audit or another civil or administrative proceeding. Serious suspected fraud matters go to law enforcement agencies, usually the FBI.

Usually, the FBI or other officers interrogate the parties involved in these transactions. If they do not like the answers they get, they dig deeper. Once they feel they have enough evidence, law enforcement officers refer the matter to the United States Attorney, who usually seeks an indictment.

There are plenty of opportunities for lapses in such pass-the-baton matters. Frequently, runners drop the baton during the relay race. Just as often, they start running too soon or move outside their designated running lanes.

When lawyers talk about things like running outside the lane and dropping the baton, they are usually talking about procedural matters, like search warrant issues and improper Miranda warnings.

Judges cannot issue search warrants unless investigators submit supporting affidavits that clearly show probable cause. Things like evasive witnesses and strings of unusual transactions do not constitute probable cause. Many people are very nervous when they speak to federal investigators, even if they did nothing wrong. Furthermore, asserting one’s Constitutional rights, like the right to an attorney, does not necessarily indicate criminal activity.

A landmark Supreme Court case, Miranda v. Arizona, requires law enforcement officers to inform defendants of their basic Constitutional rights before officers begin custodial interrogation. Frequently, in multi-agency investigations, officers assume that someone else administered the Miranda rights.

Non-Governmental Investigations

More commonly, a whistleblower alerts government officials about suspected healthcare fraud matters. In the court of public opinion, whistleblowers are usually brave individuals who provide reliable information at great personal risk. But a court of law is different. That’s especially true in criminal court. The burden of proof is so high that witness credibility is critical. Some common whistleblower issues include:

• Motive: Not all whistleblowers have pure hearts. Many come forward because they were passed over for promotion, transferred, or otherwise slighted in some way. Others come forward because they did not receive a big enough piece of the healthcare fraud pie. Attorneys often partner with private investigators in these matters. These investigators know how to get the real story behind the whistleblower headlines.

• Access to Information: Whistleblowers are not government agents. So, they may use illegal or shady activities, like hacking into a secure computer or rifling through a co-worker’s papers, to obtain information. However, if the whistleblower used unscrupulous methods to get information, many jurors question their honesty in court.

Chicago healthcare fraud defense lawyers must tread very lightly in this area. In court, attorneys must undermine witness credibility without overtly attacking these individuals.

Resolving Healthcare Fraud Matters

Attorneys resolve a few healthcare fraud matters during the investigation phase. On the other end of the spectrum, a few of these matters go to trial. Out-of-court settlements resolve nearly all criminal matters, including healthcare fraud matters.

Most defendants are aware of government investigations before a grand jury issues subpoenas. Governmental investigations are mostly conducted in the open, and whistleblowers usually go public with the information they provide.

Sometimes, the investigation is so riddled with issues that it cannot stand. A gentle push from a Chicago healthcare fraud defense lawyer often topples it over. Other times, attorneys see the writing on the wall. They know the investigation will end badly. If the defendant waives certain rights so prosecutors can take shortcuts, they have less time invested into the matter and are often willing to make more favorable deals.

At trial, prosecutors must establish every element of the offense beyond a reasonable doubt. That’s the highest standard of proof in the law.

Frequently, reasonable doubt is an inherent part of a fraud matter. As mentioned above, repetitive or large mistakes are often just that. There is no intent to defraud anyone. Furthermore, also as mentioned above, the evidence in fraud prosecutions, especially whistleblower testimony, is not always absolutely compelling.

Healthcare fraud is a nonviolent crime. As a result, there are some pretrial settlement options that do not saddle the defendant with a criminal conviction. Usually, a conviction permanently affects your record. Negative information eventually falls off your credit report. But it normally doesn’t fall off your criminal history report.

Basically, pretrial diversion is a conditional dismissal. If the defendant completes all program requirements within the allotted amount of time, prosecutors usually dismiss the case. These program requirements usually include restitution payment and community service. Pretrial diversion is risk-free. If the defendant doesn’t complete the program for whatever reason, prosecutors simply pick up where they left off.

Deferred disposition is a lot like regular probation. The defendant pleads guilty or no contest and is placed on probation. After the probation ends, if the defendant has had no major noncompliance or other issues, the judge dismisses the case. Deferred disposition is a high-risk and high reward option that’s not a good idea in all cases.

In both situations, the criminal arrest record remains. A Chicago healthcare fraud defense lawyer may be able to expunge or seal the arrest record in some cases. Furthermore, most employers and other private parties only care about conviction records. Legally, even if the arrest record remains, if defendants are asked if they have prior convictions, they may say “no.”

Connect with an Experienced Cook County Healthcare Fraud Attorney

Federal criminal charges are scary, but a number of successful resolutions are available. For a confidential consultation with an experienced Chicago white collar criminal defense lawyer, contact The Law Offices of Vadim A. Glozman by calling 312-726-9015. Virtual, home, and jail visits are available.