We have seen cases get filed criminally where the case started out as an audit and recovery for overpayment. The business or individual decided to aggressively fight the audit even though there were issues in billing for services not provided or that were upcoded or had other problems. Once the government works on the audit, refers to experts and is in hearing -- there is then the possibility that the case will be referred criminally. Think big picture during audits.
Hire An Experienced Attorney Who Understands Medicare And Medi-Cal.
Hiring an attorney who understands Medicare and Medi-Cal as well as the rules governing compliance is critical. For someone outside this area, payment of commissions can seem legal where in Medicare it can be a potential kickback. We have seen lawyers review files and miss the issues of medical necessity, marketing and specific billing requirements.
Criminal Cases Often Come After Civil Cases Or Audits
The government has often obtained discovery before a criminal case has commenced through audits or civil litigation. Review all these documents and assess criminal liability from the outset. It may make sense to try to resolve the case pre-indictment but this takes an assessment of all facts and circumstances.
If The Regulations And Billing Issues Are Complex, Use That To Your Advantage
We have had cases where the laws and regulations changed or were so complex that the billing errors made were as a result of the changes and compexity -- not due to intent to defraud. This is where understanding the rules and regulations can help your case a great deal.
For example, we had a case where there was an issue of billing Presumptive Eligibility (PE) Program in Medi-Cal when Medi-Cal had just gone to an HMO program. Our client was an Ob-Gyn who saw pregnant patients and billed them to the PE Program because it was the physician's understanding that this was not covered by the HMO. The programs were confusing, there was no attempt to hide services or billing. However, there was a criminal investigation and it took a great deal of work to show the government why there was no crime. The government still filed a criminal case, but the case was dismissed against the physician due to our knowledge of the rules and programs.
If You Are Interviewed By The Government, Demand Limited Immunity Agreement And Hire A Lawyer
Many of the cases we get involved in are after the witness has been interviewed by the government numerous times. It is critical to not agree to interviews unless you have assessed the case with an attorney and obtained at the minimum a limited waiver of immunity. If you and your lawyer know that the government will file a criminal case no matter what you state in the interview, an interview is probably not a good idea.
Medicare and Medi-Cal fraud cases are often the battle of the experts. Since the prosecution will call expert witnesses, the defense must determine whether they should hire experts, in Medicare billing or the specialty at issues (whether medicine or some other service).
Every Case Is Different
Years ago, government prosecutors only filed cases that were for ghost billing -- billing for services not provided. Now there are criminal filings for many cases where services were provided but the services are deemed to not have been "medically necessary" or were "upcoded."
Investigation Can Be Key
Interviewing patients, referring physicians, employees and others can help establish a defense to your case. Medicare and Medi-Cal fraud cases tend to be document intensive and yet you need witnesses to help tell your client's story. Understand the documents and then interview the witnesses as well.
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