HEALTH CARE FRAUD

The nation spends trillions of dollars on various health care programs each year. In an effort to look after this significant investment, both the federal government and the state aggressively investigate and prosecute medical professionals and health care providers. Florida in particular is an epicenter for health care fraud enforcement and prosecution. In fact, Florida is the only state that has, not one, but two Department of Justice Health Care Fraud Strike Force Operations. These Strike Forces are teams of federal prosecutors and investigators who focus solely on health care fraud and nothing else. The government can prosecute these types of cases under both civil and criminal laws. 

In the civil context, the federal government’s primary tool is the False Claims Act (FCA), which provides that any person who knowingly submits false claims to the government is liable up to three times the government’s losses plus penalties for each false claim. In an FCA case, the federal government acts as the Plaintiff in a lawsuit filed against an individual or entity in federal court. These cases often involve a whistleblower who has made an allegation against a doctor or medical practice. Sometimes, these lawsuits are originally filed by the whistleblower’s attorney in what is referred to as a “qui tam” action. Although not as serious as a criminal case, the monetary and reputational harm that can result from a civil health care action can be quite severe. 

In criminal health care fraud cases, the government must prove beyond a reasonable doubt that a health care professional knowingly and willfully executed or attempted to execute a scheme to defraud a health care benefit program (e.g., Medicare, Medicaid, TRICARE, or a private health care payor). The government also criminally prosecutes medical professionals and those in the pharmaceutical industry, including pharmaceutical company representatives and salespeople, with violations of the Anti-Kickback Statute (AKS). In these cases, the government must prove beyond a reasonable doubt the existence of a knowing and willful offer, solicitation, payment or receipt of a kickback or bribe in connection with the provision of services for which payment is made under a federal health care program. The kickback or bribe can be anything of value, including gifts, under-market rent, or payments that are above fair market value for the services provided. In addition to the more traditional health care prosecutions, the government has on occasion charged doctors with drug distribution and delivery of narcotics causing death, where the government believes there was no medical necessity justifying the prescribing of controlled substances to a patient or patients.

In response to the COVID-19 pandemic, Congress appropriated $130 billion to healthcare practitioners through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). If the past is prologue, the government’s trend of prosecuting health care fraud will only increase in the coming months and years. If you or your business accepts federal moneys through the CARES Act or federal healthcare programs, the risk remains higher than ever that you could be ensnared in one of these investigations. 

Accusations of health care fraud, whether civil or criminal, can be life altering to say the least. Criminal charges can result in the loss of one’s medical license and possibly imprisonment. A civil judgment can lead to the loss of personal wealth gained over a lifetime of hard work. Because the stakes could not be higher, it is critically important that you hire the right attorney to start investigating and planning your defense strategy. As a former federal prosecutor, Andrew Searle has the experience and skills to provide an aggressive defense in any type of health care fraud case.