False Claims Act Violations
Our Health Law Group handles all kinds of complex federal criminal charges related to health care fraud and violations of the False Claims Act.
Unlike state prosecution, investigations by the federal government often include multiple agencies.
Federal courts have specific rules that must be followed that are different than state courts. It is important you seek the assistance of an experienced federal criminal defense attorney, someone who is familiar with the federal laws and court rules, and one who knows the types of investigations conducted by federal agencies.
What are False Claims?
As health care programs have become more accessible to both patients and doctors, the number of fraudulent claims made has grown as well. Generally, this is referred to as a false claim.
The False Claims Act is a civil remedy for the government and private citizens. If you happen to be prosecuted criminally, your actions and penalties will fall under the criminal statutes. This criminal statute is called “False Statements Relating To Health Care Matters.”
There are many ways that could lead to your prosecution for false statements.
For example, let’s say you are accused of submitting a bill to an insurance company with a false or misleading statement. This bill states that you have provided services to a patient when, in reality, you have not. These types of billing errors could lead to a government investigation into your practice.
False Statements Relating To Health Care Matters 18 U.S.C. § 1035.
As mentioned above, being criminally prosecuted for making false claims takes you out of the False Claims Act of 31 U.S.C § 3720. The criminal statute for false claims is 18 U.S.C. § 1035, which is titled False Statements Relating To Health Care.
This statute prohibits you from knowingly or willfully making a materially false or fraudulent statement, either through a scheme, in writing or a document, or an entry in connection with a matter of a health care benefit program in order to receive a payment or health care benefit.
Examples of False Claims Act Violations
Doctors can be accused of making false statements for various reasons, including:
Billing for Services Not Rendered. In early 2017, the United State Attorney charged six medically related individuals with crimes that related to health care fraud. Amongst the crimes charged, the fourth charge was Statements relating to health care under 18 U.S.C. § 1035. Some of the facts for that case involved these individuals making and submitting claims for payment and reimbursement stating that they were providing services to patients when they, in fact, were not providing any services. Specifically, the doctors were submitting pre-authorization for medical tests and procedure, they then received the payment, but then did not complete these medical services.
Billing for Services Not Medically Reasonable or Necessary. In mid-2018 a doctor was sentenced for participating in a scheme that involved falsifying medical records in order to help the group fraudulently bill for medical services and supplies that were not provided, provided when it was not necessary, or simply billed when it was a lie. The damages were found to be approximately $30 million. These claims were provided to Medicare and Medicaid that included signing on medical charges where patients were not actually examined, writing unnecessary prescriptions and referrals, and giving tests and supplies that were not needed.
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Elements of Illegal False Statements
In order to prove a case against you, the prosecution will need to prove each of the following elements (only “a” or “b” are required, but not both).
- you knowingly or willfully falsified a material fact by trick or scheme; or
- made or used a materially false statement or representation in writing, on a document, or as an entry; and
- that this was done in connection with the payment of a benefit or services of a health care benefit program.
“Knowingly” or “willfully” means that you had knowledge that the false statement was made, or that you did not correct.
For example, this could mean that you had a medical record and you made an entry that was false. However, it could also mean that you were reviewing a medical record and noticed an entry was false but submitted the record anyway.
You may also be charged for attempting to ensure that a false statement was not found out by using some sort of plan or making additional false statements.
For example, this could mean that you made a false statement to a patient in order for them to request a service, then once the service was ordered, you convinced them that it was not necessary, but you still billed for it. Writing a report or submitting a form online with a false or misleading statement is also illegal.
The government must prove that you made these false statements in order to receive a benefit from a health care program.
It is important to note that this does not require that the program be one of the many federal medical benefit programs. Rather, this can be any program (such as a private program or insurance group).
This could mean that you made one of these fraudulent statements and you did so purposely to get something (money, items, goods) in return from health care benefit program.
Investigating Allegations of False Claims
An investigation for false claims can begin for many different reasons. They types actions that could spark the interest of the government can come from a tip or whistleblower, audit, evaluation and inspections.
How Are False Claims Detected?
- Government Task Force. The health care fraud task force was created by the federal government to focuses on audits and conduct widespread data digging assignments.
- Tips From Patients. A tip could come from a patient; maybe they noticed some inconsistencies in their billing. They may bring this to your attention, or they may go directly to the government to make a complaint. It could be that someone has filed a complaint against you under the False Claims Act (see below for a short explanation of the False Claims Act). These things would get the government involved in your daily business and result in an investigation or inspection.
- Audits. Another way that you may be found out is through an audit. Audits likely involve resources from multiple agencies. These agencies include the: Department of Health and Human Services; defense contract audit agencies; the offices of personnel management; civilian health and medical program of uniformed services; health care financing administration; and even private insurance companies. Audits could simply mean that these agencies are looking into the claims that you are submitting. They also could be looking for patterns or inconsistencies that may cause concern for the types of services and things you are billing for. Audits are fairly common because of the many agencies involved.
What Will Happen If You Are Suspected?
An investigation for false claims will likely take some time as the inspecting agency will try to be as thorough as possible. Even though these investigating agencies may have access to numerous documents and witnesses, they may still try to contact you during the investigation.
What Should I Do If I Am Contacted Or Under Investigation?
If you are contacted, the investigating agency will likely be interested in asking questions or getting documents from you. If you are contacted by an investigating agency, it is important that you seek the advice of a criminal defense attorney.
Like mentioned above, they may already have the documents they are interested in–because you have submitted them as a claim reimbursement. So there is often not much that you can do about these documents.
However, in the event that they contact you to ask questions, it is important that you contact a federal health care fraud attorney immediately.
Any time that you make statements, those statements can be used against you in any kind of court proceeding (criminal and civil). Prior to answering questions, contact a criminal defense attorney.
Court Actions To Punish Federal False Claims
All claims (civil and criminal) are filed by the government or through Qui Tam, which allows individuals to file actions on behalf of the government. These are usually brought by a whistleblower or employees of health care providers who may have evidence of a violation. Once the claim is filed, you’re expected to answer it. You’ll also receive a subpoena, which is a summons for you to appear in court.
Throughout the process, you must practice due diligence, which includes taking all steps necessary to satisfy any legal requirements you face (including giving depositions and participating in interrogatories).
You are allowed to have legal representation present when you are answering questions or giving depositions.
It is important to have an attorney with you to make sure you are not being asked self-incriminating questions, or the person asking you the questions is not misconstruing your responses. All of this is included in your preparation for trial.
The Federal False Claims Act doesn’t include prison sentencing because it is a civil claim. However, the criminal equivalent of false statements does have criminal penalties.
If you are facing a criminal investigation or charges, there are similar steps that you will go through. Such as the initial questioning. However criminal cases involve additional steps. Because it is a criminal case, you have a right not to answer certain questions, and you will have the right to have an attorney present.
If the investigating agency feels they have evidence that you committed a crime, they will write and submit a criminal complaint. A criminal complaint generally provides details of your acts that are criminal and violated crimes. The criminal complaint will provide what criminal statutes your acts violated.
The criminal complaint does not yet mean you are pending trial.
You may be pending trial if the prosecuting agency decides to proceed with your case. They will then draft an indictment and present the case to a Grand Jury for a determination of probable cause.
If the charges are found to meet the requirements of probable cause, your case will then be set for trial.
Prior to trial, both the prosecution and your attorney will begin to get more familiar with the facts of your case. It will be important that you work with an experienced federal criminal defense attorney because of the knowledge required to defend federal cases.
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Penalties For Federal False Statements
Generally, if you are charged and found guilty of making false statements relating to health care matters, you can be fined and serve up to five years in prison. It is important for you to know to know that the penalty you receive will depend on the facts relating to your specific case. The court will look at your facts and hear arguments from your criminal defense attorney and the prosecutor to make this determination.
In addition to the specific penalties for this making false statements relating to health care matters, your acts could also lead to additional charges. These charges could include:
- Health care fraud (because your statements were for the purpose of fraud),
- Wire fraud (because you submitted these statements through the internet),
- Wrongfully Obtain and Disclose Individually Identifiable Health information (for your use of your patient’s information)
- Identity theft (for making up a patient’s information or using their information)
These are only some of the additional crimes that you could be charged with. But that does not mean you will be charged with them. However, you should know that if you are charged with these crimes, each one has their own set of penalties. Some of those penalties are far more serious than making false statements relating to health care matters.
Evidence and statements made during your criminal case, plus any admissions of guilt, may be used in a civil case against you.
If you have a civil case, it will have its own set of penalties. There are potential statutory penalties for violating the False Claims Act. Civil penalties currently range from $5,500 to $11,000 for each false claim (the statute states $5,000 to $10,000 but can be adjusted).
This can include paying treble damages to the government (three times the amount you defrauded). You may lose your license or certification. Whenever there is fraud or misrepresentation, you are at risk of losing, or possible suspension of, your license or certification.
Civil cases generally take longer than criminal cases.
There is a great likelihood that even if you are charged criminally after a civil matter has started, your criminal case will finish first. This is why the outcome of your criminal case is so important in relation to your civil case.
Whether it’s a criminal charge or a civil claim, there will be a collection of evidence in preparation for trial. In order to ensure you have all of the information necessary to defend yourself at trial, it’s important to find an experienced white collar criminal attorney to help.
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The Difference Between Federal and State Crimes
As you might have assumed, being charged with a federal crime is often far more serious than being charged with a local or state crime. The penalties are more severe for the same, or similar crime. Most often you could face longer periods of incarceration and higher fines.
Penalties for federal crimes can go beyond just jail and fines.
Being charged with a federal crime change your life because of what could happen to your job, family, and reputation.
Defending Charges and Allegations of False Claims
Criminal defense theories can come in many forms. An experienced criminal defense attorney will work with you to understand the facts of your case and to establish a viable defense for you.
A defense is necessary in your case to help reduce the likelihood of a guilty verdict, and increase the likelihood of a dismissal of the case against you. A good defense could also result in a more favorable sentence if you are ultimately convicted.
Contact a Federal Criminal Defense Attorney
The attorneys here at the Health Law Group are well-informed as to the specific penalty you are facing. We are under the federal sentencing guidelines combined with the internal policies of either the court or the prosecution–allowing you to get a better idea of your future.
Our attorneys are familiar with the procedural guidelines of all federal courts and have established a working relationship with federal prosecutors and judges.
Due to the complexity of federal cases, and the added complications of the evidence in fraud cases, it is important to contact a federal criminal defense attorney as soon as possible.
If you suspect that you are being investigated for or you are charged with false claims or making false statements relating to health care matters, contact a federal health care crimes attorney immediately to help ensure the best outcome for your case.