Health Care Fraud - “Unbundling”
Healthcare fraud can come in many different forms. Because health care providers are responsible for making assessments, providing services, prescribing additional services, and billing for services rendered, there are numerous ways that your acts can result in allegations of health care fraud.
Health care fraud is being heavily enforced by the government through a task force responsible for conducting audits on health care providers to determine any discrepancies in their claims. If an auditor finds a discrepancy, the task force will conduct a full investigation.
Unfortunately, making health care benefits claims can be more difficult than many assume, and it is easy to make mistakes. If you are being investigated for, or you have been accused of health care fraud, it is important that you contact a criminal defense attorney. One of our experienced criminal defense attorneys can assist you in the process of these allegations.
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What Is Unbundling?
Unbundling services has to do with the way a healthcare provider bills patients for services provided. You can be accused of unbundling if a service you provide has three steps and you require three visits when only one is necessary.
The same can apply if you use codes for billing services that are lumped together rather than separated for each step. Because some services require additional steps, billing can become complicated and result in mistakes.
Statutes That Regulate Health Care Fraud
If you are accused of unbundling, you will find that the statute that you are accused of violating might not specifically say “unbundling.” Rather your violation might fall under one of the general health care fraud statutes:
Healthcare Fraud 18 U.S.C. § 1347
18 U.S.C. § 1347 is the traditional health care fraud statute which makes it illegal to knowingly and willfully defraud health care benefit programs by using false representations to obtain any benefit from a health care program. This statute essentially includes all acts that relate to health care fraud. If you are accused of health care fraud because of unbundling, this statute can apply if you knowingly and willfully unbundled services.
For example, if you tell a patient that you need to conduct a set of lab tests and all of the tests can be performed on the same day, but instead, you schedule different visits for each test and subsequently bill for each visit, that could be a form of unbundling. If you purposely scheduled these tests on different days with the intent to make more money, this would also be considered a violation of 18 U.S.C. § 1347
False Statements 18 U.S.C. § 1035
18 U.S.C. § 1035 makes it illegal to falsify, conceal a material fact, or make a materially fictitious statement to claim or for the delivery of a benefit of a health care benefit program. A violation of 18 U.S.C. § 1035 could be similar to a violation of 18 U.S.C. § 1347; however, this statute looks at your acts differently to determine whether there is fraudulent conduct that can lead to a health care fraud violation.
Examples of Unbundling
If you have a patient to whom you prescribed a set of services that must be completed in separate office visits, when it comes time for billing for those services, the normal code to use accommodates for all the times that the patient came in and you provided services. However, instead of using that correct code, you used separate codes for each visit. As a result, the patient or the health care benefits program was billed extra due to the way you used the coding system.
Another way that billing can cause you to be accused of health care fraud for unbundling is when you have to bill for an extra service. In this instance, it is not just that you added the additional service, but to include the additional service, you had to unbundle when you entered the charging codes. So, instead of entering a single code that would cost an amount, you enter three codes that cost more individually and then include your additional service.
Unbundling can happen across the board in health care systems, including dental offices. For example, when billing for a tooth extraction, one code is typically used for the entire process. However, there is the ability to individually charge for each step of the process such numbing agent, incision, extractions, stitches, materials to create a blood clot, and more. Using one code for the entire process helps to regulate the price for the procedure, whereas using separate codes for each step raises the medical bill.
The government is going to apply the facts of your case in various ways to make an allegation that you have committed health care fraud. The evidence they use will likely come with different types of extensive investigations; however, regardless of these investigations, the fact may not actually match the crime. You will need an experienced criminal defense attorney to assess the case to make this determination and help defend your case on a factual basis. Our attorneys will take the time to learn the details of your case to make appropriate factual defenses.
Penalties That Can Result From Health Care Fraud
Penalties for federal crimes are far more serious than state crimes since the federal system generally follows sentencing guidelines. Because of this, the potential prison and incarceration terms are for longer times, and the financial penalties are for higher fines.
18 U.S.C. § 1347
Under 18 U.S.C. § 1347 for health care fraud, you can face up to 10 years in prison and a fine; however, if the fraud results in the serious bodily injury of another person, that penalty will increase to a fine and up to 20 years in prison.
This means that if you provided a service that was not necessary or you split up services when they could have been completed in one appointment, resulting in the serious bodily injury of the patient, you will face a higher penalty if you are found guilty.
18 U.S.C. § 1035
Under 18 U.S.C. § 1035 for False Statements in healthcare matters, you can face up to 5 years in prison or a fine of up to $25,500 or both.
It is important for you to remember that if you are alleged to have committed multiple acts of either or both statutes, you can be charged for each act. This means that each of the charges (each act) will have its own penalty.
The unforeseen penalties
Many people do not realize that prison and fines are not the only penalties they face for being found guilty of a crime. Simply being charged with or accused of a crime can lead to unexpected penalties that could affect you for the rest of your life and the rest of your career.
Reputation Damage and Loss Of Job
One of the unforeseen penalties with the biggest impact is that you lose your reputation, which will have an impact on your professional career. This will likely happen as soon as you are accused of health care fraud. Once you are accused you can, and most likely will, lose your job. This is because the type of crime you are being investigated for and/or being charged with is a crime of dishonesty and colleagues may lose trust in the way you conduct your work.
The following is a list of potential charges that could be brought against you:
- Conspiracy (a charge that refers you working with another person to carry out health care fraud).
- Money laundering (if you tried to cover up the money you were making from health care fraud to avoid being detected by the government)
- Wire fraud (if you used a computer to submit your claims to health care benefit programs)
- Mail fraud (if you used the mail system to submit your claims to health care benefit programs).
Because of all the potential penalties that you may face, being represented by an experienced criminal defense attorney will be in your best interest. An experienced criminal defense attorney will be able to assess your case to find defenses.
In the event that you are sentenced, the court will hear arguments from both the prosecution and your criminal defense attorney. These arguments will be related to the case and your character as a person. Our criminal defense team has the experience to make the most appropriate arguments to convince a judge of a lighter sentence.
How Healthcare fraud Is Investigated
The initiation of an investigation for health care fraud can come from different reasons. These reasons can include a tip from another provider, a complaint by a patient, an internal audit from your office, or maybe an audit from the health care fraud task force. Part of the investigation will include interviews of potential witnesses and maybe even others who are also committing fraudulent acts.
These investigators will look into your submissions for health care benefits to determine whether there was a simple mistake or if there is a full scheme the is being implemented. If the information is not provided by the documents that are easily accessible to them, they may reach out to you to see if you will provide those documents.
If you are contacted by law enforcement for questioning or to provide documents, it is in your best interest to contact an experienced federal criminal defense attorney to determine what you should answer and provide. You may be served with a subpoena to legally require you to provide those documents that are being sought by law enforcement.
Investigation vs. Being Charged
If you are being investigated for health care fraud on the basis of bundling, even though there is a possibility that you will be contacted, it is unlikely. The reason that you probably will not be contacted is because law enforcement will likely be investigating you for a period of time and wait to see if you commit these alleged acts while under surveillance. The first time that you hear about these allegations could be at the time of arrest.
Being charged is different than the investigation. Essentially, once you are charged with a crime, the investigation is practically done. If there is a criminal complaint against you and law enforcement has discovered enough evidence, they could be looking for more. While you will be charged, you are not yet pending trial.
An indictment usually happens through a grand jury where the prosecutor calls witnesses to determine whether there is probable cause that you committed a crime. These hearings are done behind closed doors and are secret.
Another way to bring charges against you is by information at a preliminary hearing. A preliminary hearing is open to the public- you will be there, and your attorney will have the ability to cross-examine witnesses. Generally, in a case involving health care fraud, the witnesses may be co-workers and patients, but for the most part, they will be supervisors who can discuss formal documents that you have submitted.
Having an experienced criminal attorney at the pre-indictment stage is important because you can start defending your case right away. One of our attorneys will be able to contact law enforcement and/or the assigned prosecutor to help defend your case and mitigate penalties.
What To Do If You Are Accused
If you find that you are being accused of health care fraud for unbundling, it is important that you contact a criminal defense attorney. Review your records to see what you might have been doing wrong. If you can pinpoint any wrong-doings, or even mistakes, discontinue that specific practice.
An experienced criminal defense attorney will help you review your practices and will help give advice on the best way to move forward on your case.