Medicaid Fraud Attorneys
This article focuses specifically on Medicaid fraud, which occurs whenever a state or federal Medicaid program receives deliberately falsified information.
This article will provide a thorough understanding of what Medicaid fraud is, how it’s detected, and the types of penalties you could face if you are convicted. False claims may be submitted by either providers or recipients, and both types are subject to severe penalties.
What is “Medicaid?”
“Medicaid” is a public assistance program that provides healthcare coverage to low-income individuals. It is funded by taxes at both the state and federal level. While certain federal guidelines apply across the board, the operation of those guidelines is often customized according to state law.
Eligibility for Medicaid assistance always requires financial need.
Whether it involves hospital services, assisted healthcare, diagnostic services, or transportation to a healthcare facility, most states are legally obligated to furnish eligible individuals with the services they need.
Additional Qualifying Factors
Additional qualifying factors may include pregnancy, caring for a child under 18, teenagers living alone, elder age, blindness, or some other disability. However, the Affordable Care Act may cover individuals in financial need who do not meet these criteria.
States vary in their coverage, but all are required under federal law to provide certain types of care to those who need it.
Non-mandatory requirements include prescription drug coverage, occupational therapy, optometry, chiropractic services, and dental care.
Medicaid also offers custodial care to help eligible individuals with daily activities such as eating, bathing, undressing, etc.. These services may be provided at home or at a skilled nursing facility.
What is Medicaid Fraud?
While Medicaid fraud can take a number of different forms, it falls into two general categories.
Medicaid Fraud Committed by Providers
Providers engaged in fraud often do so as part of their daily medical practice and continue to do so until and unless they are caught. As a result, the financial impact of provider fraud is generally more severe than fraud committed by individuals.
Some examples of Medicaid fraud committed by providers include the following:
- Billing for unprovided services: This straight-forward form of fraud occurs when providers submit claims for services they never provided. It can be easily detected by cross-checking allegedly provided services with the claimed recipient.
- Performing unnecessary tests: This more insidious form of fraud involves recommending tests that the patient does not actually need, for the purpose of increasing reimbursements. It is less easy to detect because a medical practice is subjective, and it is difficult to determine with certainty that a recommended test was unnecessary.
- Unnecessarily referring patients to outside providers: Similar to performing unnecessary tests, this form of Medicaid fraud involves instructing patients to seek the medical services of an outside provider, when they do not, in fact, need those services. It generally occurs when the referring physician has a relationship with the outside provider, whether the offender is motivated by financial incentives or the promise of reciprocal referrals. Like performing unnecessary tests, the subjectivity of medical practice makes this form of fraud difficult to detect.
- Unbundling packaged services: In this type of fraud, the provider splits a single service or traditionally packaged set of services into individual charges. For example, a single doctor’s visit may result in a charge for every individual event that occurs during that visit.
- Bundling services: This can be a form of billing for unnecessary services, in that a patient in need of a simple blood test is billed for a service that exceeds their need, such as a series of blood tests split across several appointments. By bundling services, providers are able to justify charging far more than the cost of the service the patient actually needs.
When providers commit Medicaid Fraud, it is problematic for several reasons. Obviously, it costs the government, and thus taxpayers, because Medicaid covered services are funded by taxpayer dollars.
However, Medicaid Fraud also wastes patients’ time and money, and can even put them in both direct and indirect physical jeopardy.
The reason is that a patient in need of a particular service is, for instance, spending the one morning they can take off of work traveling to a healthcare provider for a test they do not need, perhaps paying for childcare and transportation while losing out on hourly wages in order to do so.
Critical diagnoses can be missed, unnecessary prescriptions can be written, invasive procedures can be undergone without reason, and worsening illness or even death can result from what began as an easily treatable condition.
In other words, if you are a provider who has committed Medicaid Fraud, your crime is not simply financial in nature, and prosecutors are not likely to go easy on you.
Medicaid Fraud by Recipient
Because of the frequency with which providers engaged in their daily health care practice can commit fraud, and because of the potential for psychological and even bodily harm to patients, Medicaid Fraud committed by providers is generally a more serious offense than fraud committed by recipients.
However, recipient committed fraud still costs the government substantially and is accordingly the subject of vigilant investigative and prosecutorial efforts.
Generally, when a recipient commits Medicaid Fraud, they do so by either feigning or exaggerating the basis for eligibility. Examples include the following:
- Fraudulently reporting income: Medicaid eligibility requires that the individual earn below a particular income. Thus one of the most straightforward ways for a recipient to commit Medicaid Fraud is to report on their application that they earn less than they actually do.
- Providing an incorrect residential address: Because Medicaid benefits and requirements vary according to where you live, a recipient may lie about his address in order to receive the benefits of a more advantageous region. While claiming to live with a location eligible relative may be treated less harshly than a more bold-face lie, any false representation of your address will be subject to potential penalties.
- Falsely reporting one’s medical condition: Whether in an application for Medicaid benefits, or in a doctor’s appointment seeking treatment, a recipient may commit Medicaid Fraud by pretending to have a condition they do not actually have, or by fraudulently reporting the symptoms of a condition in order to receive an eligibility-granting diagnosis.
- Obtaining unneeded prescriptions: Patients may commit this type of Medicaid Fraud for several reasons, although the prescriptions obtained fraudulently are most commonly controlled substances. Whether unnecessary prescriptions are fraudulently sought to feed a personal addiction, to sell on the black market, or anywhere in between, falsely reporting symptoms to receive a prescription one does not need is a form of Medicaid Fraud.
Medicaid Fraud Statutes
Under federal law, Medicaid Fraud can give rise to charges under:
- the False Claims Act,
- the False Statements Act,
- the Federal Mail and Wire Fraud statutes, or
- the Social Security Act.
Violations under any of the above-mentioned statutes are generally punishable by up to five years in prison, along with fines that could amount to triple the government’s actual damages
Each false claim could constitute its own separate charge.
This means that the more false claims you submit, the more likely you are to face excessive jail time, potentially expanding far beyond the five-year maximum for a single false claim.
As each false claim generally comes with its own fine, a pattern of Medicaid Fraud can result in permanent financial devastation.
The strictest punishment for Medicaid Fraud under federal law arises where the prosecution can establish:
- a willful scheme;
- to defraud or fraudulently obtain money;
- from a healthcare program.
If these three elements are successfully proven, punishment can extend to 10 years imprisonment.
Most states have adopted some version of the False Claims Act, the False Statements Act, and the Mail and Wire Fraud statutes. Due to the fact that each state has its own Medicaid program, there are generally specific statutes at the state level criminalizing Medicaid Fraud.
If you are a provider, remember that a conviction under any healthcare fraud statute will likely result in the loss of your medical license, meaning that in addition to potential jail time and severe fines, your means of earning income to help build your life back will be removed.
Accordingly, if you are facing charges or if you are concerned about your previous conduct, be sure to consult with a well qualified criminal attorney immediately. Competent counsel will at the very least make your bad situation better, and at best eliminate it completely.
Detection and Investigation of Medicaid Fraud
There are a number of ways in which both federal and state governments detect Medicaid Fraud, depending on the type of fraud committed.
Medicaid Fraud committed by providers can be detected by technological advancements that identify patterns and inconsistencies in claims. Provider committed fraud can take varying forms and involve high levels of sophistication, but previous sources of investigation often reveal general patterns of fraudulent conduct that data analysis programs screen for in analyzing claims.
In addition, data analysis programs compare each claim submitted the general norm, and flag claims that fall outside the accepted patterns for further review.
As a recipient, detecting Medicaid Fraud can be more difficult, but crackdown efforts are on the rise. Technological advancements are similarly calibrated to identify both fraudulent patterns and deviations from normal claims.
As healthcare fraud is one of the most prosecuted crimes in the United States, patients are becoming increasingly educated about the warning signs. Thus a patient who has been given the run around by their healthcare provider may be a source of Medicaid Fraud detection.
For example, the patient might complain about their grievances to a new provider or other healthcare expert, only to learn that the suspicious behavior might constitute fraud. Whether the patient reports their suspicions about the healthcare provider directly or has a third party take action on their behalf, the point is that patient complaints may provide the basis of a government investigation.
In fact, whether suspecting patients are aware or not, the federal government incentivizes the reporting of Medicaid Fraud under the False Claims Act.
This federal statute encourages whistleblowers to come forward with suspicions of fraud by allowing them to serve as a plaintiff in a civil suit for damages against defendants accused of submitting false claims to the federal government. The federal government may or may not choose to join as a party in the suit. Either way, the whistleblower will be entitled to at least a portion of the recovery.
Further, the False Claims Act contains protections for whistleblowers by criminalizing any kind of retaliation the accused may be inclined to take against them. This is especially relevant where the whistleblower is an employee or other individual in a fiduciary relationship with the accused.
For the federal False Claims Act to apply in a Medicaid context, the false claims must be submitted to the Federal Medicaid program. However, many states have adopted their own version of the False Claims Act with the attendant protections for whistleblowers, which means false claims submitted to a state Medicaid program are similarly vulnerable to this form of detection.
The Result of Investigation:
Whether you are a provider or a recipient, you may not know that you are being investigated for Medicaid Fraud until after the government has gathered enough information to arrest you. This is true at both the federal and state level.
However, if you receive a letter stating that your eligibility for Medicaid benefits is under review, this is a signal that you are under investigation. It is imperative that you contact a criminal defense attorney immediately if you find yourself in this position.
Whether you have already been arrested or your conduct is to your knowledge undetected, a criminal defense attorney can help you determine your rights and responsibilities, in order to protect yourself against all potentialities that may impact your freedom.
What to Do if You Are Under Investigation.
If you are under investigation or if you have been arrested, it is important to understand that anything you disclose to investigators can and will be used against you. While our clients are generally aware of this fact, those who choose not to arm themselves with competent criminal defense counsel generally fall into one of two traps:
They come clean:
Defendants do this in hopes that their candor will endear them to the prosecution and that they will receive favorable treatment as a result.
This approach fails because prosecutors are primarily motivated by (1) the drive to stop Medicaid Fraud and (2) their own goals of career advancement. A full admission of guilt by the defendant is a near guarantee of success in the courtroom, which helps the prosecutor personally while also helping to solve the larger problem.
While the character of the defendant carries some weight, it is rarely if ever the sole factor in a decision to decline prosecution or to offer a favorable plea deal. Rather, prosecutors are most likely to help defendants when they feel some combination of sympathy to their character and uncertainty regarding their chances of success.
The point is that when you come clean about your guilt, you remove the latter motivation and essentially secure your fate.
Defendants under pressure often lose sight of the fact that investigators are trained to detect factual inconsistencies and accordingly bust false stories. While the natural impulse may be to conceal guilt under questioning, lies that seem airtight to you may be glaringly obvious to investigators.
Even if this is not the case, further investigation may reveal factual evidence you either forgot existed or did not know existed. Such evidence often conclusively contradicts the defendant’s story in ways they could not have anticipated.
Getting caught lying to investigators is problematic for two reasons. One is due to the legal principle called “falsus in uno, falsus in omnibus,” which is a Latin phrase essentially saying that if you lie about one thing, you are lying about everything.
In other words, even small white lies can destroy your credibility. Regardless of how unfair the assumption may seem, investigators are likely to conclude that your fraud has extended far beyond what they were able to uncover. The vigor with which your case is pursued accordingly intensifies in this scenario.
Perhaps the most unfortunate consequence of this common mistake is that it can give rise to the entirely separate charge of obstruction of justice. If convicted, this charge could add years to your original sentence.
To be convicted of obstruction of justice, the government must prove that you knowingly gave false information with the intent to impede a government investigation. At both the federal and state level, it can result in up to 20 years in prison.
In other words, attempting to minimize the damage of Medicaid Fraud could result in double the maximum punishment you would have received if you had told the truth.
What clients often fail to understand is that their job is not to convince the prosecution that they did not commit the crime. Attempts to do so often involve elaborate cover stories which fall apart under scrutiny.
Rather, it is the prosecution’s job to gather enough evidence establishing each element of the statute you are charged with violating, in order to convince a jury that you meet the relevant legal standard beyond a reasonable doubt.
Whether you are a licensed medical doctor or a patient, you cannot expect yourself to understand every nuance of how the law works, nor can you hope to fill in the gaps for your inattentive but affordable criminal defense attorney. You need vigilant representation and experienced knowledge if you are facing a charge as serious as Medicaid Fraud.