Legal Services for Mental Health Professionals
Mental health professionals have been in the news quite often for their fraudulent schemes in attempting to make more money. There is a keen eye on the practice because of the vulnerable state many mental health patients find themselves in.
Some common mistakes mental health professionals make that put them in civil and criminal liability include:
- Billing for unnecessary practices
- Billing for work not performed
- Misrepresenting what work was done on a patient
One major preventative tool that is used to combat health care fraud is the whistleblower reimbursement scheme that pays individuals who come forward with evidence. It also sues providers for fraud. The whistleblower may get between 15-30% of all money received through penalties for fraud violations.
The investigations and charges you may face as a mental health expert for healthcare fraud could be difficult to handle on your own, which is why you should contact an attorney to help you. It is important to know if you need to retain an attorney on your own or to represent your whole practice.
You must look for a lawyer’s advice to determine how you would best be represented with these charges. You may face jail time and significant financial penalties if you are found to be performing fraudulent activities in your practice. You should get ahead of any investigation by getting an attorney to help guide you through the investigation process.
The general application of healthcare fraud is when you as a practitioner or practice participate in a scheme to make money for services that were never rendered, or for participating in a scheme to make extra money off of referrals. Mental health professionals need to be especially careful with their practices to make sure they are not engaging in health care fraud.
When healthcare professionals are participating in health care fraud, they hurt:
- The government
- Private insurance companies
- Vulnerable patients seeking mental health aid
It is important for patients to get a certain level of care and when they are not getting such care, there could be negative effects on their mental health.
There are several ways you can commit fraud in your practice, and there are several federal statutes that cover health care fraud. The two main federal criminal laws are Health Care Fraud 18 U.S. Code Section 1347 and the False Claims Act. The 18 U.S. Code Section 1347 makes it illegal to knowingly defraud a private insurance company or a government insurance program.
There are several common schemes that are prosecuted under this statute as discussed below. The False Claims Act provides criminal and civil liability for submitting knowingly falsified claims to the government.
Knowingly violating the False Claims Act, regardless if you are blatantly ignorant of it, can hold you liable under this law. This law is extremely broad and covers several forms of false records.
The False Claims Act carries an $11,000 penalty for each false claim, and a potential damages penalty nearly three times the damages the government suffered. The criminal liability under this law can only be tested once someone knowingly falsifies a claim. It carries a criminal fine of $250,000 and up to 5 years of imprisonment.
Procedures and Process
During an investigation into health care fraud, you and your mental health practice may be audited. An audit may be done either internally or done by a third party or investigator. An audit tries to look into all of your billing practices to make sure that your services are lining up with what you are charging for them.
Internal investigations can also be done at your work to make sure you are in compliance. These types of investigations are important to make sure that you are in compliance with the healthcare fraud statutes. For an investigation, it is important to know what you and your coworkers are doing and how the work is getting reported.
Detailed records are always important to keep in case you are ever suspected of fraud. If you are suspected of committing healthcare fraud, the government may begin an investigation. In the field of mental health, it may be harder for the investigator to question and interview some patients; however, they will try and get to the bottom of what is going on for a patient’s care.
A government investigation will also likely involve questioning. If you or any of your employees are questioned, you may request to have an attorney present for questioning. An attorney will help assert your rights and make the questioning process much easier for you.
An experienced attorney shall help you throughout a government investigation, by working to assess the evidence and to help you plan a strategy to deal with the investigators. Just because you are under investigation, it does not mean that you have done anything wrong or that you will get charged.
Simply put, having an attorney from the onset of an investigation increases your odds of defeating any healthcare fraud allegations.
Medical fraud is detected through whistleblowers bringing a qui tam lawsuit. Whistleblowers are private citizens with insider information, that file a lawsuit against a medical professional or group for fraud related activities. If there is a successful conviction of fraud, the whistleblower may get between 15-30% of all money recovered by the federal government in the lawsuit.
Through audits, investigations, and whistleblower suits, there is often evidence of criminal charges that could be brought against you. Before a criminal trial, you may be questioned in an attempt to get a confession from you. If the Attorney General’s Office feels that there is enough evidence they will bring charges.
After charges are brought, there will be a grand jury hearing where the grand jury will decide if there is enough evidence to indict. Before a grand jury hearing, it is important to speak to an attorney to help you prepare for the hearing because there is a chance to get the charges dropped during the grand jury hearing.
When you have been indicted, your attorney and the government may work towards a settlement on the case or move towards dismissal of the case. If there is no settlement or dismissal, your case will most likely end up getting a trial date. Your attorney should work with you to review all of the evidence and prepare your best defense for trial.
For all of your criminal convictions, you will also have the right to have a trial before a jury of your peers.
In-Depth Look at Cases of Healthcare Fraud
There are several schemes that while they are not unique to the field of mental health, they tend to be more common in this field. The topic of healthcare fraud is rather large, and there are several different schemes that are all prosecuted by the federal government.
One scheme that is common with mental health is the act of billing for services not rendered. There is a particular problem with many inpatient and outpatient facilities that treat individuals with mental health problems.
This act involves billing for treatments of patients when there was no treatment given, and it is common within this field because often health care professionals think they may be able to get away with it.
Investigations into this are usually done by the DOJ and the Attorney General’s Office and prosecuted under the False Claims Act, Health Care Fraud Statute and other fraud crimes. The investigation will look to see what you billed your mental health patients for and try and figure out if there was ever any work actually done.
For the act of billing for services not rendered, you should speak to an attorney about what practices you perform and how you keep a detailed record. It is important to always keep a record of any billed activities, so you can defend against these fraud claims.
Another common scheme is billing for non-covered services as a covered service. One of the most common instances covered under this scheme is billing for group therapy when there is no group therapy going on. Often providers will say there is group therapy for activities like bingo or watching a movie.
If you are caught billing Medicare and Medicaid for these types of activities, you may see criminal liability under the False Claims Act.
The investigation into this will usually involve questioning of patients and providers to try and see what activities were going on during the purported billable activity. There is a good chance, that there will be some evidence of what activities were done, so it is important to not bill for improper activities.
You should contact an attorney to make sure you are in compliance with the healthcare laws and if you are under investigation. The investigation process into these charges can be long and cumbersome, so having an attorney to speed up the process can really make a difference.
Also if you are charged, an attorney can find out what evidence the prosecutor has to be able to defend against the evidence.
One dangerous and publicized scheme is overprescribing and providing services that are medically unnecessary. This is a crime that is common among psychiatrists who prescribe mental health drugs. There is a tendency in the field to overprescribe tends to be publicized.
If you are found to be overprescribing, you may be charged with fraud based claims like Health Care Fraud, but you may also face charges if anyone is hurt by your overprescribing. Sometimes these cases come forward due to a patient being harmed or killed by their prescription, which could result in much higher charges against you.
The investigation into providing unnecessary services looks into individual cases to try and assess the needs of the patients that you saw and try and find if you were meeting their needs. It is hard to tell what the needs may have been, but if there is a clear pattern of overprescribing, it may be easy for the prosecutor to tell.
It is important that you retain an attorney during the investigation process – especially if you are charged. An experienced attorney will know the standards involved in mental health patients being overprescribed and getting unnecessary services.
In the defense against these charges, one of the most common defenses is that you acted within your discretion with your determination of prescribing or providing certain services.
Penalties of Healthcare Fraud on Practitioner
There are several punishments that may befall you, if you participate in fraudulent acts against mental health patients or against the insurance companies. The range of punishments includes:
- Criminal charges with jail time
- Monetary penalties and reimbursements
- License loss
- Harm to reputation
If you are successfully convicted of Health Care Fraud, you could face:
- 10 years in prison if no serious injury was involved
- 20 years in prison if serious injury was involved
- Life sentence if death was involved
In the event that you are convicted under the False Claims Act, you could face up to 5 years for submitting false reports to Medicare and Medicaid.
There is a high potential, especially through the False Claims Act, to face quite severe civil penalties. Reimbursement could be one of the highest expenses because you will need to pay back the government for all of the claims you made that involved fraud.
Every year the federal government gets billions of dollars recovered from fraudulent claims, which come from successful cases and settlements with healthcare professionals.
If you are acting in a way that is putting your mental health patients in danger or treating them improperly, you may also lose your medical license. If you are acting fraudulently and people are injured as a result, you may not be allowed to practice anymore. Several states may prevent you from practicing in their state following a fraud case as well.
Abuse of a group of people who may have a lower ability to defend themselves is also highly frowned upon by society. The reputational damage that you may face for fraud of mental health patients could be quite immense. It might hinder your ability to get a job in the future or get patients if they know of your fraudulent practices.
Preparing a Defense
If you are convicted of health care fraud, the conviction could come with criminal fines, jail time, and money loss. One of the largest costs of health care fraud comes in the form of civil and criminal penalties, which may end up being much more money then you or your practice can afford.
Getting ahead of these charges and defeating them is extremely important, so you should hire an experienced attorney with criminal healthcare experience.
In the field of mental health, a fraud investigation could result from a patient or a loved one complaining about your service. A simple mistake or something more severe may trigger an investigation. So understanding what happened and what the authorities are searching for is important in any fraud case.
An attorney will help sort out what discrepancies there are and work with the authorities to help remedy or explain any potential problems.
When you are under investigation and get charged, the prosecutor may charge you under multiple statutes for fraud to see what sticks. An experienced attorney should know how to handle these multiple charges for example; if the crimes overlap, or if there are unfounded crimes listed, the attorney will work to have these excess charges dropped.
If you are part of a medical group, you must understand what implications are against you. For conviction of health care fraud, the prosecutor will need to show that you were the one who committed the offense. If there was a case of health care fraud, a possible defense would be that you were not the one who committed the offense.
There are certain exceptions to some of the health care fraud statutes which may relieve you of criminal liability. If you want to use any of the legal exemptions, it is advised that you first speak to an experienced criminal healthcare lawyer to get a legal evaluation, so as to see if you are in compliance with the exception.
After you are charged, an attorney may work within the exemptions to see if your actions were in fact exempt.
If you want to avoid liability for health care fraud, you need to keep accurate and detailed records of all insurance based claims and of all services you provide. All levels of the medical profession from administration to the doctors need to keep accurate records. All employees need to be trained on the proper procedure and the law to make sure they are in compliance.
Seek the help of an attorney if there are any questions of about your compliance or any past problems and how to remedy these problems. As a health care professional, you should have a good plan in place to prevent future problems and to repair any past mistakes.
If you are under investigation or charged with health care fraud, you should speak to a lawyer. If you are proactive and you work with your attorney, you may be able to avoid charges or lessen the severity of any charges. Communicating with the authorities might make you incriminate yourself, so having an attorney might help you avoid common pitfalls during questioning.
As a mental health professional, it is important to have strong representation that will help you get to the bottom of these allegations and defeat them. You need an attorney that understands the intricacies of the law, and who will help you plan a customized course of action for you.
The field of mental health professionals is under a keen eye for instances of fraud because of the problems that have been found in the past. Get ahead of the allegations against you and get an experienced attorney that will make the difference in your healthcare fraud case.