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One of the biggest mistakes you can make in a Medicaid fraud investigation is to meet with the investigators before you have thought through your defenses.
Merely denying the investigator’s allegations will not convince them to go away. You must have a strategy for convincing them not to charge you with a crime. This strategy should include both legal challenges and challenges based on the evidence. The starting point is getting an objective understanding of the facts, including any mistakes you may have made. Sometimes clients had no intent to commit Medicaid fraud, but mistakes were made. You need an objective look at your records and an understanding of where things may have gone wrong. Once you understand where the problems are, you can begin to build your defense. You also need to understand the evidence against you. Do the investigators have documents or witnesses that they intend to use against you? What are those documents and who are those witnesses? Are there other documents that will contradict the evidence that the government thinks it has against you? You need to think through all the evidence the government may have before you respond to the investigators’ questions. The investigators will not give this information to you. But an experienced Medicaid fraud lawyer can often figure out the investigators' concerns by talking with them before they get a chance to ask you any questions. You have a constitutional right to remain silent and to require the government to prove its case beyond a reasonable doubt. If, after conducting a review of your records, it appears that you have serious problems, your lawyer may recommend that you exercise those rights. On the other hand, if the review of your records reveals that the government is mistaken or that there are weaknesses in its case, then your lawyer may advise you to produce evidence to raise doubts about the strength of the government’s case against you. Your lawyer may also decide to have you speak with the investigators under a procedure called a proffer. A proffer allows you to tell your side of the story, but prevents the government from using your statements against you as long as you tell the truth.. For example, if you are accused of making false statements, you may be able to avoid criminal charges by giving the investigators evidence that the statements were true when they were made, or that you believed the statements to be true when they were made, or that any problems with the statements were the result of a mistake and not an intentional attempt to defraud the government. Medicaid fraud investigations are not always black and white. There are often gray areas where the government will be willing to negotiate a resolution without going to court. You need to have a complete understanding of your case – and a complete understanding of what the government may and may not do – in order to prepare your defense. The bottom line is: Do not rush into responding to a Medicaid fraud investigation. An effective defense requires a thoughtful strategy based on the law and the evidence. For more tips on how to respond to a Medicaid fraud investigation, download our free report, "5 Deadly Mistakes in Medicaid Fraud Investigations." Just click here to download a free copy. Then call an experienced Medicaid fraud defense lawyer to discuss the specifics of your case. To schedule a free and confidential consultation, call us at (212) 601-2728. John Howley, Esq. The Howley Law Firm P.C. 350 Fifth Avenue, 59th Floor New York, New York 10118 (212) 601-2728
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Never talk to Medicaid fraud investigators without a lawyer.
Many clients ask, “But if I hire a lawyer, won’t the investigators think I’m guilty?” Let’s get something straight right off the bat: If the investigators have contacted you, then they already think you are guilty. Talking to the investigators without a lawyer will not convince them that you are innocent. The investigators are not reaching out to help you. They want to charge you with Medicaid fraud. They want to use your own words to convict you. An innocent mistake or memory lapse about a minor detail can be deadly. For example, if you say something that is not 100% consistent with what they have seen in the records, the investigators will use that inconsistency to argue in court that you are a liar. Medicaid fraud investigators work in teams. If you agree to meet with them, they will put you in a small room with no windows. At least two investigators will interrogate you. While you are being asked questions, one of the investigators will take notes. Those notes will be used against you. You need to protect yourself. An experienced Medicaid fraud lawyer will act as a buffer between you and the investigators. He can talk to the investigators, learn what they know, and discuss their concerns. Most importantly, your lawyer may learn where the gaps are in the investigators’ case. This is critical information that will help you develop a defense. An experienced Medicaid fraud lawyer knows what types of arguments and evidence work to convince investigators that they have a weak case. He knows what types of arguments and evidence can backfire by convincing investigators that you are guilty or hiding something. In addition, unlike you, your lawyer can present arguments without incriminating you. Remember, anything that you say is an admission that can be used against you in court. Your lawyer can present arguments and questions in ways that will not be admissions and cannot be used against you in court. In some cases, your lawyer can negotiate a resolution without you ever having to speak with the investigators. In other cases, your lawyer may negotiate a “proffer” agreement. This type of agreement allows you to explain your side of the story directly to investigators without them using your statements against you as long as you tell the truth. You cannot obtain these protections on your own. In fact, the investigators will not advise you of these protections. Their job is to interrogate you. They want to keep you afraid and off balance. They want to double-team you and build the case against you. Without a lawyer, you are at a serious disadvantage. Having an experienced lawyer on your side tells the investigators that you are taking the investigation seriously, and that you are ready to challenge any charges against you. For more tips on how to respond to a Medicaid or Medicare fraud investigation, download our free report, "5 Deadly Mistakes in Medicaid Fraud Investigations." Just click here to download a free copy. Then call an experienced healthcare fraud defense lawyer to discuss the specifics of your case. To schedule a free and confidential consultation, call us at (212) 601-2728. John Howley, Esq. The Howley Law Firm P.C. 350 Fifth Avenue, 59th Floor New York, New York 10118 (212) 601-2728 Medicaid Fraud Investigators Won't "Go Easy" on You Just Because You Admit to Making Mistakes7/5/2016 Some clients believe that the investigators will “go easy” on them if they just admit they made mistakes, turn over all of their documents, and say they are truly sorry. This approach is based on a complete misunderstanding of how Medicaid fraud investigators work.
A Medicaid fraud investigator has one job and one job only: to gather evidence and press charges against you for Medicaid fraud. If you make statements or turn over documents that help the government’s case, then the investigators will say thank you and send the case to a prosecutor for criminal prosecution. Any admission you make before you have an agreement with the investigators or prosecutor will only increase your chances of criminal charges. The purpose of cooperating with Medicaid fraud investigators is not to surrender your rights. The purpose is to convince the investigators not to refer your case for criminal prosecution or, if criminal charges are inevitable, to limit the charges to less serious crimes. Your best chance of avoiding criminal charges is to raise doubts about the strength of the case against you. Only after the investigators believe they may have problems proving their case, and that you are prepared to vigorously defend yourself, will they be willing to discuss a resolution that avoids criminal charges. Turning over documents is a very complicated decision. Depending on the nature of the documents, you may be required to turn them over to the government. Or you may have the right to refuse to turn them over or to turn them over only in response to a specific, formal request. You should have a lawyer review the investigators’ requests and your documents to determine what must be turned over. There may come a time when you will want to make admissions or turn over documents. For example, the government may be willing to enter into a settlement or plea agreement that avoids or reduces criminal charges on the condition that you disclose certain information or make certain admissions. Or your lawyer may negotiate a “proffer” agreement that allows you to tell your side of the story without anything you say being used against you. As a general rule, you should not turn over documents unless you have no choice because of a subpoena, court order or other legal requirement, or because you have a specific reason such as to support your defenses or to comply with an agreement that avoids harsh penalties. For more tips on how to respond to a Medicaid or Medicare fraud investigation, download our free report, "5 Deadly Mistakes in Medicaid Fraud Investigations." Just click here to download a free copy. Then call an experienced healthcare fraud defense lawyer to discuss the specifics of your case. To schedule a free and confidential consultation, call us at (212) 601-2728. John Howley, Esq. The Howley Law Firm P.C. 350 Fifth Avenue, 59th Floor New York, New York 10118 (212) 601-2728 One of the worst mistakes you can make during a Medicare fraud investigation is failing to respond to the investigators.
Burying your head in the sand will not make the investigators go away. They will simply finish their investigation without your input. They will report to the prosecutor and the court that you refused to cooperate. They will argue that your refusal to cooperate shows that you are guilty and deserving of the harshest punishment. That said, you should never answer the investigators’ questions or turn over any documents before consulting with an experienced lawyer. Anything you say can and will be used against you. So, what should you do when contacted by Medicaid or Medicare fraud investigators? Be polite and professional. Let the investigators know that you want to cooperate, but that you cannot talk right now. Then get professional help and advice right away. If you are contacted by letter, bring the letter to a lawyer and get advice on how to respond. Make sure that you or your lawyer responds by the date in the letter, even if it is only to ask for more time. If you are contacted by telephone or in person, politely tell the investigator that you cannot talk right now. Ask for their name and telephone number. Tell them that you will get back to them. Then bring the investigator’s contact information to a lawyer for advice on how to respond. Responding promptly to fraud investigators and letting them know that you are willing to cooperate with the advice of an attorney are the first steps to preventing a catastrophe. You cannot build a defense or negotiate a resolution of the investigation unless you are in regular contact, through your lawyer, with the investigators. Staying in contact with the investigators will allow give your lawyer insights into the strengths and weaknesses of the case against you. That is critical to building your defenses. For more tips on how to respond to a Medicaid or Medicare fraud investigation, download our free report, "5 Deadly Mistakes in Medicaid Fraud Investigations." Just click here to download a free copy. Then call an experienced healthcare fraud defense lawyer to discuss the specifics of your case. To schedule a free and confidential consultation, call us at (212) 601-2728. John Howley, Esq. The Howley Law Firm P.C. 350 Fifth Avenue, 59th Floor New York, New York 10118 (212) 601-2728
The Medicaid Fraud Control Unit (MFCU) is responsible for investigating and prosecuting health care providers suspected of Medicaid fraud. It is a division of the New York State Attorney General’s Office.
The MFCU often begins its investigation by serving a subpoena requesting the records of a specific number of patients. Understand that the investigators are not on your side. This is not a routine audit. This is a criminal investigation. How you respond can mean the difference between an inconvenience and a criminal indictment. A subpoena indicates that the investigator already believes that you may have committed fraud, and the investigator’s job now is to build a case against you. Do not think you can talk your way out of this investigation. The warning you have heard countless times on television is true: Anything you say to the investigator can and will be used against you in a court of law. Your first response should be to contact an experienced Medicaid fraud lawyer before responding to the subpoena. By starting early in the process, your lawyer can review the subpoena to make sure it was properly issued and served. He can review the requested records to determine what concerns the Medicaid Fraud Control Unit may have. He can work with you to prepare both your response to the subpoena and your defenses to any potential criminal charges. Your lawyer will determine what documents must be produced, and what documents should not be produced. While you must comply with the legal requirements of the subpoena, you are not required to volunteer information or documents that have not been requested. For example, the Medicaid Fraud Control Unit is only permitted to subpoena records of Medicaid patients. It may not subpoena the records of any other patients. An experienced Medicaid fraud lawyer can help you respond to the subpoena to protect your rights. Investigators often insist on taking your original records and copying them at their office, with the promise that they will return your records in the future. All too often the health care provider never sees those records again, or only gets them back years later. While the investigators may insist on taking the original records if you do not have a lawyer, they usually will allow your lawyer to provide copies and return the originals to you. This is critical to protect your ability to defend against any criminal charges and to continue running your practice. Finally, you and your staff should not talk to Medicaid fraud investigators. Period. The subpoena only allows the investigators to obtain your records. It does not give them any right to interview you or your staff. This is true when the subpoena is served, and it continues to be true for the entire course of the investigation. To schedule a confidential consultation with an experienced Medicaid fraud lawyer, call John Howley, Esq. at (212) 601-2728. An Early, Proactive Response to a Medicare Fraud Investigation is Your Best Hope for a Good Outcome
The first question a Medicare fraud defense lawyer usually gets from a new client is: Will I go to prison? The answer depends on the nature of the alleged fraud, how early the client retains experienced defense counsel, and how they respond to the fraud investigation. Retaining an experienced Medicare fraud defense lawyer early in an investigation gives you a number of advantages. The government has not yet charged you with a crime or obtained an indictment. Prosecutors and fraud investigators may still be willing to consider alternatives to criminal charges, or may be convinced to limit the charges to less serious offenses without a prison sentence. For example, take the case of the OB/GYN who was accused of stealing more than $8 million from Medicare and Medicaid by billing for treatments provided by an unlicensed and often unsupervised staff. By retaining defense counsel early in the process, this physician was able to enter into a deferred prosecution agreement and avoid criminal prosecution. Under the agreement, the physician will pay back the money at issue and will retain an independent billing monitor for his practice. As long as the physician complies with these conditions for a period of two years, the government agrees not to prosecute him criminally. In another case, a hospital in New York agreed to pay more than $1.5 million in restitution for allegedly billing Medicare and Medicaid for services that were not medically necessary or not properly documented. This case was settled as a purely civil matter with no criminal charges because the hospital retained experienced defense counsel, approached fraud investigators very early in the process, and negotiated a resolution. In contrast, every day the government announces lengthy prison sentences for healthcare providers who are accused of frauds involving much less money. Consider, for example, the chiropractor who was recently sentenced to 44 months (more than three and a half years) in prison and another three years of supervised release for allegedly submitting less than $200,000 in false insurance claims. The outcome in any case, of course, depends on a number of different factors. Prosecutors tend to be more aggressive when the alleged fraud involves risks of harm to the health and safety of patients. Prosecutors tend to be less willing to negotiate when the alleged fraud involves billing for services or products that were never actually provided, or when the alleged fraud is part of a larger criminal scheme. Regardless of the nature of the alleged fraud, however, your best hope for a favorable outcome is retaining an experienced Medicare fraud defense lawyer as soon as you believe that you are under investigation. That is when you and your lawyer have the most options and the best chance of avoiding a personal and professional catastrophe. John Howley, Esq. (212) 601-2728 Former CEO, COO, and CFO Also Ordered to Pay $8.48 Million in Forfeiture
The former Chief Executive Officer, Chief Operating Officer, and Chief Financial Officer of Sacred Heart Hospital in Chicago were sentenced to prison for their roles in a conspiracy to pay kickbacks to doctors in exchange for patient referrals. The three former senior executives were also ordered to pay $8.48 million in forfeiture. The hospital’s former owner and CEO was sentenced to 54 months in prison. The hospital’s former COO was sentenced to 21 months in prison. The hospital’s former CFO was sentenced to 12 months and one day in prison. The three former senior executives and others were found guilty of paying kickbacks and bribes to physicians in return for referrals of Medicare and Medicaid patients. According to the government, the payments were disguised as compensation for consulting work or instructional services. Some kickbacks were paid to doctors in the form of free professional staff and below market lease agreements. Under the anti-kickback statute, providing anything of value in return for referrals of Medicare and Medicaid patients is a crime. It can also result in civil liability under the False Claims Act. If you are under investigation or have been charged with violating the anti-kickback statute or the False Claims Act, you need to consult with an experienced Medicare fraud attorney immediately to protect your rights. How you respond in the early stages of an investigation or prosecution often means the difference between paying civil damages or going to prison. John Howley, Esq. The owner of Biomax Pharmacy Inc. pleaded guilty in federal court to one count of health care fraud.
The pharmacy owner admitted that she submitted almost $1.6 million in fraudulent claims to Medicare for prescription drugs that were not prescribed by physicians, not medically necessary, not purchased by her pharmacy, and not provided to Medicare beneficiaries. Medicare paid 100 percent of the claims. The government accused the pharmacy owner of stealing and paying for unique identifying information of Medicare beneficiaries. The pharmacy owner used that information to submit the fraudulent claims to Medicare. The case was investigated by the FBI and the Office of Inspector General at the U.S. Department of Health and Human Services. Typically in these cases, government agents contact drug wholesalers to determine if the pharmacy’s purchases of pharmaceuticals match the quantity of pharmaceuticals that were billed to Medicare. The government agents also contact physicians and patients to determine whether prescriptions were actually written and filled. If you are under investigation for Medicare fraud, you need to contact an experienced Medicare fraud defense attorney immediately to protect your rights. If your lawyer gets involved during the investigation stage, he can often work with investigators and prosecutors to avoid criminal charges or reduce their severity. John Howley, Esq. (212) 601-2728 
A federal court in Dallas, Texas has awarded two whistleblowers and the U.S. Government more than $40 million against a sub-contractor who was accused of submitting false claims under a government contract.
This is a major victory for the former employees who blew the whistle on the false claims. Under the False Claims Act, they will be entitled to a reward equal to between 15% and 25% of the amount the government actually recovers under the False Claims Act. That could mean a payday of between $6 million and $10 million if the government recovers the full amount of the judgment. The sub-contractor was a distributor of cutting tools to the aerospace industry. It sold cutting tools and tooling kits to aerospace contractors of the United States, including Lockheed Martin Corporation. The whistleblowers alleged that the sub-contractor and its former President fraudulently inflated charges that were submitted to Lockheed Martin and then passed on to the United States government. The judgment was entered against the sub-contractor's former President, who is currently serving a 7½ year prison sentence after pleading guilty to conspiracy to defraud the government. The amount of $40 million was arrived at by taking the government’s actual damages and multiplying by three in accordance with the treble damages provision of the False Claims Act. If you are aware of false claims being submitted to the government -- whether directly or indirectly -- you should consult with an experienced lawyer immediately. To schedule a free and confidential consultation by telephone or in person, call my office today at (212) 601-2728. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. |
