The most common criminal problem health care providers have is insurance fraud. In the past, the federal government primarily focused on federal pay programs such as Medicare and Champus, for the obvious reason that these programs involve federal money. The state authorities would go after health practitioners who defraud state funded programs and private third party payers.
But this all changed in the late 1990’s with the passage of the Health Insurance Portability and Accountability Act (“HIPAA”). Although the HIPAA laws primarily dealt with privacy and allowing employees to transfer their health insurance coverage, the law also created new federal healthcare crimes. Now, fraud against any public or private health care payer is a federal crime. And under the new healthcare crime statute, providing medically unnecessary services constitutes health fraud.
Along with these new healthcare crimes, Congress allocated a large budget to investigate and prosecute healthcare fraud. Each year the Office on the Inspector General puts out a list of potential tarts for healthcare fraud. In recent years this focus has included chiropractors, home healthcare services, and many other areas. In the last year or two, there may have been fewer prosecutions, perhaps because of the allocation of funds to terrorism related activities. However, word out of Main Justice is that health care fraud might get more attention in the next year or two.
How to avoid prosecution:
The biggest problem is inadequate documentation of services. The ultimate defense to an unfounded allegation of insurance fraud is clear and complete SOAP notes.
In addition, because compliance with coding and other technical aspects involved in the delivery of healthcare is beyond the expertise of most providers, having competent help who keeps up-to-date with the various changes in coding and billing procedures is critical.
Needless to say, in today’s environment, a compliance program is essential and is very strong evidence negating fraudulent intent if the Feds come knocking at your door.
Finally, never speak to a government investigator without the presence of counsel. Since many insurance fraud investigations start with reports from Special Investigation Units of the insurance companies, it maybe wise not to speak to them either without a lawyer. Sometimes the SIU units work up cases civilly and then hand over the information for criminal prosecution The insurance companies come in to recoup their money as part of a restitution order, after the practitioner is convicted or pleads out.
I have worked on federal and state health care criminal cases around the country.