Letter from the OIG Terminating You from the Medicare Program? What You Need to Do!

Attorney and Author George F. Indest III HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Have you received a letter from the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS) proposing to terminate you or exclude you from the Medicare Program? This is an extremely serious matter. You need to take action right away! For a physician or other health professional, this may be the most serious situation you have ever faced. Yes, even more serious than that jail sentence you just finished serving.

Do not let the time period to appeal or challenge this expire without filing an appeal with the appropriate official. Hire an experienced health law attorney to assist you with this right away. Make sure it gets done on time.

The Proposed Exclusion and Period of Exclusion May Not Be Appropriate in Your Case.

We often see letters from the OIG advising that the recipient healthcare professional is subject to a mandatory exclusion for a minimum of 20 years. This may not be accurate or correct.

Often a much shorter mandatory exclusion period of time is all that the law requires. By presenting the appropriate evidence at an appeal hearing, you can have the exclusion period reduced to a much shorter length of time.

Sometimes the OIG has initiated a mandatory exclusion when only a permissive exclusion (for a much shorter period of time than a mandatory exclusion) is authorized.

We have seen cases where a conviction of a criminal offense is not even one for which a Medicare exclusion is authorized at all. For example, a criminal action not involving theft, fraud or false claims and involving some technical violation of federal or state law, such as an immigration violation.

The only way to obtain relief when an inappropriate exclusion action is initiated by the OIG is to file a timely appeal and to have an appeal hearing before an administrative law judge. However, the appeal must be timely. It must be actually received by the appropriate official and agency by the deadline stated in the OIG’s letter. Not “mailed by,” not “filed by,” but “received by.”

Consequences of Medicare Termination or Exclusion from the Medicare Program Are Severe.

If you are terminated or excluded from the Medicare Program, you are automatically excluded from any state Medicaid Program. In many states, either of these are now grounds for revocation or non-renewal of a medical, nursing, dental, pharmacist, or psychotherapist license.

You will no longer be authorized to bill Medicare or Medicaid nor to order or prescribe an care or treatment paid for by Medicare or Medicaid. This means you will not be able to prescribe medications , order x-rays or lab test, or even order specialty consultations paid for by Medicare or Medicaid.

However, you will also be barred form any federal employment, contracting or subcontracting. You will be placed on the Office of Federal Contract Compliance Programs (OFCCP) Debarred List in the System for Award Management (SAM). This was previously called the “Debarred List” and was previously maintained by the General Services Administration.

SAM contains the electronic roster of debarred companies and individuals excluded from Federal procurement and non-procurement programs throughout the U.S. Government and from receiving Federal contracts or certain subcontracts and from certain types of Federal financial and nonfinancial assistance and benefits. The SAM system combines data from the Central Contractor Registration, Federal Register, Online Representations and Certification Applications, and the Excluded Parties List System.

You will be prohibited from working for or contracting with any company, organization or individual that receives any federal government funds from any source. You will be prohibited from being a shareholder, officer, employee, contractor or subcontractor of any company, organization or individual who receives any government funds from any source. This will prohibit you from almost any work for any health-related jobs, any insurance companies, any schools or colleges, any real estate agencies or brokers who are involved in any federally backed mortgages (VA or FHA), joining the military or public health service, and many, many other jobs.

Credentialing and certification organizations will revoke your credentials. Health insurance companies will terminate you from their provider panels.

Military service, forget it.

Work for the VA, forget it.

Contact an Experienced Health Lawyer to Help Eliminate or at Least Limit the Damage.

You need to immediately contact and retain an experienced health lawyer to fight this on the front end. You must try to reduce or prevent a lengthy exclusion period form being imposed from the very start. It will be too late to attempt to do this later.

You may have valid defenses to the exclusion, but only an experienced health lawyer is going to be able to assist you in finding these and effectively raising these in your defense. Don’t wait until it is too late!

Call The Health Law Firm! We area available to help you on these issues anywhere in the U.S.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.

Copyright © 2024, George F. Indest III, The Health Law Firm. All rights reserved. No part of this work may be reproduced in any form in any medium without the express written permission of the copyright holder. The copyright holder reserves the exclusive right to have his name associated with this work.

Florid Man Strikes Again–Government Asks for Life Sentence for Florida Man in $187M Medicare Fraud Case

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm

On August 12, 2023, federal prosecutors recommended a life sentence for the Florida ex-CEO of a laboratory company who had been found guilty of fraudulently billing Medicare over one hundred million dollars. At the December 2022 trial of the Florida man, the jury convicted the Florida Man of all ten counts against him, including health care fraud, payment of kickbacks, and conspiracy to commit money laundering. He was ordered to pay $187 million in restitution.

I have to say it. They need to lock up that Florida man once and for all! I see his wanton actions all over Florida, reported time and time again. Now that Tim Dorsey is deceased (bless his Florida soul) we don’t have a character like Serge Storms to go around and assassinate (at least literarily) such evildoers as Florida man. Will this mean a big upsurge in crimes committed by Florida man?

Specifics of the Health Care Fraud Committed.

From 2016 to 2019, the ex-CEO operated with co-conspirators out of Palm Beach County to conduct a scheme that spanned the entire country. The Florida Man was the CEO of the laboratory company and the architect of the fraudulent scheme. The ex-CEO oversaw and approved every step of the Medicare fraud process.

The Florida Man recruited and bribed patient brokers, directed the use of deceptive marketing techniques, encouraged the use of telemedicine companies that gave approval without consideration, and took measures to conceal the fraud and make it seem legitimate.

The ex-CEO bribed patient brokers, telemedicine companies, and telemarketing companies to contact Medicare beneficiaries and pressure them into taking medically unnecessary genetic tests through his laboratory company.

I would find it hard to believe that such willful and wanton illegal acts occur in the great state of Florida, except that I get about ten phone calls a day from these people trying to hook me into their phony schemes. Well, after this conviction, maybe I’ll only be getting nine phone calls a day from them (unless they allow Florida man unlimited phone calls for such purposes from his prison cell; and since this is Florida, they may well do that!).

He also instructed co-conspirators to go to nursing homes, bingo halls, adult day care facilities, and poor communities in the Atlanta area to pressure Medicare beneficiaries into taking the genetic test.

A single genetic test billed to Medicare could earn the ex-CEO $9,000. In three years, the lab billed Medicare $463 million, of which $187 million was paid out. The Florida Man personally earned $21 million which he spent on luxury purchases, like a Ferrari.

Effects of the Fraud.

The Florida Man exposed Medicare to a fraud where it paid $187 million for medically unnecessary genetic tests; an exorbitant loss. The scheme also confused patients and confounded doctors.

One victim of the fraud was led to believe that the genetic test would tell her if her cancer would return. She took the test and, since it was negative for the mutated gene, she was wrongly led to believe her cancer would not return. Her cancer did return.

Another victim of the fraud tested positive for a gene mutation that they did not actually have. This made their primary care doctor re-bill the genetic test to Medicare to confirm the results. This test came back negative for the gene mutation. The lab’s test was faulty and gave an inaccurate result.

The federal prosecutors argued that the Florida Man preyed on cancer survivors, elderly patients, and people afraid of getting cancer to steal hundreds of millions of dollars from a social safety net.

Sentencing Recommendation.

The government recommended that the Florida Man’s sentencing be considered in decades, rather than months or years, due to the seriousness of the crime and the man’s unwillingness to accept responsibility or show remorse.

During the trial and in post-conviction pleadings, the ex-CEO continuously placed blame on his lawyers, his employees, and the lab directors. He claimed that the kickbacks and bribes were contracts reviewed and negotiated by lawyers and the genetic tests were appropriate and properly signed by physicians.

The government also recommended that the restitution be increased because, even though only $187 million was paid out by Medicare, the laboratory company billed Medicare $463 million. Prosecutors argued that the restitution should be calculated based on the intended loss of $463 million.

The federal prosecutors claimed that since this is one of the largest genetic testing scheme ever brought to trial, the sentencing must act as a deterrent. The prosecutors argued that a life sentence for the Florida Man would reflect the seriousness of the Medicare fraud and deter others from conducting similar healthcare fraud schemes.

Contact Health Law Attorneys Experienced Health Care Fraud and Anti-Kickback Statute Violations.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, Integrity Contractor audits RAC audits, and False Claims Act cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, and termination from the Medicare or Medicaid Program.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2023 The Health Law Firm. All rights reserved.

Follow These Steps If You Receive an OIG Subpoena from the DOH

Attorney & Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) issues investigative subpoenas through the Office of the Inspector General (OIG). This agency investigates allegations of fraud, waste, and abuse against Medicare, Medicaid, and other federally funded healthcare programs. These subpoenas are very broad, usually requiring the production of thousands of pages of documents. Click here to see a sample of a subpoena duces tecum issued by the OIG.

Immediate Action to Take If the OIG Issues a Subpoena.

Immediately review the subpoena in detail to see what it requests and from whom. A subpoena may be issued to or served on the wrong person or organization. If so, have your attorney contact the issuer and attempt to resolve the matter. Document everything in writing. Whatever you do, do not ignore it.

A review of the requested documents will give you and your experienced healthcare attorney an idea of what type of case is being investigated by the OIG. That is one reason that it is important to immediately retain the services of a healthcare attorney experienced in responding to such subpoenas and dealing with the OIG’s Office and the U.S. Attorney’s Office.

Many Different Scenarios Can Lead to Investigations and Subpoenas.

If someone has filed a False Claims Act (FCA) complaint or lawsuit, also known as a whistleblower or qui tam suit, this may be why the OIG is investigating. Suspicion of violating Medicare and Medicaid participation rules, including the Conditions of Participation or the Conditions for Payment (Federal Regulations), can also lead to investigations and subpoenas. If you have committed violations of program requirements such that the government can seek Civil Monetary Penalties, this may give rise to such investigation. If you are suspected of Medicare fraud, including upcoding or billing for medically unnecessary supplies or services, this may lead to an investigation. A patient complaint about not receiving services or equipment billed to Medicare is a surefire way to investigate. Regardless, the matter is serious, so you should retain experienced health care counsel.

Follow These Helpful Steps to Ease the Process:

1. Immediately review the subpoena to ensure you know the expected delivery date of the requested documents. Be sure to respond in writing via a reliable courier or another method of tracking your sending of the documents and their receipt.

2. Immediately retain the services of an experienced healthcare attorney to start dealing with the OIG or the U.S. Attorney’s Office involved in the case.

3. Immediately start assembling the requested documents in the subpoena so they may be reviewed by your attorney before they are organized, labeled, numbered, and produced. This will take longer than you think.

4. Request an extension of time to respond, if needed, before the due date for the production of the documents. These are routinely given, especially for large document productions. Document the extension of time in writing.

5. Completely read the instructions given in the subpoena regarding how documents produced are to be organized, page-numbered, labeled, copied, and delivered. It is essential to produce them this way.

6. If documents are archived, in storage, require the reinstallation of old software to reproduce, or otherwise will take a long time to produce, you may request a “rolling production.” This is an agreement to produce the documents as you obtain them.

7. In reviewing the documents, attempt to determine precisely what the OIG and U.S. Attorney may be investigating. This will afford you time to begin preparation for your defense and will allow you to request a modification of what it is necessary to produce in many instances.

8. It is preferable for you not to personally communicate with OIG special agents, FBI agents, other investigators, or attorneys working for the OIG or U.S. Attorney’s Office. Anything you say to them, orally or in writing, can be used against you in the case. Also, any incorrect or false information you provide, orally or in writing, can result in a felony charge under 18 U.S.C. Sect. 1001. Have your attorney do all communication.

9. Remember, you do not have to produce any documents in your custody. Likewise, you do not have to create documents to produce.

10. Never alter, destroy, or create documents for which the subpoena is issued after you have received the subpoena. Consider all documents to be “frozen” in time. Also, immediately notify whoever is in charge of your document retention or document destruction program (if you have one) to ensure no further documents are destroyed or deleted.

11. If you do not have a document destruction program for obsolete documents as you read this, you need to create one (subject to number 10 immediately above). Make sure it addresses e-mails, electronically stored documents, and paper copies. Do not keep any documents for longer than you are required to keep them by law (including Federal Regulations).

12. Provide an explanation for any documents or categories of records that you should have but were destroyed by natural disasters, fires, etc. Include documentation (fire department, police report, insurance company appraisal, etc.) that shows this. Do not ever lie or exaggerate it.

For additional information, read one of our recent blogs on preparing for a healthcare audit request.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

Florid Man Strikes Again: Government Asks for Life Sentence for Florida Man in $187M Medicare Fraud Case

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm

On August 12, 2023, federal prosecutors recommended a life sentence for the Florida ex-CEO of a laboratory company who had been found guilty of fraudulently billing Medicare over one hundred million dollars. At the December 2022 trial of the Florida man, the jury convicted the Florida Man of all ten counts against him, including health care fraud, payment of kickbacks, and conspiracy to commit money laundering. He was ordered to pay $187 million in restitution.

I have to say it. They need to lock up that Florida man once and for all! I see his wanton actions all over Florida, reported time and time again. Now that Tim Dorsey is deceased (bless his Florida soul) we don’t have a character like Serge Storms to go around and assassinate (at least literarily) such evildoers as Florida man. Will this mean a big upsurge in crimes committed by Florida man?

Specifics of the Health Care Fraud Committed.

From 2016 to 2019, the ex-CEO operated with co-conspirators out of Palm Beach County to conduct a scheme that spanned the entire country. The Florida Man was the CEO of the laboratory company and the architect of the fraudulent scheme. The ex-CEO oversaw and approved every step of the Medicare fraud process.

The Florida Man recruited and bribed patient brokers, directed the use of deceptive marketing techniques, encouraged the use of telemedicine companies that gave approval without consideration, and took measures to conceal the fraud and make it seem legitimate.

The ex-CEO bribed patient brokers, telemedicine companies, and telemarketing companies to contact Medicare beneficiaries and pressure them into taking medically unnecessary genetic tests through his laboratory company.

I would find it hard to believe that such willful and wanton illegal acts occur in the great state of Florida, except that I get about ten phone calls a day from these people trying to hook me into their phony schemes. Well, after this conviction, maybe I’ll only be getting nine phone calls a day from them (unless they allow Florida man unlimited phone calls for such purposes from his prison cell; and since this is Florida, they may well do that!).

He also instructed co-conspirators to go to nursing homes, bingo halls, adult day care facilities, and poor communities in the Atlanta area to pressure Medicare beneficiaries into taking the genetic test.

A single genetic test billed to Medicare could earn the ex-CEO $9,000. In three years, the lab billed Medicare $463 million, of which $187 million was paid out. The Florida Man personally earned $21 million which he spent on luxury purchases, like a Ferrari.

Effects of the Fraud.

The Florida Man exposed Medicare to a fraud where it paid $187 million for medically unnecessary genetic tests; an exorbitant loss. The scheme also confused patients and confounded doctors.

One victim of the fraud was led to believe that the genetic test would tell her if her cancer would return. She took the test and, since it was negative for the mutated gene, she was wrongly led to believe her cancer would not return. Her cancer did return.

Another victim of the fraud tested positive for a gene mutation that they did not actually have. This made their primary care doctor re-bill the genetic test to Medicare to confirm the results. This test came back negative for the gene mutation. The lab’s test was faulty and gave an inaccurate result.

The federal prosecutors argued that the Florida Man preyed on cancer survivors, elderly patients, and people afraid of getting cancer to steal hundreds of millions of dollars from a social safety net.

Sentencing Recommendation.

The government recommended that the Florida Man’s sentencing be considered in decades, rather than months or years, due to the seriousness of the crime and the man’s unwillingness to accept responsibility or show remorse.

During the trial and in post-conviction pleadings, the ex-CEO continuously placed blame on his lawyers, his employees, and the lab directors. He claimed that the kickbacks and bribes were contracts reviewed and negotiated by lawyers and the genetic tests were appropriate and properly signed by physicians.

The government also recommended that the restitution be increased because, even though only $187 million was paid out by Medicare, the laboratory company billed Medicare $463 million. Prosecutors argued that the restitution should be calculated based on the intended loss of $463 million.

The federal prosecutors claimed that since this is one of the largest genetic testing scheme ever brought to trial, the sentencing must act as a deterrent. The prosecutors argued that a life sentence for the Florida Man would reflect the seriousness of the Medicare fraud and deter others from conducting similar healthcare fraud schemes.

Contact Health Law Attorneys Experienced Health Care Fraud and Anti-Kickback Statute Violations.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, Integrity Contractor audits RAC audits, and False Claims Act cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, and termination from the Medicare or Medicaid Program.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2023 The Health Law Firm. All rights reserved.

Steps to Take If You Receive an OIG Subpoena from the U.S. Department of Health and Human Services

Attorney and Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) issues investigative subpoenas through the Office of the Inspector General (OIG). This agency investigates allegations of fraud, waste, and abuse of Medicare, Medicaid, and other federally funded healthcare programs. These subpoenas are very broad, usually requiring the production of thousands of pages of documents. Click here to see a sample of a subpoena duces tecum issued by the OIG. 

Immediate Action to Take If You Receive an OIG or DHHS Subpoena.

Immediately review the subpoena in detail to see what it requests and from whom. A subpoena may be issued to or served on the wrong person or organization. If so, have your attorney contact the issuer and attempt to resolve the matter. Document everything in writing.

However, the most important thing you can do is to contact an experienced healthcare attorney. There is something going on that has led to an investigation so you need to try to get to the bottom of it. A review of the documents being subpoenaed will give you and your experienced healthcare attorney an idea of what type of case is being investigated by the OIG. Additionally, your attorney can contact and begin dealing with the OIG’s Office and the U.S. Attorney’s Office if it is involved.

Many Different Circumstances Can Lead to Investigation and Subpoena.

If someone has filed a False Claims Act (FCA) complaint or suit, also known as a whistleblower or qui tam suit, this may be why the OIG is investigating. A patient complaint can cause an investigation to be opened. A suspicion of violating the rules for Medicare and Medicaid participation, including the Conditions of Participation or the Conditions for Payment (Federal Regulations). For example, if you have committed violations of program requirements such that the government can seek Civil Monetary Penalties, this may give rise to such an investigation. If you are suspected of Medicare fraud, including upcoding or billing for medically unnecessary supplies or services, this may lead to such an investigation. The matter is serious, so you should retain experienced healthcare counsel.

Follow These Steps to Enable an Organized Response:

1. Immediately review the subpoena to ensure you know the expected delivery date of the requested documents and how they will be delivered.

2. Immediately retain the services of an experienced healthcare attorney to start dealing with the OIG or any other government office involved.

3. Immediately start assembling the documents requested by the subpoena so they may be reviewed by your attorney before they are reorganized, labeled, page numbered, and produced. This will take longer than you think.

4. Request an extension of time to respond, if needed, before the due date for the production of the documents. These are routinely given, especially for large document productions. Document the granting of the extension of time in writing.

5. Completely read the instructions given in the subpoena regarding how documents produced are to be organized, page-numbered, labeled, copied, and delivered. It is essential to produce them this way to the address requested.

6. If documents are archived, in storage, require the re-reinstallation of old software to reproduce, or otherwise will take a long time to produce, request a “rolling production.” This is an agreement to produce the documents as you obtain them.

7. In reviewing the documents and the subpoena, attempt to determine exactly what the OIG and agency may be investigating. This will afford you time to begin preparation for your defense.

8. Do not personally communicate with OIG special agents, other investigators, or attorneys working for the OIG or U.S. Attorney’s Office. Anything you say to them, orally or in writing, can be used against you in their case. Any incorrect or false information you provide, orally or in writing, can result in a felony charge under 18 U.S.C. Sect. 1001. Have your attorney do all communicating.

9. Remember, you do not have to produce any documents in your custody. Likewise, you do not have to create documents to produce.

10. Never alter, destroy, delete or create documents for which the subpoena is issued after you have received the subpoena. Consider all documents to be “frozen.” Also, immediately notify whoever is in charge of your document retention or document destruction program (if you have one) to ensure no further documents are destroyed or deleted.

11. If you do not have a document destruction program for obsolete documents in place as you read this blog, then you need to create one (subject to number 10 immediately above). Make sure it addresses e-mails, text messages, messages over social media (such as Instagram and Whats App), electronically stored documents, and any paper copies. Do not keep any documents for longer than you are required to keep them by law (including federal regulations).

12. Provide an explanation for any documents or categories of records that you should have but were destroyed by natural disasters, fires, etc. Include documentation (fire department, police report, insurance company appraisal, etc.) that shows this. Do not ever lie or exaggerate.

For additional information, click here to read one of the recent blogs on preparing for a healthcare audit request.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm, call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.

KeyWords: Healthcare fraud legal defense representation, healthcare fraud defense lawyer, Office of Inspector General (OIG) subpoena lawyer, Centers for Medicare & Medicaid Services (CMS) subpoena lawyer, Centers for Medicare & Medicaid Services (CMS) audit defense attorney, Office of Inspector General (OIG) investigation defense attorney, legal representation for Centers for Medicare & Medicaid Services (CMS) audit, legal representation for Office of Inspector General (OIG) audit, Office of Inspector General (OIG) Medicare exclusion attorney, Medicare audit defense legal counsel, Medicare overpayment demand attorney, Office of Inspector General (OIG) Medicare exclusion legal defense counsel, attorney legal representation for OIG notice of intent to exclude, legal representation for Medicare and Medicaid audits, health care fraud defense attorney, legal representation for health care fraud, reviews for The Health Law Firm, The Health Law Firm attorney reviews, healthcare fraud legal representation

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

 

HHS OIG Release of New “General Compliance Program Guidance” Provides Valuable Insight on Prevention of Health Care Fraud, Waste, and Abuse

By Michelle E. Missigman, J.D.
On November 6, 2023, the U.S. Department of Health and Human Services (HHS), Office of the Inspector General (OIG), released 91 pages of “General Compliance Program Guidance” (GCPG) on its website.  This is the first compliance program guidance the OIG has released since 2008.  The GCPG provides general compliance guidance, tools, and references for use by federal health care program providers.
This new guidance brings together many resources and links, making it a valuable and easy-to-read tool to keep on hand for any professional working within the healthcare industry.
The GCPG covers the following topics:
I.  Introduction
The GCPG  provides a thorough introduction to the OIG’s history and commitment to preventing health care fraud an abuse.  It provides a roadmap for how the OIG intends to modernize and improve its publicly available resources.  The OIG’s goal is to continue producing these resources, deliver information to the public in a user-friendly approach using modern technology, and produce informative and useful resources to help advance the health care industry’s compliance efforts in preventing fraud, waste, and abuse.
II.  Health Care Fraud Enforcement
The GCPG provides a broad overview of federal healthcare fraud enforcement standards and laws,  such as: the anti-kickback statute, physician self-referral law, false claims act, civil monetary penalties, exclusions from federal programs, criminal health care fraud statute, HIPAA privacy and security rules.
III.  Seven Elements of a Successful Compliance Program
The largest section of the GCPG reinforces and provides a thorough explanation of the seven elements of an effective compliance program:
1.  Written Policies and Procedures
2.  Compliance Leadership and Oversight
3.  Training and Education
4.  Effective Lines of Communication with the Compliance Officer and Disclosure Programs
5.  Enforcing Standards: Consequences and Incentives
6.  Risk Assessment, Auditing, and Monitoring
7.Responding to Detected Offenses and Developing Corrective Action Initiatives
Much of the guidance in this section reflects the OIG’s prior guidance in monitoring Corporate Integrity Agreements (CIAs).  Check out this article on CIAs.
IV.  Compliance Program Adaptations for Small and Large Entities
Maintaining an effective compliance program can be burdensome for smaller entities that have limited resources.  The OIG acknowledges this and provides guidance on how smaller entities can still implement a compliance program that meets the above seven elements of a compliance program.
For larger entities with more resources, the GCPG goes into detail about the compliance officer’s role within the organization.  The compliance officer should have the authority to oversee and direct the organization’s compliance function and lead the compliance department. The organization’s board of directors and compliance office should meet periodically to evaluate the compliance department and determine whether it meets the needs of the organization.
V.  Other Compliance Considerations
The GCPG considers other areas to assist entities in developing policies and procedures to reduce or eliminate potential fraud and abuse risks.  Some other areas they have considered are: quality and patient safety, new entrants in the health care industry (e.g. technology companies, new investors, and non-traditional services in health care such as social services, food delivery, and care coordination services), financial incentives, and financial arrangements.
VI.  Additional OIG Resources and Tools

Lastly, the CPCG lists links all of the resources available on the OIG website, including previous compliance program guidance, advisory opinions, special fraud alerts, safe harbor regulations, compliance toolkits, OIG reports and publications, corporate integrity agreements, self-disclosure information and access to OIG’s hotline. The OIG has even implemented a FAQ process to provide informal feedback to the health care community.
Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.
The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).
To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: Michelle E. Missigman, is a health attorney practicing with The Health Law Firm.  The firm has a national practice.  Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.
Sources:
“Criteria for Implementing Section 1128(b)(7) Exclusion Authority.” U.S. Department of Health and Human Services Office of Inspector General. (2016). Web.
Dani Kass. “HHS Watchdog Lays Out New Grounds For Exclusion List.” Law360. (2016). Web.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2024 The Health Law Firm. All rights reserved.

Steps to Take If You Receive an OIG Subpoena from the DOH

Attorney & Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) issues investigative subpoenas through the Office of the Inspector General (OIG). This agency investigates allegations of fraud, waste, and abuse against Medicare, Medicaid, and other federally funded healthcare programs. These subpoenas are very broad, usually requiring the production of thousands of pages of documents. Click here to see a sample of a subpoena duces tecum issued by the OIG.

Immediate Action to Take If the OIG Issues a Subpoena.

Immediately review the subpoena in detail to see what it requests and from whom. A subpoena may be issued to or served on the wrong person or organization. If so, have your attorney contact the issuer and attempt to resolve the matter. Document everything in writing. Whatever you do, do not ignore it.

A review of the requested documents will give you and your experienced healthcare attorney an idea of what type of case is being investigated by the OIG. That is one reason that it is important to immediately retain the services of a healthcare attorney experienced in responding to such subpoenas and dealing with the OIG’s Office and the U.S. Attorney’s Office.

Many Different Scenarios Can Lead to Investigations and Subpoenas.

If someone has filed a False Claims Act (FCA) complaint or lawsuit, also known as a whistleblower or qui tam suit, this may be why the OIG is investigating. Suspicion of violating Medicare and Medicaid participation rules, including the Conditions of Participation or the Conditions for Payment (Federal Regulations), can also lead to investigations and subpoenas. If you have committed violations of program requirements such that the government can seek Civil Monetary Penalties, this may give rise to such investigation. If you are suspected of Medicare fraud, including upcoding or billing for medically unnecessary supplies or services, this may lead to an investigation. A patient complaint about not receiving services or equipment billed to Medicare is a surefire way to investigate. Regardless, the matter is serious, so you should retain experienced health care counsel.

Follow These Helpful Steps to Ease the Process:

1. Immediately review the subpoena to ensure you know the expected delivery date of the requested documents. Be sure to respond in writing via a reliable courier or another method of tracking your sending of the documents and their receipt.

2. Immediately retain the services of an experienced healthcare attorney to start dealing with the OIG or the U.S. Attorney’s Office involved in the case.

3. Immediately start assembling the requested documents in the subpoena so they may be reviewed by your attorney before they are organized, labeled, numbered, and produced. This will take longer than you think.

4. Request an extension of time to respond, if needed, before the due date for the production of the documents. These are routinely given, especially for large document productions. Document the extension of time in writing.

5. Completely read the instructions given in the subpoena regarding how documents produced are to be organized, page-numbered, labeled, copied, and delivered. It is essential to produce them this way.

6. If documents are archived, in storage, require the reinstallation of old software to reproduce, or otherwise will take a long time to produce, you may request a “rolling production.” This is an agreement to produce the documents as you obtain them.

7. In reviewing the documents, attempt to determine precisely what the OIG and U.S. Attorney may be investigating. This will afford you time to begin preparation for your defense and will allow you to request a modification of what it is necessary to produce in many instances.

8. It is preferable for you not to personally communicate with OIG special agents, FBI agents, other investigators, or attorneys working for the OIG or U.S. Attorney’s Office. Anything you say to them, orally or in writing, can be used against you in the case. Also, any incorrect or false information you provide, orally or in writing, can result in a felony charge under 18 U.S.C. Sect. 1001. Have your attorney do all communication.

9. Remember, you do not have to produce any documents in your custody. Likewise, you do not have to create documents to produce.

10. Never alter, destroy, or create documents for which the subpoena is issued after you have received the subpoena. Consider all documents to be “frozen” in time. Also, immediately notify whoever is in charge of your document retention or document destruction program (if you have one) to ensure no further documents are destroyed or deleted.

11. If you do not have a document destruction program for obsolete documents as you read this, you need to create one (subject to number 10 immediately above). Make sure it addresses e-mails, electronically stored documents, and paper copies. Do not keep any documents for longer than you are required to keep them by law (including Federal Regulations).

12. Provide an explanation for any documents or categories of records that you should have but were destroyed by natural disasters, fires, etc. Include documentation (fire department, police report, insurance company appraisal, etc.) that shows this. Do not ever lie or exaggerate it.

For additional information, read one of our recent blogs on preparing for a healthcare audit request.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

Florid Man Strikes Again–Government Asks for Life Sentence for Florida Man in $187M Medicare Fraud Case

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm

On August 12, 2023, federal prosecutors recommended a life sentence for the Florida ex-CEO of a laboratory company who had been found guilty of fraudulently billing Medicare over one hundred million dollars. At the December 2022 trial of the Florida man, the jury convicted the Florida Man of all ten counts against him, including health care fraud, payment of kickbacks, and conspiracy to commit money laundering. He was ordered to pay $187 million in restitution.

I have to say it. They need to lock up that Florida man once and for all! I see his wanton actions all over Florida, reported time and time again. Now that Tim Dorsey is deceased (bless his Florida soul) we don’t have a character like Serge Storms to go around and assassinate (at least literarily) such evildoers as Florida man. Will this mean a big upsurge in crimes committed by Florida man?

Specifics of the Health Care Fraud Committed.

From 2016 to 2019, the ex-CEO operated with co-conspirators out of Palm Beach County to conduct a scheme that spanned the entire country. The Florida Man was the CEO of the laboratory company and the architect of the fraudulent scheme. The ex-CEO oversaw and approved every step of the Medicare fraud process.

The Florida Man recruited and bribed patient brokers, directed the use of deceptive marketing techniques, encouraged the use of telemedicine companies that gave approval without consideration, and took measures to conceal the fraud and make it seem legitimate.

The ex-CEO bribed patient brokers, telemedicine companies, and telemarketing companies to contact Medicare beneficiaries and pressure them into taking medically unnecessary genetic tests through his laboratory company.

I would find it hard to believe that such willful and wanton illegal acts occur in the great state of Florida, except that I get about ten phone calls a day from these people trying to hook me into their phony schemes. Well, after this conviction, maybe I’ll only be getting nine phone calls a day from them (unless they allow Florida man unlimited phone calls for such purposes from his prison cell; and since this is Florida, they may well do that!).

He also instructed co-conspirators to go to nursing homes, bingo halls, adult day care facilities, and poor communities in the Atlanta area to pressure Medicare beneficiaries into taking the genetic test.

A single genetic test billed to Medicare could earn the ex-CEO $9,000. In three years, the lab billed Medicare $463 million, of which $187 million was paid out. The Florida Man personally earned $21 million which he spent on luxury purchases, like a Ferrari.

Effects of the Fraud.

The Florida Man exposed Medicare to a fraud where it paid $187 million for medically unnecessary genetic tests; an exorbitant loss. The scheme also confused patients and confounded doctors.

One victim of the fraud was led to believe that the genetic test would tell her if her cancer would return. She took the test and, since it was negative for the mutated gene, she was wrongly led to believe her cancer would not return. Her cancer did return.

Another victim of the fraud tested positive for a gene mutation that they did not actually have. This made their primary care doctor re-bill the genetic test to Medicare to confirm the results. This test came back negative for the gene mutation. The lab’s test was faulty and gave an inaccurate result.

The federal prosecutors argued that the Florida Man preyed on cancer survivors, elderly patients, and people afraid of getting cancer to steal hundreds of millions of dollars from a social safety net.

Sentencing Recommendation.

The government recommended that the Florida Man’s sentencing be considered in decades, rather than months or years, due to the seriousness of the crime and the man’s unwillingness to accept responsibility or show remorse.

During the trial and in post-conviction pleadings, the ex-CEO continuously placed blame on his lawyers, his employees, and the lab directors. He claimed that the kickbacks and bribes were contracts reviewed and negotiated by lawyers and the genetic tests were appropriate and properly signed by physicians.

The government also recommended that the restitution be increased because, even though only $187 million was paid out by Medicare, the laboratory company billed Medicare $463 million. Prosecutors argued that the restitution should be calculated based on the intended loss of $463 million.

The federal prosecutors claimed that since this is one of the largest genetic testing scheme ever brought to trial, the sentencing must act as a deterrent. The prosecutors argued that a life sentence for the Florida Man would reflect the seriousness of the Medicare fraud and deter others from conducting similar healthcare fraud schemes.

Contact Health Law Attorneys Experienced Health Care Fraud and Anti-Kickback Statute Violations.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, Integrity Contractor audits RAC audits, and False Claims Act cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, and termination from the Medicare or Medicaid Program.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2023 The Health Law Firm. All rights reserved.

Steps to Take If You Receive an OIG Subpoena from the U.S. Department of Health and Human Services

Attorney & Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) issues investigative subpoenas through the Office of the Inspector General (OIG). This agency investigates allegations of fraud, waste, and abuse against Medicare, Medicaid, and other federally funded healthcare programs. These subpoenas are very broad, usually requiring the production of thousands of pages of documents. Click here to see a sample of a subpoena duces tecum issued by the OIG.

Immediate Action to Take If the OIG Issues a Subpoena.

Immediately review the subpoena in detail to see what it requests and from whom. A subpoena may be issued to or served on the wrong person or organization. If so, have your attorney contact the issuer and attempt to resolve the matter. Document everything in writing. Whatever you do, do not ignore it.

A review of the requested documents will give you and your experienced healthcare attorney an idea of what type of case is being investigated by the OIG. That is one reason that it is important to immediately retain the services of a healthcare attorney experienced in responding to such subpoenas and dealing with the OIG’s Office and the U.S. Attorney’s Office.

Many Different Scenarios Can Lead to Investigations and Subpoenas.

If someone has filed a False Claims Act (FCA) complaint or lawsuit, also known as a whistleblower or qui tam suit, this may be why the OIG is investigating. Suspicion of violating Medicare and Medicaid participation rules, including the Conditions of Participation or the Conditions for Payment (Federal Regulations), can also lead to investigations and subpoenas. If you have committed violations of program requirements such that the government can seek Civil Monetary Penalties, this may give rise to such investigation. If you are suspected of Medicare fraud, including upcoding or billing for medically unnecessary supplies or services, this may lead to an investigation. A patient complaint about not receiving services or equipment billed to Medicare is a surefire way to investigate. Regardless, the matter is serious, so you should retain experienced health care counsel.

Follow These Helpful Steps to Ease the Process:

1. Immediately review the subpoena to ensure you know the expected delivery date of the requested documents. Be sure to respond in writing via a reliable courier or another method of tracking your sending of the documents and their receipt.

2. Immediately retain the services of an experienced healthcare attorney to start dealing with the OIG or the U.S. Attorney’s Office involved in the case.

3. Immediately start assembling the requested documents in the subpoena so they may be reviewed by your attorney before they are organized, labeled, numbered, and produced. This will take longer than you think.

4. Request an extension of time to respond, if needed, before the due date for the production of the documents. These are routinely given, especially for large document productions. Document the extension of time in writing.

5. Completely read the instructions given in the subpoena regarding how documents produced are to be organized, page-numbered, labeled, copied, and delivered. It is essential to produce them this way.

6. If documents are archived, in storage, require the reinstallation of old software to reproduce, or otherwise will take a long time to produce, you may request a “rolling production.” This is an agreement to produce the documents as you obtain them.

7. In reviewing the documents, attempt to determine precisely what the OIG and U.S. Attorney may be investigating. This will afford you time to begin preparation for your defense and will allow you to request a modification of what it is necessary to produce in many instances.

8. It is preferable for you not to personally communicate with OIG special agents, FBI agents, other investigators, or attorneys working for the OIG or U.S. Attorney’s Office. Anything you say to them, orally or in writing, can be used against you in the case. Also, any incorrect or false information you provide, orally or in writing, can result in a felony charge under 18 U.S.C. Sect. 1001. Have your attorney do all communication.

9. Remember, you do not have to produce any documents in your custody. Likewise, you do not have to create documents to produce.

10. Never alter, destroy, or create documents for which the subpoena is issued after you have received the subpoena. Consider all documents to be “frozen” in time. Also, immediately notify whoever is in charge of your document retention or document destruction program (if you have one) to ensure no further documents are destroyed or deleted.

11. If you do not have a document destruction program for obsolete documents as you read this, you need to create one (subject to number 10 immediately above). Make sure it addresses e-mails, electronically stored documents, and paper copies. Do not keep any documents for longer than you are required to keep them by law (including Federal Regulations).

12. Provide an explanation for any documents or categories of records that you should have but were destroyed by natural disasters, fires, etc. Include documentation (fire department, police report, insurance company appraisal, etc.) that shows this. Do not ever lie or exaggerate it.

For additional information, read one of our recent blogs on preparing for a healthcare audit request.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

What Payers Are Considered to Be “Federal Payers” Under the Federal Anti-kickback Statute?

Author Headshot standing with arms crossed in dark suitBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The federal Anti-Kickback Statute prohibits remuneration in relation to the provision of a “good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program.”  42 U.S.C. § 1320a-7b(b).  The Anti-Kickback Statute goes on to define “federal health care program” as any government-funded plan or program that provides health benefits or any state health care program.  42 U.S.C. § 1320a-7b(f).  But exactly which payers are considered Federal health care programs?  There is a lot of confusion on this issue.  Hopefully, this will clarify it.
The List of Federal Payers for To Which the Anti-Kickback Statute Applies.
The list of federal and state programs to which the Anti-Kickback Statute applies is a long one.  The state ones are on there primarily because they receive some level of federal funding.  This list includes many programs, some of which you may have never heard or guessed.  Here are the ones of which I am aware:
The Medicare Program (along with managed care plans that may contract with the Medicare Program, a number of private insurers);
The Medicaid Program (along with managed care plans that may contract with the various state Medicaid Programs-the private insurers which do this);
State Children’s Health Insurance Program (CHIP or SCHIP);
TRICARE and Tricare for Life;
CHAMPVA;
Veterans Administration (VA) Services;
Indian Health Services (IHS);
Federal Health Program for Alaska Natives;
Railroad Employees National Health and Welfare Plan (RENHWP);
Federal Employees’ Compensation Act (FECA) program;
The Longshore and Harbor Workers’ Compensation Act (LHWCA);
The Federal Black Lung Benefits Act program (FBLBA);
The Energy Employees Occupational Illness Compensation Program Act (EEOIC) (also known as the “Beryllium Exposure Compensation Act”) program;
Refugee Medical Assistance (RMA) program;
Federal Reimbursement of Emergency Health Services to Undocumented Aliens program;  and
The Ryan White HIV/AIDS Program.
These programs cover a very wide swath of all health services offered in the United States.  Therefore, nearly every medical item, facility, service, or equipment is potentially payable by a federal health care program.
Note, however, the Federal Employee Health Benefit (FEHB) Program, the program that provides insurance and benefits to federal civilian employees, is not included in the above list of payers, by statutory exemption.  42 U.S.C. § 1320a-7b(f); 5 U.S.C. Ch. 89.
The Public Health Service (PHS) and its programs may also be excluded from the application.  See 42 U.S.C. § 1320a-7b(b)(3)(D).
Cross-over with the False Claims Act.
Compliance with the Anti-Kickback Statute is a Condition of Payment for federal health care programs.  Every claim that is submitted for payment contains an attestation that the provider providing the goods or services for which payment is sought has complied with the federal Conditions of Payment.”  Therefore, if there has been a kickback in relation to such goods or services for which a claim is made, the False Claims Act will also apply.
Contact Health Law Attorneys Experienced with Health Care Fraud,  False Claims Act Violations, and Anti-Kickback Statute Violations.
The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, Integrity Contractor audits and RAC audits, False Claims Act cases, and whistleblower/qui tam cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.
To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Attorney Positions with The Health Law Firm.  The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.
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