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.

Doctor Indicted in $1.3 Million Medicare Fraud Kickback Case Seeks Reinstatement of Medicare Billing Privileges

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

On November 2, 2021, a doctor and his wife who had been indicted for their roles in a $1.3 million Medicare fraud scheme asked a New Jersey court to eliminate a bail condition. The doctor argued that the bail condition impeded his ability to practice medicine. Additionally, the doctor indicated that he was seeking to directly address CMS and the Medical Practice’s ability to bill Medicare and Medicaid.

According to the brief, the defendants argued that the court should not get involved in a licensed physician’s medical practice. They argued that this is the role of the state board of medicine.

Background of Their Case.

Both of the defendants, in this case, were arrested and charged in July 2020 for accepting bribes and kickbacks in exchange for ordering unnecessary genetic tests for patients. Genetic testing has turned out to be the latest area of large-scale health care fraud. According to the Department of Justice (DOJ), the scheme billed Medicare for a total of $1.3 million for unnecessary tests. Both of the defendants had been released on $250,000 unsecured personal recognizance bonds.

Click here to view the press release issued by the DOJ.

Is It Really Possible?

In a brief filed with the court, the doctor and his spouse specifically asked the judge to allow them to submit claims to the federal government for reimbursement and to allow the referral of patients to certain other providers.

The defendants argued that because CMS had already suspended both individuals from submitting claims, the court’s bail conditions were unnecessary. The defendants wanted to be able to approach CMS and attempt to have the medical practice’s ability to continue billing the Medicare and Medicaid Programs reinstated. They contended that certain safeguards could be put into place if the practice were allowed to do so. The brief further argued that to the extent, the court had the concern that they would continue to submit fraudulent billing, the following arguments would prevent that:

1. A proposed third-party management company and a third-party billing company, with appropriate peer review, would take over all management and billing responsibilities;

2. CMS would need to agree to reinstate the medical practice with whatever conditions and restrictions it felt necessary before the practice submitted any additional Medicare or Medicaid claims;

3. It is already a condition of their bail that the defendants commit no further crimes.

These defendants’ brief argued that these safeguards should adequately address any concerns of possible future wrongdoing.

Defendants Say Bail Conditions Are Unreasonable For a Working Medical Practice.

The defendants claim the court’s order makes it practically impossible for the doctor to keep his Pennsylvania medical practice open. They claimed that the doctor treats a sizable Medicare and Medicaid patient population. It also argued that, as a licensed physician, he must continue treating his existing patients. Lastly, the defendants argued that they are hoping to eliminate a condition which they claim forces the medical practice to choose between meeting required standards of patient care or violating the court’s bail order.

What Was The Court’s Decision?

These all seemed like some pretty well-thought-out arguments that the defendants made. What did the court finally decide on this matter? Unfortunately, you will have to tune in to this blog at a later date to find out. Hopefully, the answer will not be lost in chaos.

Click here to view the defendant’s brief in full.

To read about another recent case involving bribery and kickbacks in a healthcare fraud scheme, click here to read one of my prior blogs.

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, program integrity Contractor 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.

Sources:

Pagan, McCord. “Indicted Doc In Kickback Case Seeks CMS Billing Privileges.” Law360. (November 2, 2021). Web.

“Two Scranton area doctors charged in genetic testing bribery and kickback scheme.” PA Homepage. (July 17, 2020). Web.

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., 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.

 

 

 

2022-03-16T13:20:55-04:00March 16th, 2022|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida Surgeon, Device Company Owner Arrested For Paying Bribes, Kickbacks

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

On September 7, 2021, federal prosecutors announced the arrest of a Florida surgeon and owner of device company SpineFrontier Inc on charges of bribing surgeons to use products by paying sham consulting fees.

Accused in an indictment in Boston federal court for violating the federal Anti-Kickback Statute (AKS) and conspiracy to commit money laundering, is the company’s founder and CEO from Florida. Also charged in the indictment were the company’s chief financial officer from Massachusetts and the device company itself. The charges of AKS violations carry a maximum prison sentence of 10 years, while the money laundering conspiracy charge carries a maximum sentence of 20 years.

Click here to view the indictment in full.


Alleged Bribes & Kickbacks.

The allegations are that from March 2013 through December 2018, the defendants entered into consulting contracts in which they allegedly agreed to pay surgeons between $250 and $1,000 per hour for consulting work. However, prosecutors claim that the surgeons paid did little consulting work, and the payments only served as bribes to use their company’s products. During that time, surgeons accepted between $32,625 and $978,000 in improper payments, according to the indictment.

Department of Justice Civil Lawsuit For ‘Sham’ Consulting Fees.

In March 2020, the DOJ filed a civil lawsuit against SpineFrontier, accusing the company of illegally funneling more than $8 million to nearly three dozen surgeons.  The complaint alleges that the defendants created a separate company which was used as an intermediary to funnel illicit payments to surgeons.  Additionally, the indictment lists seven surgeons who have allegedly received bribes totaling $2,747,463 to serve as “sham consultants.”  Read the complaint in full here to learn more.


In Summary.

The Anti-Kickback Statute (AKS) prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, TRICARE, and other federally funded programs.  It is intended to ensure that a physician’s medical judgment is not compromised by improper financial incentives. Conspiring to violate the kickback laws, can bring up to five years in prison while actually violating the kickback laws can result in a sentence of up to 10 years.

“Kickbacks paid to surgeons as sham medical consultants, as alleged in this case, cheat patients and taxpayers alike,” reportedly said Phillip Coyne, Special Agent in Ccharge of the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG). “Working with our law enforcement partners, we will continue to investigate kickback schemes that threaten the integrity of our federal health care system, no matter how those schemes are disguised.”

You can read the DOJ’s press release on the case here.

Physicians Beware of Such Schemes.

Physicians should beware of any contract, plan or offer which offers them money for little or no work at all.  They should also be aware of plans in which they are “given” ownership interest in or made officers in companies and businesses without their having to buy into them. Such schemes are often used by unscrupulous non-physicians to sucker in physicians so that they can be used to perpetrate criminal enterprises. In may cases, the scheme is to defraud Medicare or another health insurer.  Often older or retired physicians seeking to supplement their income fail prey to such schemes.  Often the purpose is just to obtain the physician’s personal identification number or DEA number to order false prescriptions and diagnostic tests or to carry out other fraudulent billing schemes.  Physicians should always remember two old adages: “Nothing is free” and “If it seems to good to be true, it isn’t.”


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, ZPIC 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.

Sources:

Schulte, Fred. “Florida Spine Surgeon and Device Company Owner Charged in Kickback Scheme.” Kaiser Health News. (September 8, 2021). Web.

Pierson, Brendan. “SpineFrontier execs arrested, charged with kickback scheme.” Reuters. (September 7, 2021). Web.

“Florida Spine Surgeon And Device Company Owner Charged in Kickback Scheme.” Health News Florida. (September 8, 2021). Web.


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., 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.

2022-01-25T02:54:39-05:00January 25th, 2022|Categories: Health Facilities Law Blog, In the Know|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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