As a medical provider who bills through Medicare, you are subject to burdensome regulations that, when not precisely followed, put you are risk of a Medicare audit of fraud investigation. While almost every aspect of a provider’s practice can incur federal scrutiny, those providers who perform amino testing appear to be at the center of the federal government’s focus. At Oberheiden, P.C., our federal healthcare fraud defense attorneys are available to immediately assist providers who find themselves at the center of an amino Medicare fraud investigation. With centuries of experience both prosecuting and defending Medicare fraud cases, Oberheiden, P.C., is nationally known as a preeminent healthcare fraud defense firm.
What Is Amino Testing Medicare Fraud?
Amino testing measures the levels of a patient’s amino acids through a blood test. Typically, amino testing is performed on infants who are suspected of having an issue metabolizing certain amino acids. However, amino testing and other types of genetic testing are also used among adult patients. While amino testing can be important to diagnose certain conditions, the federal government has expressed concern about the frequency with which these tests are ordered. As a result, the U.S Department of Justice, in conjunction with the Health and Human Services Office of Inspector General and the Federal Bureau of Investigation, has initiated several Medicare fraud investigations related to amino testing.
As a general rule, Medicare covers the cost of diagnostic testing. However, Medicare only reimburses providers for testing that is medically necessary. Of course, the federal government gets to determine which tests are “medically necessary.” This can put providers in the unenviable position of essentially guessing whether the government will agree with their assessment of the propriety of a test. If a provider orders a test that is deemed medically unnecessary and they submit a bill to Medicare, it may give rise to a Medicare fraud investigation.
Amino testing also raises the government’s concern surrounding improper referral relationships designed to identify possible patients for testing. In recent years, the federal government has brought several cases under the Stark Law and the Anti-Kickback Statute based on improper referral relationships between providers, labs, and recruiters whose role is to identify and bring in patients for testing. In fact, the HHS-OIG recently announced its efforts to target genetic testing fraud schemes nationwide. Amino testing is among the tests being targeted. According to the HHS-OIG, it has already brought cases against 35 individuals, alleging a total of nearly $2.1 in fraudulent billing.
Dr. Nick Oberheiden
John W. Sellers
Former Senior Trial Attorney
U.S. Department of Justice
Joanne Fine DeLena
Former Assistant U.S. Attorney
Lynette S. Byrd
Former Assistant U.S. Attorney
Former U.S. Attorney
Aaron L. Wiley
Former Federal Prosecutor
Former Special Agent (OIG)
Former Supervisory Special Agent (FBI)
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Former Supervisory Special Agent (FBI)
Dennis A. Wichern
Former Special Agent-in-Charge (DEA)
Penalties for Committing Medicare Fraud Related to Amino Testing
Medicare fraud can result in civil or criminal liability, depending on the nature of the violation. For example, in 2020, federal prosecutors obtained criminal convictions against 440 defendants for various types of healthcare fraud. Also in 2020, the Department of Justice opened more than 1,075 new civil healthcare fraud cases. As a result, the HHS-OIG excluded more than 2,100 providers from participating in Medicare and other federally funded programs.
Whether a Medicare violation results in civil or criminal liability depends on the specific allegations. For example, submitting improper bills to Medicare for Amino testing is potentially a violation of the False Claims Act. Liability under the False Claims Act can be civil or criminal, depending on whether the provider had the intent to defraud the government. If the government pursues civil charges, the government only needs to prove the provider knowingly submitted the claim that contained the errors. However, if the government determines a provider acted with the intent to defraud, it can bring criminal charges under 18 U.S.C. 1347, the general healthcare fraud statute. A violation of 18 U.S.C. 1347 carried the possibility of fines up to $250,000 (for individuals) or $500,000 (for organizations) and up to 10 years of federal imprisonment.
The federal government is also keeping a close eye on providers who engage in improper referral relationships, as defined by the Anti-Kickback Statute or the Stark Law. The Anti-Kickback Statute is a criminal law statute that prohibits the payment or receipt of remuneration for any referral when Medicare is responsible for payment of the service. The Anti-Kickback Statute provides for a punishment of up to five years in federal prison and a fine of up to $25,000 per violation. Because the Anti-Kickback Statute is a criminal law, prosecutors must prove a provider acted knowingly and willfully.
The Stark Law precludes physician self-referrals. More specifically, a Stark Law violation occurs when a physician refers a patient to another prover in which the referring physician has an economic interest. The Stark law imposes civil liability of up to $15,000 per violation, in addition to an assessment of up to three times the amount of the claim.
What to Do if Your Practice Is Under Investigation for Amino Medicare Fraud
If you or your practice is the subject of a federal investigation into amino testing Medicare fraud, it is important that you carefully consider your every move. While it would be nice to think that honest intentions alone are a complete defense, that is not the case. Below are a few things providers should keep in mind when facing any healthcare fraud investigation:
Retain All Documentation and Potentially Relevant Evidence
In the face of a healthcare fraud investigation, it may be tempting to get rid of any evidence that you fear could hurt your case. However, as soon as you become aware of an investigation, it triggers an affirmative duty on your part to preserve all potentially relevant evidence. A provider’s failure to do so could result in the filing of additional charges.
Internally Review All Potential Violations
Before federal investigators arrive on-scene, providers should conduct their own internal audit of their referral relationships and billing practices as they pertain to amino testing. This will give providers an idea of what, if anything, investigators will find during the investigation.
One of the most common mistakes providers make when facing a federal healthcare fraud investigation relates to a lack of preparation. Providers knowing that investigators will soon be arriving should take every effort to gather all documentation that investigators may want to review. This will not only reduce the amount of time investigators will remain at your practice, but will also keep them from rummaging through every file to find what they are looking for.
Consult with a Healthcare Fraud Defense Attorney
Healthcare providers are experts when it comes to their practice area. However, they may not be as adept at handling the complexities of a federal fraud investigation. For these providers, it is imperative that they reach out to an experienced healthcare fraud defense attorney. Federal investigators and prosecutors are highly specialized and will know exactly what to look for and what questions to ask. In an effort to appear cooperative, physicians may give investigators more information than they need to, which can raise additional red flags. The better option is to allow an attorney to handle communications with investigators, as they will be able to effectively limit the scope of the investigation.
Contact Oberheiden, P.C. to Speak with an Amino Testing Medicare Fraud Lawyer Today
If you recently learned that you or your practice is being considered for Medicare fraud charges related to amino testing, Oberheiden, P.C. can help. At Oberheiden, P.C., our experienced team of healthcare fraud defense lawyers has more than a century of experience representing providers in all types of civil and criminal fraud investigations. Our clients often bring us onto their case early on in the process, at the first mention of an investigation. In many cases, we can effectively resolve a case without any charges being filed. To learn more about the services we provide and to speak with a healthcare fraud lawyer about your case today, call Oberheiden, P.C. at 888-680-1745 today. You can also reach us through our online contact form.