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The Medicare Fraud Investigation Process

Renown Federal Healthcare Fraud Defense Lawyers Aggressively Defending Medical Professionals in All Types of Healthcare Fraud Actions

Lynette Byrd
Attorney Lynette Byrd
Healthcare Fraud Team Lead
Former Federal Prosecutor
Nick Oberheiden
Attorney Nick Oberheiden
Healthcare Fraud Team
Kevin M. Sheridan
Kevin M. Sheridan
Healthcare Fraud Team
Former FBI Special Agent
Wade McFaul
Wade McFaul
Healthcare Fraud Team
Former HHS-OIG Assistant Special Agent-in-Charge

Medicare fraud is a hot-button issue right now, with people on both sides of the political aisle expressing greater concern over wasteful government spending. The result is that federal prosecutors have taken an aggressive approach to the prosecution of healthcare professionals who defraud the federally backed healthcare program. In fact, in September 2020, the U.S. Health and Human Services Office of Inspector General organized a concerted effort involving state and federal law enforcement officials referred to as the “National Healthcare Fraud Take Down.” This effort alone resulted in 345 defendants being charged, including more than 100 medical professionals, involving more than $6 billion in alleged losses.

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Oberheiden. P.C. is a national healthcare fraud defense law firm providing doctors, practice groups, hospitals, hospice care facilities and other healthcare providers with aggressive representation in Medicare fraud cases. Our federal healthcare fraud lawyers have notable experience defending the rights of healthcare professionals. We take a strategic, team-based approach to every case we handle, focusing on early intervention to limit the scope of the investigation. In more than 92 percent of the cases we are involved in, we can resolve the case without the filing of criminal charges.

What Is Medicare Fraud?

Simply put, Medicare fraud is any action taken to deprive Medicare of resources. While most instances of Medicare fraud involve a healthcare provider’s action, that is not always the case; some federal healthcare fraud statutes allow the prosecution of non-practitioners. Medicare fraud can result in civil or criminal penalties, depending on the nature of the alleged violation.

Some of the most common examples of Medicare fraud involve the following allegations:

Upcoding – Using a billing code that results in a higher reimbursement amount than is authorized.

Unbundling – Using two or more Current Procedural Terminology (CPT) billing codes instead of one inclusive code to increase the amount of reimbursement.

Double-billing – Attempting to charge for the same service twice by billing once under an individual code and again under a bundled set of tests.

Billing for missed appointments – Billing Medicare for appointments the patient failed to keep.

Phantom billing – Billing for services, equipment or supplies not rendered.

Improper referrals – Paying for referrals of federal healthcare program beneficiaries.

Unnecessary procedures – Billing for services or equipment that Medicare does not consider to be medically necessary.

Medicare fraud investigations often involve multiple federal agencies working in tandem. For example, the U.S. Department of Justice (DOJ), the U.S. Department of Health & Human Services (HHS), the HHS Office of Inspector General (OIG), and the Centers for Medicare and Medicaid Services (CMS) may all be involved in a healthcare fraud investigation.

While the exact nature of a Medicare fraud investigation varies to some degree depending on the specific allegations and the federal agencies involved in the investigation, they typically follow a similar process.

Identification of Possible Misconduct

Necessarily, the first stage in the Medicare fraud investigation process involves the government becoming aware of possible signs of fraud. Federal investigators can uncover what they believe to be fraudulent activity in a variety of ways. In some cases, CMS or another federal agency discovers something that raises a red flag through the normal course of business. For example, a government analyst with Medicare may notice a pattern of billing discrepancies that appear to be intentional. However, in other situations, a patient, former employer or business partner, or some other third party brings evidence of possible misconduct to the federal government’s attention.

Once a government agency discovers possible fraud, it will often involve the Federal Bureau of Investigation (FBI), which spearheads the investigation.

The Government’s Investigation

Once the government becomes aware of possible Medicare fraud, it begins an investigation into the allegations. The nature of an investigation depends on the allegations; however, these investigations are secretive in most cases. Government investigators are cautious not to let the subject learn of their investigation. This prevents the subject from interfering with the investigation, either by talking with potential witnesses or destroying or hiding evidence. However, the practical import of this is that subjects of a Medicare fraud investigation do not often learn that they are under investigation until charges are filed.

The Filing of Charges

If the government is able to substantiate allegations of Medicare fraud, it will initiate a civil or criminal lawsuit.

If the federal government is proceeding with civil charges, it may issue a civil investigative demand (CID). A CID is a type of administrative subpoena that federal agencies can issue without first obtaining judicial approval. In other words, investigators themselves determine when to issue a CID. While a CID does not require the government to obtain a judge’s approval, CIDs carry the same force as other subpoenas. Thus, anyone in receipt of a civil investigative demand is legally compelled to respond. Otherwise, they could be held in contempt of court, which may give rise to additional penalties in addition to any punishment related to the underlying Medicare fraud claims.

When the government pursues criminal charges, the process is usually much more secretive. Before federal prosecutors can indict the subject of their investigation, they must first obtain a “true bill” by presenting their case to a grand jury. If the grand jury determines that there is probable cause to believe that the subject committed the offenses in question. However, neither the subject nor their attorney is present at the grand jury proceeding, which is run entirely by the federal prosecutor. The prosecutor also determines which evidence the grand jury should hear. Thus, it’s no surprise that many grand jury proceedings end in the issuance of a true bill.

Often, Medicare fraud claims begin as civil claims but may escalate to a criminal prosecution if investigators determine that a provider’s actions were designed to intentionally defraud Medicare.

The Defense Response

The second you learn of a pending Medicare fraud investigation is a critical time. Depending on how you handle the situation can have a profound impact on the ultimate resolution of the case. While there is a natural tendency to take a “wait and see” approach, typically, this is a mistake. The better option is to immediately retain the services of a skilled federal healthcare fraud attorney to look into the allegations and begin working on a comprehensive defense strategy.

Early intervention is key in Medicare fraud cases for a few reasons. First, an attorney can reach out to federal investigators or prosecutors on your behalf to learn more about their case. This not only provides you with more information about the government’s case but also allows your lawyer to clear up any misconceptions. Often, federal investigators make assumptions based on their own biases. They may fill in evidentiary gaps without even realizing they are doing so. Having a skilled Medicare fraud lawyer tactfully reach out to investigators can—and often does—result in the withdrawal of all charges.

Second, early intervention essentially disrupts the investigation. The moment you retain an attorney, federal investigators can no longer speak with you personally; they must go through your attorney. This prevents you from making any statement that, while innocent in intent, could implicate you in a healthcare fraud scheme.

Why Choose Oberheiden, P.C. to Represent You in a Medicare Fraud Case

If you recently learned of a pending Medicare fraud investigation, one of the most important decisions you will make related to your case is which attorney you select to represent you. Certainly, there are many healthcare fraud lawyers who are willing to take your case. And, most of these lawyers are capable of competently handling your case. However, when your profession, future, and freedom are on the line, you deserve more than “competent” representation.

At Oberheiden, P.C., we’ve assembled a team of veteran healthcare fraud lawyers, many of which spent years prosecuting Medicare fraud on behalf of the federal government before joining our firm. This provides us with a unique insight and perspective in these cases, which we use to strategically position our clients’ cases for a successful outcome. We’ve handled many federal jury trials as well as over 2,000 other federal cases that we resolved without the need for a trial. In the vast majority of the investigations we’re involved in, we can wrap up an investigation without the government ever filing charges. However, even if charges were already filed or unavoidable, our senior litigators are more than prepared to take the case to trial.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden



Lynette S. Byrd
Lynette S. Byrd

Former Assistant U.S. Attorney


Ellen Comley
Ellen Comley

Senior Counsel


Roger Bach
Roger Bach

Former Special Agent (OIG)

Steven Taylor
Steven Taylor

Healthcare Compliance Consultant

Susan Sage
Susan Sage

Healthcare Auditor

Contact Oberheiden. P.C. to Schedule a Free Consultation with an Experienced Federal Medicare Fraud Defense Attorney

If you face federal Medicare fraud charges or are under investigation for healthcare fraud, contact Oberheiden, P.C. Our attorneys are standing by to discuss your case, answer your questions, and offer whatever assistance we can. You can reach our Medicare fraud defense lawyers at 888-680-1745 or reach us online through our contact form.

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