Wade McFaul Healthcare Fraud Team Former HHS-OIG Assistant Special Agent-in-Charge
Just like Medicare Fraud, DOL Fraud assumes that a healthcare provider attempted to, or did in fact, defraud the federal government, or that he or she assisted others in defrauding the federal government, with an underlying illegal motivation.
One of the most common and notorious accusations by agents investigating DOL fraud are that a particular
service that the government was billed for or a particular device or pharmaceutical product were in fact
never rendered to the patient. In more extreme scenarios, this could also include the submission for
claims of patients that never existed, such as so-called ghost patients.
A large portion of government investigations in the area of DOL fraud involves upcoding and bundling of
healthcare services. Upcoding occurs when a healthcare provider submits a claim for a procedure that
is more serious and therefore more expensive than the actual diagnosis. Bundling and unbundling of
services occurs when services with group rates are lumped together to request the group reimbursement
rate or when one service is split into multiple services to receive a higher rate by billing for each
separately.
Under federal law, any remuneration, any offer, any payment, any solicitation, or any receipt of
remuneration to entice or compensate or reward a patient referral payable by a government healthcare
program, such as DOL, is illegal. Courts consider even the smallest attempt of bribing referrals a
violation of the federal Anti-Kickback Statute, 42 U.S.C. § 1328-7b(b) and the Federal False Claims Act.
Who Are Targets?
The reasons a DOL provider may become a target of an investigation vary from case to case. Generally speaking, most audits by the Department of Labor are initiated due to one of the following events:
Complaint by Former Employee
Complaint by Former Patient
Excessive or Suspicious Billing Practice
Connection to Another DOL Investigation
Put our highly experienced team on your side
Dr. Nick Oberheiden
Founder
Attorney-at-Law
John W. Sellers
Former Senior Trial Attorney U.S. Department of Justice
Local Counsel
Joanne Fine DeLena
Former Assistant U.S. Attorney
Local Counsel
Lynette S. Byrd
Former Assistant U.S. Attorney
Partner
Amanda Marshall
Former U.S. Attorney
Local Counsel
Aaron L. Wiley
Former Federal Prosecutor
Local Counsel
Roger Bach
Former Special Agent (OIG)
Gamal Abdel-Hafiz
Former Supervisory Special Agent (FBI)
Chris Quick
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Ray Yuen
Former Supervisory Special Agent (FBI)
Dennis A. Wichern
Former Special Agent-in-Charge (DEA)
What Are the Penalties?
DOL program fraud and general healthcare fraud constitute serious federal felonies that can be charged in one of two ways.
The government can request recoupment, often under the provisions of the False Claims Act. In this case,
the government will ask for the difference between what was charged and paid to the provider and what
should have been charged and paid. In addition to repaying the difference, the government typically
imposes a civil fine that will be a percentage of the total damage that was caused by the billing error.
On the other hand, healthcare fraud and DOL program fraud can also be charged as criminal felonies. In
such a case, federal prosecutors will typically attempt to indict the responsible owners and staff at
the healthcare company with healthcare fraud under 18 U.S.C. § 1347. Each count under 18 U.S.C. § 1347
carries a maximum sentence of 10 years imprisonment.
Is My Case Civil or Criminal?
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One of the most important questions in any DOL investigation is to find out whether the case is civil or criminal. DOL case investigations can go either direction and government lawyers are divided into civil and criminal prosecutors.
The best way to find out what exactly has prompted the government to audit you is to contact the agents and lawyers in charge and establish a dialogue. Trained and experienced defense lawyers will typically be able to extrapolate from this communication why and what for the government is interested in your practice. Understanding the context and the objectives of the investigation allow to elaborate the proper defense strategy.
Sometimes, the experienced DOL fraud defense lawyers of the Oberheiden, P.C., some of whom are former federal healthcare prosecutors themselves, will be able to find an answer to this critical question already by looking at the subpoena a client received or by the way agents contacted the healthcare provider.
Finding out whether the investigation civil or criminal is one of the top priorities when we launch our Emergency Defense Package in federal investigations.
What is the Emergency Defense Package?
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Targets often learn about their alleged involvement in federal program fraud when federal agents show up at their door either to serve a subpoena or to inspect the premises with a search warrant. When that’s the case, time is of the essence.
Over the years, Oberheiden P.C. has developed certain protocols that allow immediate action-taking. Case after case, these protocols have proven to work because they allow the implications of important steps that can make a huge difference in outcome, or may even turn a case from possible criminal to civil.
The Emergency Defense Package contains:
General Protocols: What to Do
Instructions for Management: How to Deal with Agents
Instructions for Management: How to Deal with Employees
Instructions for Employees
Document Retention Forms
Compliance Examination Instructions
Important Contact Information
DOL Cases and Experience
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The DOL fraud defense attorneys of Oberheiden, P.C. know how to protect you, your livelihood, and your family. Healthcare fraud and DOL program fraud are serious accusations. You can expect a serious defense approach from us.
Our team of experienced fraud defense lawyers has been retained in a great variety of healthcare fraud cases in general and in DOL healthcare fraud cases in particular. In those cases, we were retained to defend physicians, healthcare business owners, and patients against healthcare fraud, bribery, and anti-kickback violations. We have concluded dozens of federal, civil, and criminal healthcare fraud investigations resulting in no civil and no criminal liability for our clients.
We do not use paralegals or junior lawyers and all clients are represented by a team effort, led by
former federal prosecutors and experienced healthcare attorneys.
In civil DOL cases, the government can demand a repayment of overpayments plus damages and penalties. The
amount of penalties, if applicable, may be reduced and negotiated by our experienced attorneys.
We do not use paralegals or junior lawyers and all clients are represented by a team effort, led by
former federal prosecutors and experienced healthcare attorneys.
Defending You
Oberheiden, P.C. has successfully appeared in some of the largest DOL investigations in the country. In many healthcare fraud cases, our attorneys were able to obtain no civil or criminal liability results for our clients and were able to dismiss the government’s case in its entirety. Contact us today to speak with an experienced attorney.
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