Amanda S. Marshall Former U.S. Attorney (Local Counsel)
Lynette Byrd Former Assistant U.S. Attorney
Roger Bach Former Special Agent (OIG & DEA)
Joe Brown Former U.S. Attorney
Fraud Defense for Psychologists and Psychiatrists
Like all doctors, psychologists and psychiatrists face numerous compliance burdens, and non-compliance has the potential to lead to severe consequences. Our lawyers represent psychologists nationwide in federal and private insurance fraud audits and investigations.
All aspects of healthcare are heavily regulated in the United States, and psychology and psychiatry are no exceptions. Psychologists and psychiatrists routinely face scrutiny from federal authorities and private insurers, and any appearances of impropriety with regard to billing or prescribing opioid medications have the potential to lead to serious consequences.
What would happen if your practice lost its access to private insurance? What would happen if your practice was excluded from Medicare? What if you lost your license? What if you were charged with a federal crime? While these outcomes might seem unlikely – or even outlandish – these are very real possibilities if your psychology or psychiatry practice is under investigation for billing or prescription drug fraud.
Federal Defense Lawyers for Psychologists and Psychiatrists
Our lawyers have extensive experience representing psychologists and psychiatrists in fraud audits and investigations. Our practice is nationwide in scope, and we focus our practice in the area of healthcare fraud defense under federal law. We represent doctors in professional licensing matters as well; and, if you or your practice is under scrutiny, we can execute a comprehensive defense strategy that is focused on protecting your license and keeping your practice open.
Successfully defending a psychologist in a Medicare audit. Our client had an 82% error rate and was missing charts and notes for multiple patients. We helped our client pass the audit and avoid all charges.
Successfully defending another psychologist in a similar situation involving similar allegations. Again, we were able to help our client pass the audit and avoid charges.
Successfully defending a licensed professional counselor (LPC) in a private insurance audit. Despite our client having five years’ worth of files missing, we were able to help our client pass the audit and avoid further consequences.
Our firm is comprised exclusively of senior-level attorneys, many of whom previously oversaw federal healthcare fraud audits and prosecuted Medicare fraud cases on behalf of the federal government. We also have former agents with the U.S. Drug Enforcement Administration (DEA), U.S. Department of Health and Human Services (DHHS), and other federal agencies available to consult on our clients’ federal fraud audits and investigations. Meet our attorneys and consultants.
Put our highly experienced team on your side
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)
Medicare Fraud Audits and Investigations
A significant number of fraud allegations against psychologists and psychiatrists arise in relation to their Medicare billings. Medicare has stringent (and extraordinarily complex) billing rules and regulations, and participating providers must maintain strict compliance in order to avoid allegations of federal fraud.
5 Examples of Common Allegations in Medicare Fraud Audits and Investigations
Medicare fraud allegations can take many different forms. With that said, audits and investigations targeting psychologists and psychiatrists tend to focus on a number of alleged violations in particular. At Oberheiden P.C., we have successfully defended psychologists and psychiatrists against allegations including (but by no means limited to):
1. High Error Rate
Having a high error rate is among the most-common triggers for targeted audits and investigations of psychologists and psychiatrists. DHHS and the Centers for Medicare and Medicaid Services (CMS) expect strict compliance when it comes to billing Medicare and other federal benefit programs, and high error rates will almost always lead to scrutiny.
2. Missing Charts
Maintaining thorough patient documentation is a key aspect of Medicare billing compliance. When psychologists and psychiatrists are missing charts, this can present significant challenges for avoiding recoupments and other penalties. However, there are defenses available, and our fraud defense attorneys have had significant success in these types of cases.
3. Missing Notes
Even if your practice is not missing entire charts, being unable to quickly locate notes that substantiate individual Medicare billings can also lead to allegations of healthcare fraud. Again, thorough documentation is key, and all Medicare-participating providers are expected to rely on comprehensive compliance programs to develop and store all necessary patient and billing-related files.
4. Lack of Medical Necessity
A common allegation across all types of Medicare fraud audits and investigations is “lack of medical necessity.” Under the Medicare billing regulations, a service or medication is only eligible for reimbursement if it meets CMS’s “necessity” criteria. This means that even if you believe in your professional opinion that a particular service or drug is appropriate for your patient, this does not necessarily mean that it is eligible for Medicare reimbursement.
5. Billing Errors
In addition to all of the above, billing errors are at issue in many Medicare fraud audits and investigations as well. This includes everything from upcoding and unbundling to billing for services not actually provided). When accused of fraudulently billing Medicare, psychologists and psychiatrists must be prepared to affirmatively demonstrate compliance in order to avoid administrative penalties as well as civil and criminal charges.
Private Insurance Fraud Audits
Private insurers generally target the same types of issues as Medicare auditors and investigators when auditing psychologists and psychiatrists. Telehealth consultations are increasingly becoming a focus of private insurance fraud audits as well. If an insurer is auditing your practice’s billing records, you need to treat the situation just as you would treat an audit involving Medicare. Although private insurers are not federal agencies, they can (and will) report fraudulent activity to federal agencies, and private insurance fraud is a federal offense under the U.S. Code.
DEA Registrant Audits and Opioid Fraud Investigations
In addition to billing violations, the other primary area of federal risk for psychologists and psychiatrists is DEA compliance. Providers that are registered with the DEA must maintain strict compliance with the DEA’s registration requirements, and all psychologists and psychiatrists must be careful to avoid engaging in practices that may run afoul of the Controlled Substances Act, the Anti-Kickback Statute, and other pertinent federal laws.
5 Examples of Common Allegations in DEA Audits and Investigations
Some examples of common allegations against psychologists and psychiatrists in DEA audits and investigations include:
1. Prescribing Medically-Unnecessary Drugs
Allegations of prescribing medically-unnecessary drugs are very common in DEA audits and investigations targeting psychologists and psychiatrists. Similar to allegations of billing fraud, when faced with allegations of prescribing unnecessary medications, psychologists and psychiatrists must be prepared to justify their decisions with appropriate documentation.
2. Accepting Kickbacks from Drug Manufacturers or Suppliers
Psychologists and psychiatrists can also get into trouble for accepting kickbacks from drug manufacturers and suppliers. Many different types of monetary and non-monetary compensation can trigger the Anti-Kickback Statute’s prohibitions, and allegations of accepting unlawful compensation have the potential to lead to civil or criminal penalties.
3. Controlled Substances Act Violations
In addition to prescribing medically-unnecessary drugs, various other violations of the Controlled Substances Act can lead to scrutiny for psychologists and psychiatrists as well. This includes everything from failing to maintain sufficient records to facilitating the diversion of opioid drugs.
4. DEA Registration Violations
For DEA registrants, failing to maintain strict compliance with the conditions for registration can lead to trouble during audits and investigations as well. We have significant experience representing DEA registrants, and our attorneys and consultants can help you avoid unnecessary consequences due to non-compliance.
5. Electronic Prescription Fraud
Electronic prescription fraud is increasingly becoming an issue in DEA audits and investigations. If your practice relies on electronic prescriptions, you must ensure comprehensive compliance with the CSA and all relevant DEA rules and regulations.
How We Help Psychologists and Psychiatrists Who are Facing Audits and Investigations
If your practice is being targeted in a fraud audit or investigation, you need to rely on experienced legal counsel to help you avoid serious consequences. When you choose Oberheiden P.C., our attorneys and consultants will:
Conduct an Attorney-Client Privileged Internal Assessment – We will examine your practice’s billing and patient records in order to determine whether and to what extent any past violations may need to be addressed and what compliance improvements are necessary.
Defend You and Your Practice During the Audit or Investigation – We will deal with the auditors or investigators on your behalf throughout the inquiry, and we will execute a targeted defense strategy based on the specific facts and issues involved.
Protect Your Medicare Eligibility and DEA Registration – We will work to help you avoid Medicare exclusion; and, if you are registered with the DEA, we will focus on protecting your DEA registration as well.
Protect Your Professional License – We will fight vigorously to protect your professional license regardless of the scope and severity of the allegations against you.
Protect You Against Civil or Criminal Charges – If you are accused of fraud, we will rely on our attorneys’ relevant experience to protect you against civil or criminal charges.
Schedule a Free Initial Consultation at Oberheiden P.C.
If you need to speak with a federal defense lawyer about a Medicare, DEA, or private insurance fraud audit or investigation, we encourage you to contact us promptly. To discuss your situation with one of our senior defense attorneys in confidence, call 888-680-1745 or request a free initial consultation online now.
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