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In Defense of Strong Medicare Fraud Defense


The recent surge in federal Medicare Fraud prosecutions in Florida and throughout the United States highlights the danger of an inadequate defense and the need for sophisticated defense strategies.  Defending Medicare Fraud cases requires navigating of complex maze of federal statutes, agency regulations, and health care and professional practice standards.  The number of attorneys who combine broad criminal defense experience and the specific knowledge of Medicare Fraud issues is limited, and with the steep increase in prosecutions, there is a real risk that the government will gain an unfair advantage.

Even the basics of the Medicare program are complex.  The Medicare program was established in the Social Security Act of 1965.  It provides benefits to persons over the age of 65 and certain disabled individuals.  Medicare is administrated by the Centers for Medicare and Medicaid Services, an agency housed with the Department of Health and Human Services.

While the Medicare program has existed for more than 45 years, in the last decade the federal government has devoted tremendous resources to investigating and prosecuting crimes relating to the Medicare program, with a special focus on South Florida.  Years ago Ellsworth Law Firm saw this trend developing and developed an expertise in this area through representation of individuals and corporations under investigation or charged with Medicare related crimes.

At the onset, it is important to understand what the term “Medicare fraud” means.   Medicare fraud is an umbrella term used to reference crimes related to participation in the Medicare program – either as a provider, a beneficiary, or a third party.  Next, we set out some of the specific crimes charged by  the federal government in relation to the Medicare program or under the umbrella term “Medicare Fraud.”

Health Care Fraud

Section 18 U.S.C. § 1347 (health care fraud), prohibits an individual or entity from knowingly and willfully executing, or attempting to execute, a scheme and artifice to defraud Medicare, and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, Medicare.  Health care fraud carries a maximum penalty of 10 years’ imprisonment.

Conspiracy to Commit Health Care Fraud

Section 18 U.S.C. § 1349 (conspiracy to commit health care fraud), prohibits an individual or entity from knowingly and willfully conspiring to execute a scheme and artifice to defraud a health care benefit program (i.e. Medicare) affecting commerce, and to obtain, by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of Medicare, in connection with the delivery of and payment for health care benefits, items, and services.  Conspiracy to commit health care fraud carries a maximum penalty of 10 years’ imprisonment.

Payment of Kickbacks in Connection with a Federal Health Care Program

Section 42 U.S.C. § 1320a-7b(b)(2)(A)(payment of kickbacks in connection with a federal health care program), prohibits an individual or entity from knowingly and willfully offering and paying remuneration (kickbacks and bribes), overtly and covertly, to individuals to induce referrals to Medicare providers for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole or in part by the Medicare program.  Payment of kickbacks in connection with a federal health care program carries a maximum penalty of 5 years’ imprisonment.

Receipt of Kickbacks in Connection with a Federal Health Care Program

Section 42 U.S.C. § 1320a-7b(b)(2)(A)(receipt of kickbacks in connection with a federal Health Care Program), prohibits an individual or entity from knowingly and willfully solicit and receive remuneration (kickbacks and bribes), overtly and covertly, to individuals for referring individuals to Medicare providers for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole or in part by the Medicare program.  Receipt of kickbacks in connection with a federal health care program carries a maximum penalty of 5 years’ imprisonment.

Conspiracy to Receive and Pay Health Care Kickbacks

Section 18 U.S.C. § 1349 (conspiracy to receive and pay health care kickbacks), prohibits an individual or entity from knowingly and willfully paying any remuneration, including, kickbacks, bribes, rebates, directly and indirectly, overtly and covertly, in cash and in kind, to any person to induce such person to refer an individual for the furnishing and arranging for the furnishing of any item and service for which payment may be made in whole or in part by the Medicare program; and to induce such person to purchase, lease, order, and arrange for and recommend purchasing, leasing, and ordering any good facility, service, and item for which payment may be made in whole or in part by the Medicare program.  Conspiracy to receive and pay health care kickbacks carries a maximum penalty of 5 years’ imprisonment.

While these are the most common types of Medicare fraud charges we see in our practice defending clients investigated or charged for Medicare fraud, this is not meant to be an exhaustive list of charges filed under the umbrella of “Medicare fraud.”  In addition to the Medicare-specific counts, the government often adds some form of money laundering charge(s) – these money laundering charges generally involve maximum sentences of 20 years’ imprisonment for each count charged.

As is clear from this brief discussion, Medicare fraud charges involve complex statutes employing legal terms of art, mediated through federal administrative agencies and the rules they make, applied in the special context of provision of health care services.  Defending the charges requires much more than run-of-the mill criminal defense strategies and knowledge.  The number of lawyers qualified to successfully defend against federal Medicare fraud charges is small to start.  Now that the government has stepped up prosecutions and turned up the pressure, we fear many lawyers not familiar with the intricacies of Medicare fraud defense will be called into action.

No defendant should have to suffer the risks of a lawyer learning the ropes in while defending his or her case.   We want to call the criminal defense bar to action here; to make sure every Medicare fraud defendant gets the best possible defense, criminal defense lawyers experienced Medicare fraud defense should help to educate and assist fellow defense attorneys unschooled in the nuances of Medicare fraud defense.  Ellsworth Law Firm stands ready to answer the call to help other lawyers the same way we vigorously defend our individual clients.