NYC Healthcare Fraud Lawyer

Sentencing for Healthcare Fraud Charges In New York

Violations of the healthcare fraud provisions of the federal code are punishable by up to ten (10) years in prison.  If a person suffered serious physical injury as a result of the fraud, a sentence of up to twenty (20) years is authorized and if death is caused as a consequence of such fraud, a sentence of life in prison may be imposed.   

Separate and apart from any jail time, a conviction for health care fraud will almost always result in exclusion from participation in the Medicare and Medicaid programs, loss of professional licensure, loss of board accreditation, restitution, and forfeiture of all proceeds of the fraud as well as significant fines. 

A court imposing a sentence for healthcare fraud will first consider the applicable federal sentencing guidelines.  Like all crimes premised on fraud, the primary determinant of the guidelines level will be the amount of “loss” or intended loss caused by the defendant’s fraudulent scheme.  In the context of healthcare billing, a knowledgeable and skilled defense counsel may be able to reduce the loss amount and therefore the applicable guideline level by demonstrating that despite the face amount of a claim for services,  the defendant did not intend to be reimbursed that amount but rather in the amount that the program or insurer regularly offered for reimbursement.  Oftentimes the latter represents but a fraction of the billed amount. In addition, the government may press for the loss amount to represent the total amount of all billings for a procedure or service proven to have been fraudulently submitted.  But merely because fraud was present in a certain number of cases does not mean that all such similar procedures or services were improperly billed.  By using  “sampling and extrapolation” — really, a randomized audit of a significant number of claims — it may be shown that only a small percentage of billed procedures were actually fraudulent.  Where this is the case, a strong argument can be made by a healthcare fraud lawyer that the court should not use the total amount billed in computing the loss amount.   

Also impacting the advisory guidelines are the number of fraudulent claims made, the number of victims and the impact upon them, whether the claims were made to the Medicare, Medicaid, or Tricare programs and exceeded $2,000,000, whether sophisticated means were used to defraud or to conceal, whether the defendant used a special skill to commit the offense and whether he or she was a leader or organizer of the scheme.   

Once the court has determined the advisory guidelines level,  skilled counsel may make strong arguments about his client’s personal history, character, and standing in the community, about the harm and collateral consequences already occasioned as a result of the conviction itself, together with all other mitigating data. 

There Are Defenses to Federal Healthcare Fraud    

First, most criminal healthcare fraud prosecutions turn on whether the accused acted with “fraudulent intent.”  If it can be shown that the accused acted in good faith even if their belief was wrong, fraudulent intent may be lacking.  Likewise, a defense of mistake, that is an unintentional misstatement or representation or omission, may be presented.   If the prosecution is premised upon claims of overbilling or submission of wrong billing codes, it is quite possible that the accused or an employee of the office made clerical errors resulting in these errant claims.  After all, CRT billing codes are complex and ever-changing.  

Second, in those prosecutions based upon a theory of billing for medically unnecessary medical procedures or prescriptions, by working with one or more experts in medicine and in billing, it may be possible to establish that the challenged conduct was medically appropriate. By challenging the prosecution’s experts on the asserted standard of care, a lack of intent to defraud may be shown.    

Third, in many healthcare fraud prosecutions, there may be a viable defense raised that the accused was uninvolved and unaware of another person’s fraudulent conduct.   In many clinics and medical offices,  there may not be a clear demarcation of the person or persons responsible for medical billing, and different aspects of the billing process may be performed by different employees within the office.   Without clear evidence as to who did what, it may be difficult to identify those liable for fraudulent submission of claims.  And often enough, there may be contradictory evidence as to whether staff was billing based on their own experiences and skills or whether they were doing so at the specific direction of a provider. 

Speak With An Expert NYC Healthcare Fraud Lawyer Today

If you or your company are facing white collar criminal charges of healthcare fraud or are a subject or target of a federal investigation involving allegations of healthcare fraud,  give NYC healthcare fraud lawyer Fred Sosinsky a call today and start working on a winning defense.