Articles Tagged with medicare fraud

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pills-300x200Health Care Fraud is one of the most common white collar crimes charged by the Federal Government. The Health Care Fraud statute states:

(a)Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—

(1) to defraud any health care benefit program; or

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medical-doctor-1314902-sCHICAGO – Medicare and Medicaid providers are more often than ever facing audits from government agencies, regulators, or their surrogates. When contacted by any such an entity the first step is to determine your potential liability and exposure. Too many times, I have seen providers expose themselves needlessly to a criminal prosecution based on what started out as an administrative investigation. The goal should be to keep the inquiry at the lowest level possible, which is why it is important to obtain counsel experienced in both criminal and civil matters.

Most commonly, audits start with a document request or visit from law enforcement seeking records related to Medicare beneficiaries. This first contact tells us something about the government’s posture. If the government sends out agents to obtain records that is signaling that the government may believe that the provider will alter records if given the opportunity to produce them at a later time, typically 30 days. A document request by mail typically signals a civil inquiry.

When submitting records it is imperative that all documents are reviewed prior to submission and are bates labeled so that the produced documents can easily be identified for purposes of an appeal.

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In 2014, the American Hospital Association sued the Secretary of Health and Human Services to compel HHS to clear the delay in the Medicare administrative appeals process and to comply with the statutory ninety-day time frame for Administrative Law Judge hearings. (The August 11, 2017, court of appeals opinion can be found here.)

Congress directed HHS to establish an appeals process for denied Medicare reimbursement claims and directed that the appeals process be completed within certain time parameters. The entire appeals process was designed to take less than one year to complete and set time limits on each stage of the appeal: 60 days for stage one, the redetermination; 60 days for stage two, the reconsideration; 90 days for stage three, the hearing before the ALJ; and 90 days for stage four, the hearing before the Medicare Appeals Council. The fifth stage is judicial review in a district court. (For more information about the appeals process click here and here.) For many years the appeals process functioned within these parameters.

Beginning in 2001, there was an increase in appeals. This increase, which was dramatic and unexpected, was caused by a large number of new beneficiaries, and providers appealing almost every denied claim. Additionally, and perhaps most importantly, under the Medicare Recovery Audit Program, HHS hired recovery audit contractors known as RACs to review every claim paid and identify overpayments. The RACs then sought to recoup those overpayments, which could have been paid to the provider years ago. When a RAC identifies an overpayment, the provider could either pay it or file an appeal. Many providers decided to file an appeal, and appeals increased from 56,600 in fiscal year 2011, to 607,402 appeals waiting for an ALJ hearing in June 2017. Although providers can skip this level and escalate the appeal, providers forfeit certain rights and have been reluctant to do so. (See, How to Advance your Appeal After a Reconsideration by a QIC.)  Without some form of relief, the backlog is expected to grow to over 950,000 by 2021 and some claims which have already been filed are expected to take over 10 years to complete.

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Medicare and its regulation are replete with abbreviations, acronyms, and content specific phrases. The link below contains a list of 75 and growing. I hope you find this list helpful. If you have any additions, please contact me and I will include them. Mike

Abbreviations – Health Care



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Twenty dollar bills isolated against white background.
When Medicare conducts an audit of a provider and concludes that an overpayment has occurred it will attempt to recoup that overpayment.  This article will discuss the overpayment appeals process.

There are five levels of appeal, each of which is considered a completely new examination of the audit and determination.  Unlike a judicial appeal in which the appellate court often reviews the lower court only for plain error or an abuse of discretion, these Medicare appeals are independent determinations and not tied to the prior overpayment determination.

After an initial finding of an overpayment, the first level of review is called a redetermination. A redetermination is performed by an independent Medicare Administrative Contractor (MAC). Redeterminations must be filed within 120 days of the initial determination.  Redetermination decisions should be issued within 60 days.

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wheelchair-1430696One Medicare policy that has seen a boom in litigation, both civil and criminal, in the past few years relates to services being provided to allegedly homebound Medicare beneficiaries.  Homebound status is defined in the Medicare Benefit Policy Manual and states that for a patient to be eligible to receive home health services under Medicare, a physician must certify that the patient is confined to the home.  To be considered homebound, the Medicare beneficiary must be unable to leave the home without the assistance of a supporting device, special transportation, or the assistance of another person.  A person could also be considered homebound, if leaving the home is contraindicated.  In addition to the previous conditions, there must also be a considerable and taxing effort to leave the home.  In other words, just because someone uses a cane does not mean that the person is homebound for purposes of Medicare home health services.

Although, there can be some differences of opinion as to whether there is an inability to leave the home to such an extent that it would take a considerable and taxing effort, a person who leaves their home to run errands or to engage in social activities will unlikely be considered homebound.

Below is the definition from the Medicare Policy Manual.  If you have further questions, contact me by clicking here.  Violations of this requirement can result in civil or criminal prosecutions, or recoupments among other possibilities.  If you would like information about defending a Medicare Audit, or investigation click here. If you are aware of a provider falsely certifying Medicare beneficiaries as homebound, you may be able to file a claim and receive an award under the False Claims Act.  For more information about the False Claims Act, click here.

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man-with-a-megaphone-1-1378633-sChicago – Not surprisingly in light of the recent charges and convictions of home health agencies (HHA) and related entities in the Chicago area and throughout the country, the Department of Health and Human Service, Office of Inspector General, (HHS-OIG) issued an Alert reporting that the OIG found home health services susceptible to fraud.


HHAs have been accused of violating the anti-kickback statute by paying for referrals, while doctors have been accused of receiving kickbacks for these referrals. The government may consider any payment arrangement a kickback if the payment is not fair and reasonable.  Another area of concern for the HHS-OIG was the billing of home health services for patients who were not homebound, as defined in the regulations, billing for care plan oversight services that were not performed, and upcoding patient encounters.  One key factor found by the HHS-OIG was that doctors participating in these schemes were usually not the Medicare beneficiary’s primary care physician.


If you have information about fraud, waste, or abuse of a government program, including Medicare/Medicaid click here, or if you need representation as a result of a government audit or investigation, click here.  Mike Rosenblat, at 847-480-2390, or

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