What the government has to prove
The federal healthcare fraud statute makes it a crime to knowingly and willfully carry out, or try to carry out, a scheme to defraud a health care benefit program, or to obtain its money through false or fraudulent pretenses, in connection with health care services.
Health care benefit programs include Medicare, Medicaid and TRICARE, and also private insurance plans. The statute says a person does not need to know about the law itself, or intend to violate it, to be convicted. The government must still prove the person acted knowingly and willfully, and intent is often where these cases are fought.
Intent is often where these cases are won or lost.
Charges that often come with these cases
Healthcare fraud indictments frequently include more than one count. These are the federal statutes that come up most often.
| Charge | What it covers | Maximum prison term |
|---|---|---|
| Health care fraud, 18 U.S.C. § 1347 | A scheme to defraud a public or private health care benefit program | 10 years; 20 if it results in serious bodily injury; life if it results in death |
| Attempt or conspiracy, 18 U.S.C. § 1349 | Attempting or agreeing with others to commit fraud | The same as the underlying offense |
| Kickbacks, 42 U.S.C. § 1320a-7b(b) | Paying or receiving anything of value for patient referrals or federally covered business | 10 years and a fine of up to $100,000 |
| False statements, 18 U.S.C. § 1035 | False statements or concealment in a health care matter | 5 years |
Sentences actually imposed depend on the federal sentencing guidelines, the alleged loss and many other factors. A federal case can also bring civil claims under the False Claims Act and exclusion from Medicare and Medicaid.
Who investigates
Healthcare fraud cases are usually built by the Justice Department’s Fraud Section working with the FBI, the Office of Inspector General of the Department of Health and Human Services (HHS-OIG) and the Centers for Medicare & Medicaid Services. Prosecutors run a dedicated healthcare fraud strike force in Florida.
Investigations often begin with billing data, a payment audit or a former employee who becomes a cooperating witness, long before anyone is charged.
How these cases usually unfold
- Data and auditsBilling patterns are flagged, and payments may be audited or suspended.
- Subpoenas and agentsRecords are subpoenaed, search warrants may be executed and employees are interviewed.
- Target lettersPeople prosecutors consider likely defendants may be notified before charges.
- IndictmentCharges are filed, often against several people at once.
- Plea or trialThe case resolves by agreement, by motion or in front of a jury.
Where these cases are often defended
Every case turns on its own facts. Issues that frequently matter include:
- Intent. Whether the person acted in good faith, relied on billing or compliance advice, or knew of the conduct at all.
- Medical necessity. Whether services the government calls unnecessary were reasonable clinical judgments.
- The government’s numbers. How loss and billing patterns were calculated.
- Cooperating witnesses. The credibility and motives of former employees or co-defendants.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz and Victor Rocha, who together bring decades of federal defense experience. The team can respond to agents and subpoenas, deal with prosecutors before charges are filed and prepare the case for trial.
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