The Role of Counsel After Receipt of Target Letter in Health Care Fraud Cases

Receiving a target letter from the government can be an intimidating and stressful experience. This letter indicates that you are under investigation for potential criminal charges related to health care fraud. While unsettling, it is important to remember that being named as a target does not necessarily mean you will be criminally prosecuted. An experienced attorney can provide critical guidance and advocacy to protect your rights throughout this process.

If you receive a target letter regarding an investigation into health care fraud, here are some key steps to take:

1. Don’t Panic – Consult a Lawyer

While it’s understandably alarming to receive a target letter, try not to panic. This letter does not mean you have been charged with a crime. It simply means prosecutors have reason to believe you may have been involved in unlawful activity. The best thing to do is consult an attorney experienced in health care fraud cases. They can help assess your situation and guide you through the process. Acting hastily or without legal counsel could inadvertently make things worse.

2. Do Not Destroy Any Documents

It may be tempting to shred or delete any potentially incriminating evidence. However, this could be construed as obstruction of justice. Let your attorney advise you on properly preserving relevant documents. They will identify what records may be helpful to your defense.

3. Decline the DOJ’s Request for an Interview

The letter will likely invite you to meet with prosecutors and federal agents. Politely decline this request for now. Anything you say can potentially be used against you. Your attorney can handle interactions with investigators on your behalf.

4. Understand the Allegations

Your lawyer will want to understand the nature of the allegations against you. The target letter should indicate the general suspected unlawful activity. However, prosecutors are not required to lay out all the evidence at this stage. Your attorney can probe for more details through interactions with the government.

5. Assess the Quality of Evidence

A critical task is gauging the strength of the government’s case. Your lawyer will work to get a sense of the documentary evidence and witnesses making allegations against you. Understanding potential gaps or weaknesses in the government’s position will inform the defense strategy.

6. Explore Resolution Options

In some cases, it may be in your best interest to avoid indictment by negotiating a civil settlement or pretrial diversion agreement. Your attorney can quietly explore these options with prosecutors and advise you on the pros and cons. Agreeing to cooperate as a witness against others could also mitigate consequences.

7. Prepare Your Defense Strategy

If charges do get filed, developing a defense strategy becomes essential. Your lawyer will start gathering exculpatory evidence and lining up credible expert witnesses. They will also advise you on whether to testify on your own behalf. Mounting a vigorous defense can instill reasonable doubt and lead to an acquittal.

8. Understand the Consequences

Conviction on health care fraud charges can result in severe penalties – including hefty fines, prison time, and exclusion from federal health care programs. However, the extent of punishment depends on the specific circumstances of your case. Your lawyer can give insight on likely outcomes and help achieve the most favorable resolution.

Common Types of Health Care Fraud

Some of the most common schemes resulting in target letters and criminal prosecution include:

• Billing for services never performed
• Upcoding – billing for more expensive services than provided
• Billing for unnecessary tests or procedures
• Accepting kickbacks for patient referrals
• Misrepresenting non-covered treatments as medically necessary
• Falsifying patient diagnoses to justify tests or other billings

The government has numerous tools to detect and build cases around these types of fraud. Audits of claim data can reveal suspicious billing patterns. Whistleblowers may come forward with allegations. Prosecutors can pressure co-conspirators to provide evidence against targets in exchange for leniency.

A Team Effort Is Needed

Given the complex nature of these cases, targets should assemble an experienced team beyond just their defense attorney. Other key players may include:

• Forensic accountants to analyze billing and payments data
• Former prosecutors who understand the government’s approach
• Industry experts to opine on proper standards of care
• Investigators to gather information and witness testimony

This multi-disciplinary team can mount the most effective defense possible. They can also negotiate with various agencies like the Department of Justice, FBI, HHS-OIG, and CMS who may be involved in the probe.

Potential Defenses in Health Care Fraud Cases

There are various defenses your legal team may use to fight health care fraud allegations:

• Good faith – You acted in good faith based on a reasonable interpretation of unclear rules and regulations.
• Lack of intent – The government cannot prove you knowingly and willfully committed fraud.
• No knowledge – You were unaware of illicit conduct by rogue employees or others involved.
• Compliance program – Your organization had an adequate compliance program and controls in place.
• Medical necessity – Services provided were medically necessary in your professional judgment.
• Harmless errors – There were only minor record-keeping discrepancies that did not harm payers.

An effective defense will likely combine multiple strategies to undermine the prosecution’s case. Your legal team can advise you on which approach gives you the best chance of success.

The Bottom Line

Receiving a target letter is serious business, but it does not have to be the end of the world. Smart legal strategy can often resolve these complex cases without criminal charges or with minimal consequences. Listen closely to the guidance of your attorney and remain confident in asserting your rights. With persistence and preparation, the truth can prevail.