Defending Against Allegations of Widespread Healthcare Conspiracies

Defending Against Allegations of Widespread Healthcare Conspiracies

Healthcare fraud and abuse are serious issues that cost taxpayers and patients billions of dollars each year. However, in an effort to crack down on fraud, overzealous prosecutors sometimes bring conspiracy charges that allege complex, widespread schemes without sufficient evidence. As a defense attorney, it is critical to carefully scrutinize the allegations and hold the prosecution to its burden of proof.

One key defense strategy is to argue there is no direct evidence of an agreement between the defendants to commit fraud. Conspiracy requires evidence of an actual agreement, not just parallel conduct. If 10 healthcare providers all engaged in similar fraudulent billing practices independently, that is not itself proof they conspired together. You should scrutinize the documentary evidence and testimony for signs of coordination and agreements between the defendants.

For example, in U.S. v. Halper, prosecutors alleged an elaborate conspiracy between a nursing home CEO and employees to falsify staffing records. However, the evidence may show a lack of coordination and agreements between defendants. The defense should emphasize there is no “smoking gun” but rather unjustified inferences stacked on top of one another.

You should also closely analyze whether the alleged conspiracy makes logical sense. Conspiracy theories often fail common sense tests. In particular, widespread conspiracies involving large numbers of participants are inherently more likely to fail due to defection, leaks, and mistakes. The prosecution in Halper alleged involvement of both high-level executives and low-level staffers. The defense should emphasize the implausibility of both top executives and line staff coordinating smoothly together in lockstep for years without leaks or errors.

Instead, it may be more believable that staff acted independently out of self-interest to cover up staff shortages. The defense can thus argue individual defendants acted alone, there was no coordination between levels of employees or facilities, and that inferring an overarching conspiracy from isolated incidents is unreasonable.

Prosecutors frequently use the conspiracy charge to lower the burden of proof by claiming defendants are jointly responsible for others’ acts. You should scrutinize whether the evidence truly shows interdependence between the participants, or merely parallel conduct. For example, in U.S. v. Bernal, the defendant was accused of paying kickbacks to recruit patients while his “co-conspirators” submitted fraudulent claims. However, there may be no evidence Bernal coordinated with those who submitted the claims. The defense should argue there were two separate, independent fraud schemes rather than one interlinked conspiracy.

Finally, you should pay close attention to the timeframe of the alleged conspiracy and argue that the prosecution is arbitrarily grouping together unrelated events over an unreasonable length of time. Conspiracies require proof of an agreement during a specific timeframe. However, particularly with allegations of healthcare billing fraud, prosecutors may claim ongoing schemes spanning many years based on sporadic evidence.

The defense should scrutinize the evidence closely to identify gaps in time and argue that during those periods there was clearly no conspiracy. You can argue that while there may be evidence of certain fraudulent acts, connecting them together into one long-running conspiracy is speculative. For example, the alleged conspiracy durations in U.S. v. Perez, spanning “various times” between 2017-2022, and 2014-2021 in Halper, raise skepticism. The defense should argue that the government cannot simply claim one ongoing conspiracy across multiple years based on a handful of acts.

In sum, by carefully scrutinizing the available evidence, applying common sense, and requiring the prosecution to meet its burden of proof on every element, savvy defense counsel can frequently poke holes in allegations of widespread conspiracies in healthcare cases. Rather than getting overwhelmed by an avalanche of inference upon inference, you should dissect the timeline, communications between defendants, acts committed by each individual, and question the plausibility of complex schemes alleged. This can lay the groundwork for defeating exaggerated allegations of healthcare fraud conspiracies.