DOJ Target Letters in Healthcare Fraud Investigations: Strategic Considerations

DOJ Target Letters in Healthcare Fraud Investigations: Strategic Considerations

Receiving a target letter from the Department of Justice can be an intimidating and stressful experience. These letters notify you that you are under investigation for potential criminal violations related to healthcare fraud. While concerning, a target letter does not mean you will necessarily be criminally charged. There are strategic steps you can take to respond appropriately and try to resolve the investigation without charges. This article provides an overview of DOJ target letters, strategic considerations when responding, and proactive steps to take if you receive one.

What is a DOJ Target Letter?

A target letter is a notification from the Department of Justice (DOJ) that you are under investigation for potential criminal violations. These letters are often sent in healthcare fraud investigations conducted by the DOJ Criminal Division’s Fraud Section or by local U.S. Attorney’s Offices. The letter identifies you as a “target” of the investigation – meaning prosecutors believe there is substantial evidence you have committed a crime.

While being identified as a target is concerning, it does not mean you will be criminally charged. Oftentimes prosecutors send target letters to pressure individuals to cooperate with the investigation. However, ignoring a target letter is unwise. The letter means prosecutors are actively building a case against you.

What Should I Do After Receiving a Target Letter?

The first step is do not panic. While being under federal investigation is frightening, responding appropriately can mitigate the risks. Here are some strategic considerations when responding to a healthcare fraud target letter:

• Consult with an experienced white collar defense attorney as soon as possible. An experienced attorney can strategically guide you through the process. They will advise you on whether to meet with prosecutors and how to interact with the DOJ.
• Do not speak to anyone about the investigation without your attorney present. Prosecutors often interview targets, but you have the right to have counsel present.
• Begin gathering and preserving relevant documents. Your attorney can help identify key documents prosecutors will seek.
• Consider hiring separate counsel for your business if applicable. There are often conflicts between individual and company interests.
• Assess the risks of criminal prosecution. Your attorney can review the evidence and help determine your actual criminal exposure.
• Explore your options. In some cases, it may be in your best interest to invoke your 5th amendment right against self-incrimination. In others, you may want to cooperate with prosecutors.
• Develop a proactive response strategy with your legal team. Instead of just reacting, develop a comprehensive plan to get ahead of the investigation.

Proactive Strategies for Responding to a Target Letter

While each case is unique, below are some proactive strategies to consider when responding to a healthcare fraud target letter:

Seek an Open Dialogue with Prosecutors

Often the best approach is to seek an open dialogue with prosecutors. Your attorney can meet with the Assistant U.S. Attorney (AUSA) handling the case to better understand the government’s position. With this insight, you can respond appropriately to the government’s concerns. This dialogue can potentially lead to a declination of prosecution if you can convince prosecutors you did not intentionally commit fraud.

Consider a White Collar Criminal Defense Attorney Proffer

Your attorney may advise providing prosecutors with a proffer letter detailing defenses to the allegations. This written letter outlines all likely defenses without requiring you to meet personally with prosecutors. It gives prosecutors key information to consider when deciding whether to bring charges.

Assemble a Response Team

Given the complex nature of healthcare fraud investigations, it is wise to assemble a response team. This team may include your white collar defense attorney, separate counsel for your business, forensic accountants, healthcare billing experts, and compliance professionals. This team can quickly respond to prosecutor inquiries and provide informed perspectives.

Conduct an Internal Investigation

An internal investigation allows you to uncover facts and assess risks. Your response team can interview employees, review billing records, and identify any inappropriate conduct. Presenting the results of an internal investigation to prosecutors shows you are taking the allegations seriously.

Consider Voluntary Disclosure

If your internal investigation reveals wrongdoing, consider voluntary self-disclosure to the DOJ. Admitting errors can gain credibility with prosecutors and potentially lead to more favorable treatment.

Initiate Compliance Program Enhancements

Highlighting improvements to your compliance program demonstrates your commitment to following healthcare billing laws going forward. This can help convince prosecutors you do not pose an ongoing fraud risk.

Explore Civil Resolution Options

Your attorney may approach prosecutors about resolving the case through a civil settlement instead of criminal prosecution. Civil resolutions typically involve paying a monetary settlement without needing to plead guilty to criminal charges.

What are the Consequences of a Criminal Healthcare Fraud Conviction?

If prosecutors ultimately decide to pursue criminal charges and obtain a conviction, the consequences can be severe. Potential penalties for healthcare fraud may include:

• Prison time. Healthcare fraud involving Medicare/Medicaid can be prosecuted under federal felony statutes with up to 10 years in prison per offense.
• Criminal fines. Criminal fines upwards of $250,000 per offense are possible.
• Asset forfeiture. Prosecutors may seize assets allegedly obtained from fraudulent proceeds.
• Civil fines. Healthcare fraud can also trigger civil False Claims Act lawsuits with additional financial penalties.
• Exclusion from federal healthcare programs. A conviction often leads to exclusion from Medicare, Medicaid, and other federal programs.

A criminal conviction can truly jeopardize your professional career and financial well-being. These severe consequences demonstrate the importance of retaining counsel to respond strategically to a healthcare fraud target letter.

How Can I Reduce My Chances of Receiving a Target Letter?

The best defense is a good offense. Taking proactive compliance steps can help prevent ever receiving a target letter:

• Implement an effective healthcare compliance program. Conduct regular audits and training to identify and prevent fraud risks.
• Perform regular internal audits of billing practices to identify any issues early.
• Maintain detailed documentation for medical necessity and billing decisions.
• Stay updated on billing laws and regulations to avoid unintentional violations.
• Respond promptly to payor audits and inquiries to avoid appearing uncooperative.
• Ensure you have adequate compliance staffing and oversight of billing operations.
• Implement a system for employees to report concerns about potential misconduct.

While not always preventable, following these best practices can greatly reduce your chances of prosecutors ever opening an investigation against you.

Take a DOJ Target Letter Seriously But Do Not Panic

Receiving a target letter is jarring but responding appropriately can mitigate risks. Hiring experienced white collar counsel is essential to engage prosecutors and explore your options. With strategic guidance, it is often possible to resolve healthcare fraud investigations without criminal charges. A proactive response also demonstrates you are committed to compliance going forward.

While being under federal investigation is frightening, taking the right steps with experienced counsel by your side can lead to the best possible outcome.