Taking Medicare Fraud Seriously in the Home Health Care Industry

February 23rd, 2018 by Tad Nelson in White Collar Crime

One of the more high-profile white collar crimes pursued by federal prosecutors is Medicare and Medicaid fraud. Since establishing its Medicare fraud task force more than 10 years ago, the U.S. Department of Justice has successfully prosecuted hundreds of individuals for illegally billing the government more than $1.3 billion. A good deal of this illegal billing centers on the home health care industry, where many agencies improperly refer senior citizens who do not meet Medicare’s strict eligibility requirements for such services.

Texas Court Overturns Fraud, Conspiracy Convictions Due to Insufficient Evidence

Recently, a federal appeals court with jurisdiction over Texas overturned the convictions of two women charged in connection with alleged Medicare fraud in Louisiana. The case serves as an important rebuke to prosecutors, who in their zeal to combat fraud sometimes fail to adhere to the most basic tenet of due process–i.e., the need to prove a defendant’s guilt beyond a reasonable doubt.

Health care fraud cases are inherently complex, so here is simplified explanation of what happened. The defendants are the owner and medical director for a home health care agency. The medical director was responsible for certifying eligible patients to Medicare. Certification requires an in-home visit with the patient. The medical director subcontracted this function to a nursing agency, which is permissible under Medicare regulations.

Federal investigators learned that employees of this agency had “recruited Medicare beneficiaries in exchange for incentives” including cash and other bonuses. Prosecutors alleged many of these beneficiaries were not actually eligible. The owner and medical director were specifically charged with fraud and conspiracy to commit fraud with respect to at least two patients. A jury convicted the defendants on conspiracy and fraud related to one patient.

The U.S. Fifth Circuit Court of Appeals tossed both convictions, however, citing a lack of evidence. Although the Justice Department produced 18 witnesses at trial, many of whom worked at the agency and admitted to committing fraud themselves, none could “provide direct evidence of their alleged co-conspirator’s actions because the witnesses never acted with the defendants to commit the specific charged conduct.” Instead, the jury simply inferred the owner and co-director agreed to commit Medicare fraud.

That was not good enough, according to the Fifth Circuit. The government’s case largely came down to the testimony of another medical director who testified he falsely certified patients. But this doctor had no connection with the medical director charged in this case. In fact, they never worked together or knew each other. So the mere fact they held a “similar position” was not enough to infer the defendant’s guilt.

As for the specific patient who was falsely certified, the Fifth Circuit said the government failed to prove the medical director or the owner knew the patient was ineligible. They relied on representations made by a nurse. While this may constitute “patient negligence,” the Fifth Circuit said it did not rise to the level of criminal fraud.

A Galveston White Collar Crimes Lawyer Can Help You Fight Fraud Charges

A health care fraud conviction can land you in federal prison for several years, perhaps decades. This is why it is critical to ensure the government proves its case beyond a reasonable doubt. If you have been charged with fraud, the best thing you can do to help yourself is contact a qualified Houston white collar criminal defense attorney. Contact the Law Offices of Tad Nelson & Associates at  (281) 280-0100 today if you need to speak with someone right away.

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