Plea Bargaining in Medicare Fraud Cases
Plea bargains (or plea agreements) are agreements between defendants and prosecutors, whereby the defendant agrees to plead guilty to some or all of the criminal charges filed against him or her in exchange for concessions from the prosecutor, such as reduced punishments.
Medicare fraud is a form of health care fraud, which is a white collar crime and is committed when a person or organization defrauds the health care system in order to obtain funds or services. Medicare fraud can involve health care providers billing for medical services that were not performed or not medically necessary, billing for the same procedure multiple times, upcoding, billing for phantom patient, accepting illegal kickbacks, or other fraudulent conduct. Medicare Fraud is the most common form of health care fraud that is prosecuted.
Plea Bargaining in Medicare Fraud Cases
First, it is important to understand that the majority of criminal cases are resolved by plea bargaining. The majority of defendants choose to accept a plea agreement to avoid the uncertainties of a trial and the prospect of harsh sentencing that can follow from a jury conviction. Second, there are special considerations that affect what terms can be offered in plea agreements for charges for Medicare fraud.
The Health Care Financing Administration, United States Department of Health and Human Services (HHS) has the power to, and in some cases the duty to, impose administrative sanctions on a provider or person who committed fraud against the Medicare program. Plea bargains have the potential to affect these administrative remedies.
- Provisions of the Social Security Act enable the Secretary of HHS to deny payment under the Act upon determining that a provider or person has committed fraud or abuse against the Medicare program.
- After a determination of fraud, Section 1903(i)(2) of the Social Security Act prohibits the provider or persons from Federal financial participation, meaning they are barred from receiving Medicaid payments for services performed.
- The Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977 requires the Secretary of HHS to suspend program participation for a physician or individual practitioner convicted of a criminal offense involving the Medicare or Medicaid programs. Suspension from program participation is immediate and applicable to both programs.
Possible administrative sanctions must be addressed before a plea deal may be struck. The United States Attorneys’ Manual states: “Since the administrative sanction would generally be effectuated after any criminal proceedings, plea bargains that include commitments to forego or restrict administrative remedies, which the HHS may elect to pursue under the aforementioned provisions, should be rare and made only after obtaining prior explicit approval from the Criminal Division.”
A compelling reasons for a defendant to accept a plea bargain is to protect their ability to receive payments for medical services from the Medicare and Medicaid programs. However, plea deals that shield a provider from administrative sanctions that may have otherwise been imposed are to be rare and require prior approval from the Criminal Division.
Your white collar criminal defense attorney can help you decide if a plea bargain is in your best interest and advocate on your behalf in negotiating the terms of the plea bargain.
Hire A Former Prosecutor to Defend You
Ashley D. Adams is a former fraud prosecutor with the United States Attorney’s Office. She understands how prosecutors operate, the best tactics to negotiate a favorable plea agreement, and how to get criminal charges dropped or dropped to lesser charges.
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