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& Medical Provider Attorneys

DOJ Intends to Increase Healthcare Fraud Penalties By Almost 100%

healthcare fraudThe Department of Justice (“DOJ”) recently announced that it intends to increase healthcare fraud penalties under the False Claims Act (“FCA”) on claims assessed after August 1, 2016.

DOJ’s Justification For The Increase

FCA penalties can already be high since penalties are assessed per-claim. Each false claim presented to the government can be a separate violation. The DOJ’s Interim Final Rule would increase the minimum per-claim penalty from $5,500 to $10,781 and maximum per-claim penalty from $11,000 to $21,563.

This is a steep increase over 96%. While there was a 10% cap on the amount the penalties could increase, that law was amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“2015 Act”). The 2015 Act also included a one-time “catch up provision” requiring the first increase be based changes in the consumer price index since the year the penalties were established.

What The Increase Means To Healthcare Providers

This increase could incentivize whistle-blowers to identify false claims because the whistle-blower may be able to keep a percentage of the money recovered. Healthcare providers billing the government need to ensure that all their practice’s policies and procedures adhere with federal and state regulations. Proactive and preventive measures are the best way to stay out of the government’s cross hairs for fraud.

How To Ensure Federal and State Compliance

We can help. Our attorneys have extensive experience in analyzing and bringing into compliance healthcare providers’ policies and procedures. We’ve helped hundred of providers – from small, independent providers to large national corporations ensure compliance with regulations such as the Anti-Kickback Statute and Stark. Contact DJ Jeyaram at or 678.325.3872 or Jonathan Anderson at

Free Introductory Home Health Visits Don’t Violate Anti-Kickback Law

Anti-Kickback StatuteInspector General: No Kickback violation for free home health introductory visits

The Office of the Inspector General issued an advisory opinion clearing the way for home health providers who provide “introductory” home visits to individuals who eventually become their clients. The OIG advised that home healthcare providers who contact  patients after being selected by that patient and provide information to those patients about their services, do not violate the federal Anti-Kickback statute.

The Federal Anti-Kickback law makes it a criminal offense to knowingly and willfully offer, pay, solicit or receive anything of value in exchange for inducing or rewarding referrals of items or services reimbursable by a Federal health program

The OIG’s office stated that the “primary purpose of the Introductory Visit is to facilitate the patient’s transition to home health services in an effort to increase compliance with the post-acute treatment plan.” In addition, the OIG”s noted that during the “Introductory” visit, the health care provider ‘”does not provide any type of  any federally reimbursable diagnostic or therapeutic services during the Introductory Visits,” which occur where a patient is receiving care whether it’s a physician’s office, hospital or personal home. Further, the home health provider is not involved in any way in the patient’s selection process and “Introductory Visits” do not provide any actual or economic benefit to the patients. .

It’s important to reiterate, that healthcare providers should not contact the patient prior to receiving notification from the  patient that they have been selected nor can the “Introductory Visits” be a covered service under Medicare or Medicaid, or reimbursed by third-party payors. These actions could violate the Anti-Kickback statute.

To read the full opinion, click here.

For more information, please contact Kimberly Sheridan at 678-708-4703.

Avoid Being A Target Of HIPAA Audits | Here’s How

HIPAA AuditPhase 2 OCR HIPAA Audits Are Here – What Providers Should Do to Prepare

The Office of Civil Rights (OCR) has taken the first step in the next round of HIPAA audits.

OCR has begun to send out surveys in order to collect information from providers, health plans, and clearinghouses in preparation for phase 2 of their HIPAA audits. From the hundreds of entities receiving surveys, OCR will select over 200 providers and over 100 health plans to be audited.

It is more important than ever to make sure that you have complied with the HIPAA Rules. Here are the top 3 areas every provider should address:

1. When was the last time you conducted a Risk Assessment? If it has been more than a year or two, you should conduct a comprehensive Risk Assessment now.

If you are a small to medium sized office you can take advantage of HHS’s security risk assessment tool available on their website: SRA Tool

2. Have you recently reviewed your HIPAA policies and procedures to ensure that they are up to date and are being followed? There are three main areas that need to be addressed in your policies: Security Standards, Privacy Standards and Breach Notification Standards.

    • Security Standards – focus on how you keep Protected Health Information (PHI) secure, whether it is stored and/transmitted electronically or in some other form. Your practice must have appropriate safeguards in place (for example, requiring the use of secure passwords to access electronic health records and encrypting all devices that might contain e-PHI).
    • Privacy Standards – do you conduct periodic trainings for personnel regarding privacy practices? Do you have records that such trainings have been completed by all personnel? Is your Notice of Privacy Practices current and made available to your patients?
    • Breach Notification Standards – do you have a policy in place that outlines the steps for identifying and reporting a breach? Such a policy should address steps to take to investigate and contain the problem, as well as a means for identifying how many people were affected, who those individuals are, and how to send out breach notices. Keep in mind that under the Breach Notification Rule, providers must provide notice of a breach within a certain time frame. Your procedures for responding to a breach should allow for adequate time to meet this deadline.

3. Keeping track of your Business Associates and Business Associate Agreements – During the audit process OCR might ask for a list of business associates and their contact information. All providers should have this readily available. It is also important to have written Business Associate Agreements that are up to date and can be made available to OCR upon request.

If you have any questions about any HIPAA requirements or the approaching OCR audits our attorneys can help. Please contact Danielle Hildebrand at


The information on this site should not be construed as formal legal advice and is not intended to create or constitute a lawyer-client relationship.


DCH’s “Engagement Process” Now Official

DCH Policy As of July 2015, the Department of Community’s Health’s “Engagement Process” became an official part of its Policy and Manual, section 402.5(b).

The “Engagement Process” offers providers an opportunity to discuss findings of an audit or other proposed adverse action and to possibly resolve the matter prior to any request for an Administrative Review during an Engagement Conference.

However, we strongly advise you to contact an attorney prior to requesting an Engagement Conference to help ensure the best possible outcome. 

Here is what you need to know:

  • PURPOSE: The purpose of the Engagement Conference is to discuss a proposed adverse action “with the goal of informally resolving the matter.”
  • WHO INITIATES: You. A provider may request an Engagement Conference following receipt of Initial Findings of Notice of Proposed Adverse Action letter
  • PROVIDER TIME DEADLINE: This request must be in writing within seven (7) calendar days of receipt; and submitted to
  • DCH TIME DEADLINE: The Engagement Conference must be held with twenty-one (21) calendar days of the receipt of the Request.
  • WAIVER: If you do not participate in the Engagement Conference and fail to provide the Department prior written notice of your absence, you waive your right to an Engagement Conference. Notice should be submitted to This waiver does not preclude you from requesting an Administrative Review.
  • SETTLEMENT:“The Engagement Conference is considered settlement talks, and therefore, is not admissible in any pending or future proceeding, including Administrative Review or Administrative Hearing.” This includes conduct during conferences, notes, and correspondence.
  • ACCEPTANCE/REJECTION: You have seven (7) calendar days from the date of the Conference to accept or reject the offer in writing.
    • Acceptance must be in writing and waives your right to an administrative review.
    • If you reject the offer, you have the Right to Request an Administrative Review pursuant to Policy and Procedures Manual Sections 402.6 and 505.

Remember to print a copy of any communication you have with DCH and always ask for a “read receipt” when you send an email to DCH.

If you have received a Proposed Adverse Action from the Department, please contact Kimberly Sheridan at or 678-708-4703 for assistance.

Former DCH Attorney Joins Jeyaram & Associates

Screen shot 2015-06-26 at 2.55.32 PMMr. Harrison Kohler joins Jeyaram & Associates as counsel. Mr. Kohler brings extensive criminal defense and administrative hearing experience to the firm. He represented the Department of Community Health (DCH) for nine years in both administrative hearings and negotiations with attorneys for Medicaid providers.

Prior to joining DCH, Mr. Kohler served as an Assistant Attorney General, which included 10 years as a prosecutor in the Medicaid Fraud Control Unit. During that time, he had 90 jury trials, including both criminal and civil, in 15 different superior courts and two federal districts in Georgia.

Further, Mr. Kohler has orally argued approximately 50 appellate cases. He successfully argued Georgia v. McCollum, 505 U.S. 42 (1992), in the United States Supreme Court. In 1996 the Supreme Court Historical Society named Georgia v. McCollum as one of the most significant oral arguments heard by the United States Supreme Court between the years 1955 and 1993.

Prior to pursuing a legal career, Mr. Kohler  served three years in the United States Army, including a year in Vietnam. He was awarded the combat medical badge and the Army Commendation Medal with Oak Leaf Cluster. Mr. Kohler has also been recognized by his peers as he’s earned the AV Peer Review Rating, which identifies a lawyer with “very high to preeminent legal ability, is a reflection of the firm’s expertise, experience, integrity and overall professional excellence.”

Please help us welcome Harrison to the firm!

Physicians’ Compensation For Certain Referrals Could Violate Anti-Kickback Statue

Anti-KickbackOIG Reminds Physicians That They Will Be Held Liable For Illegal Payments Under The Anti-kickback Statute

On June 9, the Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert warning against potential liability for physicians who enter into certain financial arrangements with healthcare institutions.

The Fraud Alert states that “if even one purpose of the arrangement is to compensate a physician for his or her past or future referrals” the compensation arrangement would violate the federal Anti-kickback statute.

The Fraud Alert discussed a recent settlement regarding an arrangement between several physicians and a healthcare institution. It emphasized that the following factors resulted in an OIG determination that there was improper remuneration:

  • Payments to physicians took into account the physician’s volume or value of referrals and did not reflect fair market value for the services performed
  • Physicians did not actually provide the services called for under the arrangement
  • The arrangement relieved the physician of a financial burden that such physician would have otherwise incurred, e.g., a healthcare institution paid for the physician’s office staff at his or her practice

Although the Fraud Alert does not change any existing laws, it is a reminder that physicians (not just the hospitals) will be held liable for illegal payments. Physicians should heed OIG’s warning and ensure that arrangements with healthcare institutions do not violate any laws. All arrangements must not only comply with the federal Anti-kickback statute, but also other fraud and abuse laws such as the Stark Law, the Civil Money Penalties Law (CMP Law), and the state law Stark and Anti-kickback counterparts.

The Special Fraud Alert can be found here.

If you are a physician with questions about a current or proposed arrangement with a healthcare institution, please call Danielle Hildebrand or DJ Jeyaram at 678-325-3872 for legal counsel.

What Physicians Need to Know About the Stark In-Office Ancillary Services Exception

Stark LawThe Federal Stark Law generally prohibits physicians from referring Medicare/Medicaid payable Designated Health Services (DHS) to any organization in which they have a financial interest, including their own medical practice. Because the Stark prohibition applies when physicians refer their patients within their own practice to obtain DHS, such an arrangement must meet the requirements of an exception in order to comply with the law.

If you are a physician practice that intends to offer to your patients related services which are also DHS, for example, imaging or laboratory services, you might be able to rely upon the In-Office Ancillary Services (IOAS) exception. This exception is designed to protect the provision of Designated Health Services that are truly ancillary to the medical services being provided by your physician practice.

In order to take advantage of this exception, your practice must meet three specific requirements related to

  1. supervision
  2. location
  3. billing

Additionally, multi-physician practices must be considered a “group practice” as provided in the Stark Law.

Physicians providing MRIs, CT and PET scans through their medical practices must also provide a disclosure and notice to patients. Such notice must be in writing and provided at the time of the referral. The notice must disclose to the patient that he or she may obtain those services from other suppliers and provide a list of those suppliers in close proximity to the physician’s office.

Although this exception enables physicians to offer a number of ancillary services and still maintain compliance with the Stark Law, this exception is likely to be restricted in the future. The Department of Health and Humans Services’ (HHS) FY ‘16 proposed budget indicates that HHS intends to limit which practices may offer therapy services, advanced imaging, radiation therapy and anatomic pathology services. Only “clinically integrated” practices that demonstrate cost containment would be able to use the IOAS exception when offering such services.

Additional information on the HHS FY ‘16 Budget Proposal can be found at

If you have any questions about the IOAS exception or need legal advice with respect to offering ancillary services through your practice please contact DJ Jeyaram at or Danielle Hildebrand at

Medicaid Fraud Investigations Continue But With Few Indictments

Medicaid FraudMedicaid Fraud Control Units (MFCUs) are responsible for investigating and prosecuting Medicaid provider fraud and patient abuse and neglect.  As part of its Medicaid plan, each State must establish a MFCU.  These Units are funded by both the Federal and State government with the Federal government reimbursing about 75% of the operating costs. MFCUs receive their referrals for investigation from a wide array of sources: program integrity divisions of the State Medicaid agencies; anonymous tips; whistleblowers; audits; and adult protective service agencies.

Each spring, the U.S. Department of Health and Human Services, Office of Inspector General, publishes an Annual Report summarizing the statistical data from the investigations and prosecutions conducted and reported by the 50 MFCUs nationwide. According to this Annual Report, in 2014, MFCUs reported 1,318 criminal convictions involving Medicaid providers; three-quarters of these convictions were for fraud. Recoveries in the criminal cases were close to $300 million, and 1,337 providers were excluded from Federal health care programs as a result of criminal conviction.

Out of the more than 1,000 criminal convictions:

  • 413 were Home Health Care Aides
  • 129 were Certified Nursing Aides
  • 64 were Physicians or Doctors of Osteopathy
  • 56 were Counselors/Psychologists
  • 33 were Durable Medical Equipment Suppliers

Nationwide, MFCUs investigated 13,192 cases of Medicaid Fraud but only indicted 1, 185 cases- roughly, 10%.  Of the 1,185 indictments, 956 resulted in convictions, almost 100% conviction rate.   From this data, it appears as if the trend in investigating often but indicting infrequently continued from 2013 to 2014 and that the high conviction rate also continued.

What about in Georgia?  Georgia MFCU was even less reluctant to indict than the nationwide trend but enjoyed the same success rate with convictions:  410 fraud investigations; 4 indictments for fraud and only 9 convictions.

If you are a Medicaid Provider, you very well may find yourself being investigated for fraud, but stay calm and call an experienced healthcare attorney. Remember, you have a very, very small chance of actually being indicted.

If you do  receive a subpoena or phone call from the Georgia Medicaid Fraud Unit, Jeyaram & Associates can help. Contact Kimberly Sheridan at or 678.325.3872.


What To Do If You Receive A Medicaid Fraud Subpoena In Georgia

medicaid fraudThe Georgia Medicaid Fraud Control Unit (MFCU) investigates and prosecutes fraud and abuse by providers in the Georgia Medicaid program.  One of the first steps MFCU takes when it opens up a case against a provider is often the issuance of an investigative subpoena, requesting specific patient records.

Often the provider has already been looked at by the Georgia Department of Community Health’s Medicaid Program Integrity Unit which handles intake and triage of cases before turning them over to MFCU. In other words, the provider has somehow managed to get on the State’s radar, and it is serious.

Please keep the following in mind if you receive a Medicaid Fraud subpoena:

1. CALL AN EXPERIENCED HEALTHCARE FRAUD ATTORNEY. This is a highly specialized area of the law, and you need someone to represent you that has experience both in defending criminal matters AND in healthcare law. This area of law is like a hybrid car. Just like it takes gas and electric batteries to power a hybrid car, it takes knowledge of criminal and healthcare law to successfully represent a provider facing a Medicaid fraud investigation.

2. Call an attorney BEFORE you respond to the subpoena or talk to an investigator.

3. Remember: the Investigator is NOT your friend. They are doing a job, and their job is find evidence against you. We recently represented a client who was complying with a subpoena from MFCU. Five investigators showed up to get the documents. Since there was no threat of an armed suspect, one can only guess that the use of five investigators to collect documents had to be an intimidation tactic. Likewise, these investigators tried desperately to butter up the employees to get them to talk, and this was with an attorney standing there. Remember: the investigator is NOT your friend.

4. Be Polite and cooperative. If your attorney determines that the subpoena is lawful and enforceable, you have to turn over the documents requested. This can be quite labor- intensive, but you must comply and polite cooperation can only help you in establishing the tone for whatever next steps will be taken.

5. Make copies of every document and electronic file you turnover to MFCU PRIOR to turning them over.

6. DO NOT provide MFCU with anything more than what they have requested in the subpoena- not one document more. And remember, they are only entitled to the records of Medicaid members.

7. Neither you nor your employees are required to speak with the investigator unless individually subpoenaed. Have an attorney present during any interviews.

8. Don’t panic. While a MFCU subpoena should be taken seriously, in Georgia, in 2014, there were 410 Medicaid Fraud Investigations. Of those investigations, only 4 led to indictment.1 The math indicates that MFCU investigates often but indicts with much less frequency.

If you are receive a subpoena from the Georgia Medicaid Fraud Unit, Jeyaram & Associates can help. Contact Kimberly Sheridan at or 678.325.3872.

Healthcare Providers Need To Examine Billing Practices To Ensure Compliance

healthcare fraudLast month, the Department of Health and Human Services released its annual report for the Health Care Fraud and Abuse Control Program. According to the report, in 2014 more than 900 new criminal health care fraud investigations were opened by the Department of Justice. There was a slight increase in the number of criminal cases and convictions from last year, with 496 cases and 735 defendants convicted of criminal health care fraud. Civil cases alone resulted in $2.3 Billion in settlements and judgments.

The government’s press release reiterated that detecting and eliminating fraud and abuse continues to be a top priority. The government attributes its high recoveries to a change in strategy which uses real-time data analysis to detect fraud more quickly. The Centers for Medicare and Medicaid currently uses advanced analytics on Medicare fee-for-service claims. The goal of this is to detect aberrant and suspicious billing patterns which would then trigger an investigation or enforcement action by the government.

Now is the time to for Medicare and Medicaid providers to review their billing practices and financial relationships to ensure that they are compliant with federal laws. Charges against providers were made under the False Claims Act, as well as Anti-Kickback Statute, the Stark Law (Physician Self-Referral Law), and other federal laws.

The full annual report is available at

If you have any questions about the legality of your billing practices or financial relationships, please contact DJ Jeyaram at or Danielle Hildebrand at