Federal Health Care Fraud Defense Lawyers in New York

A billing audit, records subpoena or interview request can raise different risks for a physician, clinic, billing company and individual employee. Start with who received the request, the agency involved and the actual response date. Preserve the complete notice and relevant records before making an explanatory submission or agreeing to an interview.

Lebedin Kofman LLP handles federal criminal defense matters in EDNY and SDNY. Request a consultation or 646 663 4430 to discuss the request and representation. Do not send patient records through the website inquiry form.

What does the federal health care fraud statute require?

18 U.S.C. 1347 addresses knowingly and willfully executing or attempting a scheme to defraud a health care benefit program, or to obtain money or property owned by, or in the custody or control of, the program through false or fraudulent pretenses, representations or promises, in connection with delivery of or payment for health care benefits, items or services. The actual scheme, mental state and connection to the program require proof.

Under 18 U.S.C. 24(b), a health care benefit program includes a public or private plan or contract affecting commerce under which medical benefits, items or services are provided. This is not limited to Medicare or Medicaid. Identify the payer and program rather than assuming private insurance rules out a federal charge.

A coding disagreement is not automatically knowing fraud

Investigators may compare claims with clinical documentation, scheduling, laboratory information or patient accounts. Counsel needs to identify the allegedly false representation and the person’s role in preparing, reviewing or submitting it. A provider identifier on a claim does not, by itself, explain who entered the data or what the person knew.

Section 1347(b) says actual knowledge of the statute or a specific intent to violate that statute is unnecessary. It does not erase the knowingly-and-willfully language in 1347(a). The distinction is between ignorance of the particular law and evidence addressing the alleged fraudulent conduct. Do not turn a billing error into a concession of fraud, or assume that calling it an error resolves the government’s evidence.

Materiality, intent and a related false-statement count

A fraud theory must identify a meaningful falsehood or concealment, not simply inaccurate paperwork. Materiality concerns whether the alleged fact is capable of influencing the program’s decision. Actual reliance or successful payment is not required. Evidence may include the coverage rule, claim representation, clinical necessity, decision process and what the payer was told. Payment alone does not establish truthfulness; denial alone does not negate an attempted scheme.

In United States v Palin, the Fourth Circuit treated concealed lack of medical necessity as material to insurer payment. That is an illustrative decision from another circuit, not binding Second Circuit authority. A payer’s knowledge of a test’s name or frequency differs from knowledge that it was unnecessary. Criminal fraud and civil False Claims Act theories should not be collapsed into one test.

Fraudulent intent must also be connected to the person charged. Contemporaneous coding advice and documented efforts to correct a genuine misunderstanding may support a different inference from knowingly changing records after explicit warnings to obtain payment. Neither a job title nor an eventual refund alone proves or disproves the required mental state. Compare who knew what, when, and what claim they caused to be submitted.

Section 1035 separately reaches knowing and willful material false statements, concealment by the specified means, or use of false writings in a matter involving a health care benefit program and delivery of or payment for benefits, items or services. Its ordinary maximum is five years. A false answer or certification may therefore need analysis apart from a 1347 execution/attempt count.

For example, a claim falsely stating an unperformed service ties the service record to the representation and payment decision. A disputed code supported by contemporaneous payer guidance raises different knowledge and materiality questions. A knowingly fabricated audit response can create a separate false-statement issue even if the original claim’s fraud theory is contested. These are hypothetical element comparisons, not firm case results.

Criminal, civil and administrative matters can differ

The DOJ health care fraud guidance addresses coordination among criminal, civil and administrative authorities. It is government policy guidance, not a replacement for the statute or a promise about how an individual case will be handled. A payer response should not be drafted in isolation where the same records may be part of a criminal inquiry.

Practical evidence questions in a claims investigation

The defense may need claim-level analysis rather than a narrative about the practice generally. Identify the service date, patient encounter, rendering provider, submitted code, documentation, payer rule in effect and payment or reversal. Keep the original versions and audit history; a later amendment may not show what existed when the claim was submitted.

• Who controlled provider credentials and claim-submission access?
• Were services provided, and what records corroborate attendance and performance?
• How did code selection, supervision and clinical review operate at that time?
• What written advice, payer guidance, training and correction records existed?
• Does the claims sample represent the allegations, and are estimates being extrapolated?

Do not alter charts or reconstruct missing records as if they were contemporaneous. Tell counsel about incomplete documentation and any corrections already made. Technical or clinical experts may help evaluate disputed evidence, but selecting them should follow the actual issue and preserve appropriate confidentiality.

Three hypothetical issues requiring careful investigation

A code entered by someone else

A claim uses a physician’s identifier, but several staff members had system access. Access logs, workflow and review records may illuminate who entered or approved it. Shared access is neither automatic guilt nor an automatic defense; the relevant conduct and mental state still need to be established.

A service described as never performed

A payer spreadsheet flags a missing encounter. Scheduling, contemporaneous notes and other source records may support or contradict that assertion. Do not respond by inventing a replacement note. Counsel should examine the exact claim and the reliability of the evidence.

A practice-wide estimate from a small sample

A demand projects a large amount from selected claims. The defense should examine sample selection, calculation, claim differences and what the estimate is intended to prove. A repayment calculation and a criminal loss allegation may present different legal questions.

Representation of the organization and individuals

A clinic’s lawyer does not automatically represent every owner or employee. Tell counsel who seeks advice, who owns the records, who received notices and whether interests may differ. An employee should understand the scope of any proposed interview and representation before assuming the organization’s response also addresses personal exposure.

Following an employer’s instruction does not create a blanket federal health care fraud immunity. Assess the actual knowledge, conduct and applicable law. Do not coordinate accounts, coach witnesses or delete communications to make the record look consistent.

Penalties and related allegations

Section 1347 ordinarily permits up to ten years’ imprisonment; the ceiling rises to twenty years if the violation results in serious bodily injury and to any term of years or life if it results in death. These are statutory ceilings tied to the conviction and circumstances, not a prediction from the amount on an audit letter. Attempt or conspiracy under 1349 carries the penalties of its object offense.

Counsel should separately assess any other charged statute, sentencing issues, restitution or forfeiture demands, licensing notices and program participation consequences. A negotiated civil payment does not by itself establish that criminal exposure has ended. Obtain the actual terms and scope of any resolution.

What to do with a subpoena or search

Preserve every page, rider and covering letter; record service and response dates. Identify the custodians, systems and records within the request. Counsel can assess lawful scope, privilege, collection and response obligations. Do not assume a deadline is extended because you contacted a lawyer, or remove material from a system after receiving a preservation demand.

A charge may lead to appearances, release decisions, discovery, motions, negotiations or trial, followed by sentencing if there is a conviction. The federal courts’ criminal-case overview describes that general sequence. The next step in an uncharged investigation may be different.

Discuss the actual federal matter

Provide the district, agency, request, next date and the individual or entity seeking representation. The firm’s Manhattan and Lynbrook offices are distinct from EDNY and SDNY court locations. Read the federal defense hub, white-collar guidance and Russ Kofman’s profile.

Frequently asked questions

646 663 4430 or request a consultation. Contact does not create an attorney-client relationship. Prior results do not guarantee a similar outcome. Legal references checked October 7, 2026.