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A (Very) Basic Overview of Health Care Fraud Sentencing in Federal Court

by Laura A. Perkovic

A lawyer defending a federal health care fraud case can give a ballpark estimate (but certainly not a promise) of what a client might face in sentencing for the crime. This is because in federal Medicare and Medicaid fraud cases, the sentence is determined in large part by the alleged dollar value of the false or fraudulent claims. This article will explain the very basics of criminal sentencing in federal health care fraud cases.

Statutory Minimum and Maximum: The Floor and Ceiling

The statutory maximum (ceiling) is often set on a crime-by-crime basis. Sometimes, a crime can also involve a mandatory minimum (floor). If no mandatory minimum is stated, a client’s floor could be as low as probation. To give you an idea of the breadth of sentencing possibilities just in the area of health care fraud offenses, some examples are shown below.

health-care-fraud-sentencing

The actual sentence will land between the ceiling and the floor; and in deciding this, Judges are guided by statutes and the U.S. Sentencing Commission Guidelines, commonly referred to as just “the Guidelines.”

The Sentencing Guidelines:

The basic reference tool for determining a sentence under the Guidelines involves a chart called the Sentencing Table. Here is an abbreviated version of the sentencing table, which is daunting at first glance. The client’s criminal background and the individual facts of the case will determine the sentence.

health-care-sentencing-chart

All Health Care Fraud charges start at a Base Offense Level 6 (shown above). If the client has no criminal background, he or she will find level 6 in the “Criminal History Category I” column (third column shown above), and will thus serve a sentence of 0-6 months as a starting point for a Health Care Fraud conviction. That falls in Zone A, making the client eligible for probation. However, if the client has a recent criminal conviction, he would instead find level 6 in the “Criminal History Category II” column, and would serve 1-7 months as a starting point. That falls in Zone B, making the client eligible for probation with confinement.

Other case-specific factors will either increase or decrease the sentence vertically from the starting point, while the client remains in the same column. For example:

  1. The offense level will increase vertically based on the dollar amount billed to health care benefit programs (e.g. Medicare, Medicaid, Tricare).
  2. The offense level will increase vertically if over $1M was billed to government health care programs (e.g. Medicare, Medicaid, Tricare).
  3. The offense level will increase vertically if the client served as an organizer or leader of a health care fraud conspiracy.
  4. The offense level will decrease vertically if the client served a minor role in the conspiracy.
  5. The offense level will decrease vertically if the client accepts responsibility or shows remorse for the offense.

These Guideline factors are not mandatory, but courts follow them and when they do, the sentences are presumed to be reasonable. There are other statutory factors that courts may take into consideration to justify a departure from the Guideline sentencing range, in addition to other exceptions and motions that can affect the final sentence.

Experienced defense counsel should be familiar with the health care industry, medical billing and records, clinical operations, and the domino effect of a criminal accusation on all other aspects of a medical professional’s personal and professional life.

Chapman Law Group has extensive experience in health care fraud cases. Attorney Laura Perkovic is a former health care fraud prosecutor, with additional years of experience involving medical practice management, compliance, and provider billing; in addition to criminal defense. Ron Chapman II has earned the reputation as a highly-respected and aggressive criminal defense attorney in the area of health care fraud defense, and more. The Chapman Law Group health care fraud team handles cases in federal and state courts throughout the nation.