Most federal health care fraud cases are built for two or three years before the defendant knows they exist. By the time a target letter arrives, the government has the claims data, the bank records, the billing company’s files, and statements from people who used to work for you.
What is left to decide is whether the government can prove you knew. That is almost always the whole case.
What the government has to prove
The core offense. The government must prove that you knowingly and willfully executed, or attempted to execute, a scheme to defraud a health care benefit program, or to obtain its money by false pretences, in connection with the delivery of or payment for health care. Each claim submitted is treated as a separate execution, which is why a single billing practice becomes a forty-count indictment.
What the government does not have to prove. The scheme need not have succeeded. The money need not have moved. You need not have personally submitted the claim. And you need not have known the statute existed — the government must prove you knew the conduct was wrong, not that you had read the law. Neither actual loss nor patient harm is an element of the offense, though both drive the sentence and both shape the story the government tells the jury.
False statements are charged alongside. A separate offense covers materially false statements made in connection with health care benefits — the certifications, the plans of care, the documentation supporting the claim. It carries a lower maximum than the fraud count but it requires the government to prove materiality, which the fraud count does not.
Conspiracy, and why the charge you get matters. There are two conspiracy statutes in play and they are not equivalent. The health care fraud conspiracy provision carries the same penalty as the substantive offense and requires no overt act. The general federal conspiracy statute carries a lower maximum but requires the government to prove an overt act. Prosecutors routinely charge both in the same indictment — the first for the fraud, the second for the kickbacks — and courts have held that doing so is not duplicative because each requires proof the other does not.
The kickback statute is a separate problem
Anti-kickback charges are not a variation on fraud. They are a different offense with a different structure, and they frequently survive when the fraud count does not.
The elements. Knowingly and willfully soliciting, receiving, offering or paying remuneration — anything of value, in cash or in kind, directly or indirectly — to induce referrals or the purchase of items or services payable by a federal health care program.
The one-purpose rule is what makes these cases hard. If one purpose of a payment was to induce referrals, the statute is violated even where the arrangement also served real business purposes and even where the payment was at fair market value. A legitimate rationale does not cure an illegitimate one. That said, the government must still prove the inducement purpose — the fact that a physician who was paid also happened to refer is not itself the offense, and courts have drawn a real line between paying for referrals and paying for advertising or genuine services.
Safe harbours are your burden, not theirs. There are statutory exceptions and a long list of regulatory safe harbours covering employment, space and equipment rental, personal services, discounts and more. They are affirmative defenses. The government does not have to negate them in the indictment; you have to establish one. Whether an arrangement fits inside a safe harbour is usually decided by documents drafted years before anyone was investigated.
Self-referral is a civil problem that becomes a criminal one indirectly. The physician self-referral law is strict liability — no intent required — but it is civil, and a violation standing alone is not a federal crime. It matters because it feeds false-claims exposure and because a financial relationship structured to generate referrals can become part of the criminal scheme.
Where these cases are won
On whether you personally knew. This is the fault line. Appellate courts have reversed convictions where the government proved the certifications were wrong but failed to prove the certifying physician knew they were wrong — evidence of lax practices was not enough to impute that knowledge. They have affirmed convictions where the record contained the defendant’s own statements showing intent. The difference is not the quality of the medicine; it is whether the government can put knowledge in your head with evidence rather than inference.
On medical necessity as a clinical question. A good-faith clinical judgment that turns out to be wrong is not fraud. The government answers this with billing patterns, volume, and financial arrangements rather than with medicine, and it is not required to produce patient or expert medical testimony in every case. Defending the necessity question means defending it with records and with treating physicians, early, before the government’s expert has framed it.
On what your lawyer and your billing company told you. Genuine reliance on advice can negate intent, but the defense is technical: full disclosure of the real facts, actual advice, and good-faith reliance on it. Advice given to someone else and relayed to you is a materially weaker position than advice given to you. The same logic applies to billing companies — reliance helps if you disclosed what was actually done and they made the coding decisions; it collapses if you fed them the inputs.
On the loss figure, which is the sentence. Loss is the greater of actual or intended loss, and the amount billed is treated as presumptive evidence of what was intended. It is presumptive, not conclusive. Loss cannot include what the program would have paid anyway, and there is an offset for legitimate services actually rendered — but you have to prove both. Where the government establishes that the fraud was pervasive, the burden shifts to you to identify which claims were legitimate, which is why the reconstruction work has to start early.
On the extrapolation. Where the government uses statistical sampling to project loss across a claims population, the argument is upstream of the statistics: attack the pervasiveness finding that permits extrapolation at all. If the fraud is not pervasive, the government has to prove loss claim by claim.
On preserving the record. These cases produce complex charges and contested loss findings. We litigate with the appeal in mind from the first hearing.
What happens to your license and your billing number
The prison exposure is frequently not the worst consequence.
A conviction for a program-related criminal offense triggers mandatory exclusion from federal health care programs for a minimum period, with longer minimums for repeat exclusions. Exclusion is not discretionary and it is not negotiable at sentencing. Other convictions, license actions and obstruction findings support permissive exclusion. Reinstatement is a separate application made after the period runs, and it is not automatic.
A federal felony also triggers Texas licensing-board proceedings, reporting obligations, and — where controlled substances are involved — action against a DEA registration. These proceedings run on their own timetables and do not wait for the criminal case.
Where an entity resolves civilly, a corporate integrity agreement is often the price of avoiding exclusion: a multi-year compliance regime with an independent reviewer and reporting obligations, breach of which carries its own penalties.
Three proceedings at once, and none of them waits
A federal health care fraud matter is rarely one case. It is commonly a criminal investigation, a civil false-claims action and an administrative exclusion proceeding running in parallel, and the government is not obliged to pause any of them for the others.
That creates a sequencing problem that is itself a large part of the defense. Civil discovery can be used to build the criminal case. Asserting the Fifth Amendment in the civil proceeding permits an adverse inference there. Exclusion proceedings can move before any conviction exists.
Courts are generally more willing to stay the civil case once an indictment has been returned than before it — before indictment, showing a mere possibility of prejudice is not enough, and the applicant has to demonstrate something more concrete. The factors courts weigh include whether the proceedings concern the same transactions, how imminent charges are, the parties’ interests, judicial economy and the public interest in the investigation.
On the false-claims side, two Supreme Court decisions shape the exposure. Materiality is a demanding standard — not every regulatory violation is material, and the fact that the government kept paying claims despite knowing of a violation is strong evidence that it was not. And the knowledge question turns on what the defendant actually believed when the claim was submitted, not on whether some objectively reasonable reading of an ambiguous rule could have justified it after the fact.
What we do
We represent physicians, pharmacists, owners and executives of home health agencies, laboratories, DME suppliers, compounding and specialty pharmacies, hospices and management companies — in federal grand jury investigations, at indictment, at trial, and on appeal.
The work includes responding to target letters and grand jury subpoenas, presenting declination submissions before charges are brought, litigating the loss calculation, defending parallel civil false-claims proceedings and exclusion actions, and handling the appeal.
We take these cases as lead counsel and alongside a client’s regulatory or health care counsel where the relationship is ongoing.
Representative results
Federal fraud and kickback charges declined against a physician
A physician under federal investigation in the Northern District of Texas for health-care fraud and receiving kickbacks. The government declined to bring charges.
Federal investigation, Northern District of Texas, 2024.
Federal health-care fraud investigation closed without charges
A physician under federal investigation for medical fraud and kickbacks. After two years of negotiation and meetings with federal officials the investigation was closed with no charges brought.
Federal investigation, 2021.
Questions we are asked
I got a target letter. What does that actually mean?
It means the government believes it has substantial evidence linking you to a crime and expects to seek an indictment. It is not a charge, and it is not the end of the matter — it is the last point at which a declination is realistically available. It also means you should not speak to investigators without counsel, because by this stage they already have the documents and are looking for statements to test against them.
Can charges still be avoided at this point?
Sometimes. A declination submission that engages with the government’s actual theory — the claims data, the clinical records, the financial arrangements — is a real tool, and it works more often than people assume. Both of the results above were investigations that closed without charges. It depends entirely on what the records show.
The billing company made the mistakes. Isn’t that a defense?
It can be, and it is fact-specific. If you told them what was actually done and they made the coding decisions, that is a genuine reliance argument. If the information you gave them was wrong, or you knew what they were submitting, it is not.
How far back can they go?
Further than most people expect. Health care fraud involving a federal program carries an extended limitations period — substantially longer than the general federal period that governs false statements, kickback counts and general conspiracy charges. The practical effect is that conduct you assumed was closed may not be.
There is a civil whistleblower case too. Does that help or hurt?
Usually it complicates things. Civil discovery can be used to build the criminal case, and asserting the Fifth Amendment in the civil proceeding carries consequences there. Courts are generally more willing to stay the civil case once an indictment exists than before. Sequencing those proceedings is part of the defense, not a side issue.
Will I lose my license and my ability to bill?
A conviction for a program-related offense triggers mandatory exclusion, and licensing proceedings follow. These consequences have to be factored into every charging and plea decision from the beginning, not addressed after the criminal case ends.
Everyone in the industry does this. Why am I the one charged?
Common practice is not a legal defense, but it is evidence — of what you understood the rules to be, and of whether your conduct shows the intent the government has to prove. It goes to the knowledge question rather than to the existence of the rule.
If I lose, is the sentence the guideline range?
The guideline range is driven almost entirely by the loss figure, and the loss figure is contestable. Whether the billed amount is treated as the intended loss, whether you get credit for legitimate services, and whether the government can extrapolate all move the range substantially. That litigation is the sentencing.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.