Attorneys defending Medicare providers in Federal Health Care Fraud (18 U.S.C. §1347) trials should be prepared for the government to file motions in limine seeking to introduce highly prejudicial evidence from prior Medicare civil overpayment recovery efforts that can frequently precede criminal charges. These overpayment recovery efforts are implemented by Recovery Audit Contractors (“RACs”) or Zone Program Integrity Contractors (“ZPICs”) collectively the “Contractors.” Medical providers who bill Medicare Part B services on a “fee for service” basis will receive notice from a contractor that they have received Medicare “payments in error” or “overpayments,” and the contractor will demand that the provider return the money. The administrative proceedings that follow provide ripe opportunities for the prosecution to pick poison fruit.
A contractors’ opening letter usually tells a provider that it has identified “payment in error,” or that a provider is billing more for a service than his or her peers and thus a review is required. Contractors will state that their mission is to promote program “integrity” and that they are tasked with combating “fraud, waste and abuse” in the Medicare program. Thus, initial boilerplate documents can begin tainting a provider’s character before a criminal jury regardless of whether the provider successfully appealed a Contractor’s initial overpayment demand.
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