Medicaid Fraud Subpoena (MFCU)

Find Out What You Need to Know if You Received a Medicaid Fraud Subpoena from an MFCU

Attorney Nick Oberheiden
Medicaid Fraud Subpoena Team Lead envelope icon

Medicaid fraud is a significant concern for both the federal government and the state agencies that administer Medicaid programs. To combat Medicaid fraud and abuse, Medicaid Fraud Control Units (MFCUs) in all 50 states and Washington D.C. investigate suspected instances of fraud and abuse, and they work with state and federal law enforcement agencies to pursue civil or criminal charges as warranted.

One way MFCUs gather information about suspected fraud and abuse regarding federal laws, including the False Claims Act, is by issuing Medicaid fraud subpoenas. If you have received a Medicaid fraud subpoena from an MFCU, it is important that you engage experienced defense counsel promptly. Medicaid fraud investigations present substantial risks, and avoiding mistakes when responding to an MFCU subpoena is critical for avoiding unnecessary consequences.

You Received a Medicaid Fraud Subpoena—What Now?

Avoiding mistakes when responding to a Medicaid fraud subpoena from an MFCU requires informed and strategic decision-making. With this in mind, here are some important insights from our attorneys:

1. An Immediate Response is Critical

Once you receive a Medicaid fraud subpoena from an MFCU, the clock starts ticking. You need to respond—and you need to respond in time in order to avoid unnecessary consequences. Upon receiving a subpoena from an MFCU, your immediate steps should include:

Review the subpoena carefully to determine your deadline to respond
Implement a “legal hold” to ensure that no relevant documents get erased or destroyed
Begin the process of identifying the location of relevant files (both electronic and hardcopy)
Annotate or segregate any files that may be subject to privileges against disclosure
Ensure that no one within your organization communicates with the MFCU unless specifically authorized to do so

When health care providers and other clients engage us for responding to MFCU subpoenas, we assist them with taking these steps—among many others. We ensure that our clients have all of the information and assistance they need to protect themselves, and we leverage our experience to help them respond to their subpoenas without exposing themselves to unnecessary scrutiny or liability.

2. A Careful Response is Also Critical

While it is important to respond immediately, it is just as important to respond carefully. When responding to Medicaid fraud subpoenas, recipients must be equally careful to ensure that they both: (i) provide all documents they are required to provide; and, (ii) avoid providing any privileged documents or documents that fall outside of the scope of the subpoena. Failing to provide required documents can create the impression that you have something to hide, while providing documents that aren’t required will give the MFCU the opportunity to expand the scope of its investigation.

3. You May Have Grounds to Challenge the Subpoena

When preparing the initial response to a Medicaid fraud subpoena, it is important to determine if you have grounds to challenge the subpoena as well. In some cases, MFCUs overreach—and, when this happens, complying with a subpoena can lead to costs and exposure that could (and should) have been avoided. Along with assessing our clients’ response obligations, we assess their options for challenging their subpoenas as well; and, when a challenge is warranted, we take appropriate action on our clients’ behalf.

4. You May Also Be Able to Negotiate the Scope of the Subpoena with the MFCU

While challenging a Medicaid fraud subpoena will be warranted in some cases, in others a more collaborative approach may be advisable. Sometimes, working with (rather than against) an MFCU during its investigation can help facilitate an efficient and favorable resolution. If, for example, the MFCU’s subpoena is arguably unenforceable due to being overly broad, challenging the subpoena in court may only serve to delay an inevitable response. When this is the case, negotiating the scope of the subpoena with the MFCU could serve to open a dialogue that sets the stage for an amicable resolution—regardless of what the MFCU ultimately finds.

5. You Need to Know What (if Anything) the MFCU Will Find

In this same vein, knowing what (if anything) the MFCU will find is also essential. Only when you have a clear understanding of what is at stake can you make informed and strategic decisions about how best to proceed. When we represent clients during Medicaid fraud investigations, we prioritize conducting an independent (and attorney-client privileged) compliance assessment so that we can develop a defense strategy that is tailored to the circumstances at hand.

6. Allegations of Medicaid Fraud Can Have Serious Consequences

Regardless of the circumstances involved, facing allegations of Medicaid fraud can have serious consequences. Not only can these allegations lead to recoupment, denial of pending claims, prepayment review, and other civil and administrative penalties, but they can also lead to criminal penalties in some cases. If MFCU personnel uncover evidence of intentional billing fraud or other criminal misconduct through a Medicaid fraud subpoena, they can work with prosecutors to pursue criminal charges that carry fines and prison time.

7. There is No Going Back Once You Provide Information to an MFCU

Whether you are required to provide information in response to a Medicaid fraud subpoena or not, there is no going back once you provide information to an MFCU. This is one of the main reasons why it is imperative to ensure that you do not inadvertently disclose privileged information or voluntarily provide records that you aren’t required to disclose (unless it is strategically advantageous to do so). By working with experienced defense counsel throughout the response process, you can ensure that you are meeting your legal obligations without creating unnecessary legal exposure.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Potential Issues in Medicaid Fraud Investigations

Medicaid Fraud Control Units use subpoenas to investigate a wide range of suspected offenses. As a result, when faced with a Medicaid fraud subpoena, understanding why the MFCU is investigating is also critical. Some examples of potential issues in Medicaid fraud investigations include:

Medicaid billing fraud (i.e., overbilling, double billing, unbundling, or billing for non-covered items or services)
Improper direct patient billing
Providing substandard care to Medicaid beneficiaries
Abusing or neglecting Medicaid beneficiaries
Otherwise violating the requirements for Medicaid participation in the program

At Oberheiden P.C., we have significant experience representing healthcare providers and other clients facing all types of allegations from MFCUs, healthcare enforcement authorities and federal agencies. Regardless of the allegations at issue, if you are facing an investigation, we can use our experience to execute an informed defense strategy focused on securing a favorable resolution that protects your ability to bill Medicaid while avoiding unnecessary consequences.

FAQs: Responding to a Medicaid Fraud Subpoena

What is a Medicaid Fraud Control Unit (MFCU)?

A Medicaid Fraud Control Unit (MFCU) is a state law enforcement agency that is responsible for enforcing compliance with the Medicaid billing rules and eligibility criteria. As the U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG) explains, MFCUs “employ teams of investigators, attorneys, and auditors,” and they work alongside HHS OIG and other state and federal authorities to pursue both civil and criminal charges against healthcare providers and other entities within the Medicaid program..

What Does It Mean if I Received a Subpoena from an MFCU?

If you received a subpoena from an MFCU, this most likely means that the MFCU is looking into your business or practice’s Medicaid billing history for medicaid provider fraud or medicare fraud. With that said, there are other possible reasons as well, and making informed decisions about your next steps will start with understanding why the MFCU issued the subpoena.

What Are the Penalties for Medicaid Fraud?

Allegations of Medicaid fraud can impose civil monetary penalties and criminal penalties. In civil enforcement cases, targets can face Medicaid-related penalties (i.e., recoupments, prepayment review, and exclusion) along with monetary fines. In criminal enforcement cases, targets can face fines and prison time.

Is Medicaid Fraud a State or Federal Offense?

Medicaid fraud violates both state and federal law. In cases involving substantial Medicaid fraud, it is not unusual for both state Attorneys General and the U.S. Attorney’s Office to pursue criminal charges. When facing parallel proceedings at the state and federal level, targeted entities and individuals must be able to rely on highly experienced defense counsel to protect them to the fullest extent possible.

Do I Need a Lawyer if I Received a Medicaid Fraud Subpoena?

Yes, if you received a Medicaid fraud subpoena from an MFCU, you should speak with a lawyer right away. Specifically, you should speak with a lawyer who has extensive experience representing clients in Medicaid fraud matters. At Oberheiden P.C., we represent healthcare providers and other clients facing Medicaid fraud investigations nationwide, and we can use our experience to help protect you by all means available.

Speak with a Medicaid Fraud Defense Lawyer in Confidence Today

If you need to respond to a Medicaid fraud subpoena from an MFCU, we encourage you to contact us immediately. We can guide you step-by-step through the process while corresponding with the MFCU on your behalf. To speak with a senior Medicaid fraud defense lawyer at Oberheiden P.C. in confidence as soon as possible, call 888-680-1745 or tell us how we can reach you online now.