In last month’s blog, we discussed healthcare fraud through the lens of federal sentencing guidelines. One of the points we brought up was how a sentence would be directly related to how much was billed to either private insurance or Medicare. When a healthcare provider or medical facility attempts to defraud an insurance company for, say, $20 million but only receives $5 million, their sentence is tied to the amount they tried to defraud the company out of, not how much they were actually paid, which in this example is $20,000,000.
Regarding restitution, this same healthcare company would only be responsible for the money they received, which in the example above would be $5,000,000. With that in mind, we will examine how the federal government can reclaim the money taken through fraudulent activity: criminal and civil asset forfeiture. They can seek to seize retirement accounts, bank accounts, and other investments, in addition to property. There may also be instances where federal agents use a search warrant and uncover cash, which they will likely seize and use toward restitution.
It is important to note that asset forfeiture is not a tactic the government can use at will, regardless of the crime they are investigating. In a criminal Indictment, it must be pled. However, it has become a common approach the government uses to deal with fraudulent activities. Federal authorities will utilize their authority to subpoena financial documents, use their experts to analyze these records, which can ultimately result in a federal seizure warrant.
In addition to everything we just discussed, the government may seize your company assets, personal property, and potentially your property. Before we continue, it is relevant to establish that many states carry homestead laws. For example, Florida residents can file yearly to have their primary residence protected under this law. Though there are several exceptions, it essentially prevents a creditor from taking your home to satisfy a judgment levied against you. Many clients charged with a federal Indictment ask me, “how can they try and take my home when I have homestead?” Because this is a state law, not federal; and it will not provide you any legal protection against the federal government if they want to seize your home.
One of the tactics the United States government will employ, even while the case is pending, is filing a lis pendens on your home. Although you will be allowed to remain in the house, anyone who wants to buy your home after it has been filed will discover through a basic title search that the house is potentially going to be seized by the government.
When looking at what can be seized, the law states they can come after “any property traceable to such property.” In other words, in addition to taking the money gained through fraudulent activities, they can also seek the assets purchased with that money. To make this even more complicated, the government can also try to seize property, not directly attributable to criminal activity, as a “substitute asset” to cover forfeiture and restitution.
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This is an immensely complicated process. Whether the government is seeking forfeiture through a criminal Indictment or via a civil forfeiture, it is important that you seek advice. Our attorneys have extensive experience assisting doctors, nurses, and pharmacists charged with healthcare fraud. Attorney Sabrina Puglisi is a Florida Board Certified Criminal Trial attorney and will aggressively defend your case. Contact our office today to schedule a consultation.