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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
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Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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This is related to my previous questions. Just a brief background

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This is related to my previous questions. Just a brief background here.
Bought a business two years ago. The seller mis-represented earning because at least half of the earning were not legimate billing to government Medicaid. A civil lawsuit was filed. The defendant has avoided both sheriff and speical bailiffs's summon service. My attorney is trying Warning Order similar to publication. In the meantime, I report the false billing to government Medicaid and Office of attorney general. The government DEA office is also investigating another dental business owned by the defendant. The government investigator said they will not disclose their findings during the investigation. I asked them whether their investigation result can be helpful to my civil case. One investigator said this kind of mis-billing is quite common among doctors. He told me I can consult with Medicaid policy dept regarding whether defendant's conduct is in violation of government's regulation or not. I am a bit confused by that. As a branch of manager of Medicaid audit and investigation unit, don't he know this is a violation or not? Besides, if government does not take serious action, and instead only takes something like educating the defendant what should be the right way of billing, will that be bad to my civil case? I think it is easy to show or convince the defendant's conduct was violation. However if the violation does not end up with government's serious action, how that will affect the civil case? I know that if government is not serious, then there is no point to do qui tam. Does the civil case still have strong ground?
The issue is that they cannot tell you anything until the case is completed and the investigation is referred to the US attorney for determination of whether or not they are going to pursue criminal charges, civil charges or no charges against the doctor. The US attorney has to make a determination and until they do the Medicaid and Medicare investigators cannot tell you anything at all about the case.

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Customer: replied 4 years ago.

Thanks. Let me summarize my question and hope you are able to answer to the point.


1) I am suing the defendant in civil court as mis-representation of business earning and breach of contract (i.e the contract has warantee of financial truth and fairness). In this regards, XXXXX XXXXX asking for the refund of the entire business purchase. In terms of damage caused to plaintiffs, it is large.

2) Because the business is in government healthcare. The business mis-representation also violated government Medicaid's billing regulation and drug prescription rule. But the damage to government may not be significant even if the violation is obvious and conclusive. The US attorney may not pursue this defendant based on damage caused to public or government.


The question: if the government found violation of defendant's conduct in terms of false billing and drug prescription, but the government does not pursue the case further, will that be negative to the civil case?


Let me give you the detail scenario here:

Dr. A is a healthcare business owner. Dr. A hired Dr. B to treat patients from Medicaid, and Dr. A is an absentee owner and he does not practice and treat patient.

Dr. B is a doctor but he is not credentialed to treat Medicaid patient. In KY, a doctor is required to be credentialed by Medicaid program in order to treat Medicaid patients. Because Dr. A owns the business, he wants to make money through Dr. B who cannot treat Medicaid patients. As a result, Dr. A uses his own Medicaid credential to bill Medicaid pretenting he is the doctor who actually treated patients. The Medicaid, without kowing Dr. B actually treated patients, paid Dr. A. Dr. A then take a commisson to pay Dr. B. In this whole process, Medicaid never knows Dr. B. Dr. A also did similar thing to prescribe controled substances like pain management drug to Medicaid patients because Dr. B does not have such license.


When Dr. A sold his business, he failed to disclose above information to the buyer. In the purchase contract, the buyer is waranteed the financial statement are "truth and fair". The buyer also assume the earning are legimate because the doctors produced those earning are suppose to be fully licensed and credentialed and billing (to Medicaid) are legimate. So, the buyer is suing for damage caused by

mis-representation of earning and breaching of contract.


Now from government's point view, Dr. A's conduct is problematic and a violation of the Medicaid regulation. Should the government have known that the true biling used by Dr. A, the government would not have paid him. However, the government may not charge Dr. A on criminal case or fine him because although Dr. A billed for service not rendered by himself, the service was provided by Dr. B. This is a lot of different in the typical fraud case when a doctor billed government for service nobody rendered. Considering cost and other factors, government may only do administration or education correction. This may include warning etc.


Now, the goal of plaintiff and government are different. Defendant caused different damage to plaintiff and government. The question here is whether the plaintiff sitll has ground against the defendant given the government does not pursue the defendant on criminal or other severious punishment including refund or fine.






































































































































No, the fact that the government does not pursue the case criminally or civilly does not necessarily mean that there was no violation and thus it does not necessarily hurt your case. It hurts your case if the government investigation finds there was no violations of any laws, then you could not use that investigation to your advantage in your case against the dentist.
Customer: replied 4 years ago.

Thanks. I am confidence there was a violation of law or policy. Based my conversation with the DEA(Drug Enforcement Administration) investigator, he said clearly that this is a violation. I have this question because when I was reporting this Medicaid billing violation, the investigation branch manager said the billing behavior is quite COMMON. I am not sure the COMMON means acceptable, no violation or what. He asked me to consult with Medicaid policy department for violation. I am confused becase he even cannot explain the policy given he is the investigation branch manager of Medicaid audit & investigation. But from other Medicaid consultation, I heard this is a clear violation.


Will the government call witness (those people who verify that the doctor who billed Medicaid did not practice) to prove the violation? If not, then civil court has to call wintness to verify plaintiff's claim and then consult with government policy/guideline to determine there was violaton or not. But without government's conclusion, how the civil court determine a violation or not? Do the civil court has to wait until the government reaches a conclusion? Or I can ask government to give me a general statement or interpreation indicating that if the secnario I reported are the fact (verified) then that is a violation. With that statement, the civil can determine whether there was violation by the two factors: 1) plaintiff's claim is a fact or not (the court can call wintesses, or check other document);

2) government's policy or government's interpration of the violation guideline. In such a way, there no need to wait for government's investigation results.

Common is not acceptable, it just means many people violate the law this way and Medicaid generally only fines them and do not prosecute them.

Yes, the government will put on witnesses regarding the violation and it is typically their investigator. The government will not give you anything in writing other than the final report when the case is closed as then that report is public record, but you can actually subpoena their investigator who investigated the case and have him testify.

You can subpoena the government investigator to get the information at trial as long as it is not an open criminal investigation.
Customer: replied 4 years ago.

Thanks. That is very helpful. I subpoena government investigator to testify 1) whether the kind of conduct(billing) by the defendant is a violation or not ;

2) whether the defendant commited the kind of conduct. If the government investor has't completed investigation of 2), and cannot answer question 2), then the court can calll witness to independently prove or disapprove 2). Is my understanding correct? I hope the court does not have to wait for the outcome of government's investigation.

Yes you subpoena the investigator an get them to testify as to the investigation if it is closed. If the investigation is still open, then the court would continue your case until the investigation is complete. The "court" does not call any witnesses, you would have to call your own witnesses and get them to testify.
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