Medicaid Investigation Attorney in New York City

A Medicaid investigation can come from one of several agencies, and each has its own rules, its own evidence-gathering tools, and its own appetite for criminal referral. A Medicaid investigation attorney's job is to figure out which agency is in front of you, what it is actually after, and what gets said and produced before the matter hardens into a case. Call 212-233-1233 or email [email protected].

The Agencies We Respond To

HRA Bureau of Fraud Investigation (BFI) — recipient-side, usually housed at 375 Pearl Street in Manhattan.
Medicaid Fraud Control Unit (MFCU) of the New York State Attorney General — provider-side; has criminal jurisdiction.
Office of the Medicaid Inspector General (OMIG) — audits, overpayment recoveries, corrective action.
HHS Office of Inspector General (HHS-OIG) — federal share, administrative subpoenas.
US Attorney's Office (SDNY / EDNY) — when the case is being grand-juried federally.

What We Do at Each Stage

First Contact

The first letter or subpoena is the cheapest place to fix problems. We file a notice of appearance so that future contact runs through us, not through you or your office staff. We get the scope of the inquiry on paper and pin down the deadlines.

Pre-Interview Investigation

We pull the Medicaid file, the wage data, the EBT/billing history, and (for providers) the patient charts and billing software. We map what the agency probably has against what is true and what is harmful. Decisions about interview, proffer, and document production come out of that map — not out of guessing.

Interview / Proffer

For recipients, we usually do not let the client sit for the BFI interview. For providers, an interview or proffer may make sense, especially if it can take the case off the criminal track. Either way, the choice is informed.

Document Production

Subpoenas to providers must be answered with a privilege log, a retention hold, and a culling process that preserves work product. Subpoenas to recipients usually ask for far more than is required. We narrow scope, produce in stages, and use the production to tell the favorable version of the story.

Negotiation and Resolution

Most investigations end short of indictment. A repayment agreement, a civil overpayment, a corporate integrity agreement, or a Disqualification Consent Agreement is often available where the case was lawyered early. We work toward those outcomes from the first call.

If You Are a Licensed Professional

A Medicaid investigation against a doctor, dentist, nurse, pharmacist, or other licensed professional has two parallel cases — the Medicaid investigation and the licensing case before OPMC, OPD, or the Board of Pharmacy. Reporting obligations and statements in one forum can damage the other. We coordinate both.

OMIG Audits in Detail

OMIG operates under Public Health Law Article 1, and its audits are governed by 18 NYCRR Parts 504, 515, 517, 518, and 519. The agency's tools include desk audits, field audits, on-site reviews, recipient self-disclosure protocols, and the Self-Disclosure Program for providers. An audit is not a criminal investigation, but the same paper trail that produces an overpayment finding can also produce a criminal referral to MFCU.

A typical OMIG audit begins with an engagement letter identifying the audit period, the sample frame, and the records to be produced. Provider obligations under 18 NYCRR Part 504 require maintenance of records for six years from the date the care was furnished. Failure to produce records is treated as if the underlying claim was unsupported — the absence of a chart is treated as a denied claim for audit-recovery purposes.

Most OMIG audits move through several phases: an entrance conference, the records production, a draft audit report, a written objection phase, the final audit report, and a Part 519 administrative hearing if the provider contests the findings. The deadline to demand a hearing is short and jurisdictional — missing it closes the door.

Statistical Extrapolation

OMIG and HHS-OIG rarely review every claim. They pull a probability sample (commonly 100 to 200 claims drawn from a universe of tens of thousands) and extrapolate the error rate across the full population. A $40,000 error in the sample becomes a $4 million overpayment in the demand letter.

Extrapolation is challengeable. The defense looks at sample design, stratification, the choice of point estimate vs. lower-bound estimate, RAT-STATS implementation, sampling-frame errors, and whether the universe of claims is correctly defined. We work with healthcare statisticians and coding experts to attack the methodology and, where the math holds, to negotiate a settlement at the lower confidence bound rather than the point estimate.

Common Audit Findings

The recurring audit findings are familiar across provider types:

Missing or incomplete documentation — no progress note, no signed plan of care, no physician order, no time entries.
Upcoding — a higher-level E/M code than the documentation supports.
Wrong place-of-service code — office vs. facility, telehealth vs. in-person.
Services rendered by an ineligible person — a student, an unlicensed aide, a clinician whose enrollment lapsed.
Services to an ineligible recipient — recipient was incarcerated, out of state, in a nursing facility, or otherwise not Medicaid-eligible on the date of service.
Duplicate billing — same date, same code, different claim form.
Unbundling — billing components of a global code separately.
No medical necessity — documentation does not establish the clinical basis for the service.

Not every finding is fraud. Most are documentation defects, coding disagreements, or training problems — civil overpayments at worst. The defense lawyer's job is to keep the civil findings from being re-characterized as criminal intent.

Recipient Audits vs. Provider Audits

Recipient-side investigations are run by HRA's Bureau of Fraud Investigation in New York City and by local district welfare-fraud units elsewhere in the state. They focus on application accuracy: undisclosed income, undisclosed household members, unreported transfers, and asset-test issues. For long-term-care recipients, the five-year lookback period under federal Medicaid rules drives many of the asset-transfer investigations.

Provider-side investigations are run by OMIG and MFCU and focus on billing accuracy, medical necessity, and kickback exposure. The legal frameworks barely overlap. We staff each kind of case differently and we do not assume that a provider's compliance officer should run a recipient case or vice versa.

Common Provider Scenarios

Home health and home care agencies — aide-time documentation, supervisory visits, CDPAP fiscal-intermediary issues.
DME suppliers — documentation of medical necessity, signed delivery tickets, prescriber relationships.
Medicaid transportation — trip-log accuracy, level of service, ambulette vs. livery.
Dental practices — radiograph documentation, treatment-plan necessity, billing under multiple providers.
Mental health and substance use providers — time-based codes, group vs. individual, telehealth documentation.
Pharmacies — refill-too-soon, brand-vs.-generic, prescriber-validation, 340B issues.
Adult day care and PACE programs — attendance documentation, plan-of-care updates.

Common Recipient Scenarios

Undisclosed earned income or self-employment income.
Undisclosed spouse, partner, or other household member whose income or assets would have changed eligibility.
Asset transfers within the five-year lookback for long-term-care Medicaid.
SSI/Medicaid/SNAP overlap where one program's eligibility was based on data inconsistent with another's.
Out-of-state residency or extended absences.
Inherited assets, settlement proceeds, or lottery winnings not timely reported.

Responding to Subpoenas and Interrogatories

MFCU subpoenas, OMIG document demands, and HHS-OIG administrative subpoenas under 5 U.S.C. App. § 6(a)(4) all carry compliance deadlines and all create production records that follow the case forever. We respond on a defined process:

Issue a written litigation hold the day the subpoena arrives.
Suspend any auto-delete email and document-retention policies that would touch responsive material.
Identify custodians and quarantine their files for collection.
Negotiate scope, date range, and search terms in writing with the agency.
Review for privilege, work product, and Fifth Amendment act-of-production issues.
Produce with a privilege log and a written cover letter that defines the production.

Destruction of records once an investigation is foreseeable is a separate crime under PL Article 215 (Tampering with Physical Evidence) and 18 U.S.C. § 1519, and it converts a defensible civil overpayment into a felony almost overnight. The retention hold goes out the same day the subpoena comes in.

Self-Disclosure

OMIG operates a Self-Disclosure Program for providers who discover billing errors before the agency does. HHS-OIG operates a parallel federal Self-Disclosure Protocol. A well-run self-disclosure can reduce damages, eliminate exclusion exposure, and short-circuit a criminal referral. A poorly run one is a confession with a stamp on it. The decision to self-disclose is one of the most consequential calls in a Medicaid case and should never be made without counsel.

Attorney-Client Privilege During an Audit

Audits create unique privilege risks. A compliance review run by in-house staff is not privileged. A review run by counsel, with an engagement letter that defines the legal purpose, often is. Communications with outside billing consultants and coding auditors are usually not privileged unless they are working under a Kovel arrangement at counsel's direction. We structure internal reviews with the privilege analysis up front so that the work product does not become discoverable.

If You Are a Licensed Professional

Do Not Try to Handle It Alone

Investigators are trained interrogators. They will be friendly, then strict, then friendly again. They will tell you that you can clear this up if you just answer a few questions, and that hiring a lawyer makes you look guilty. None of that is true. Hiring a lawyer makes you protected.

If the investigation has already produced charges or a target letter, see our Medicaid fraud attorney and Medicaid fraud lawyer pages. If a letter just arrived, start with received a Medicaid investigation letter. For the broader practice, see healthcare fraud lawyer and criminal defense lawyer.

If you are under Medicaid investigation, call us at 212-233-1233 or email [email protected]. We are a private firm, not the government. Everything you say to us is confidential.