Attorney for Upcoding Medical Claims

An allegation that you or your practice engaged in upcoding can threaten everything you have built as a healthcare provider in New York City. What may begin as a routine billing audit or a records request from an insurer can quickly escalate into a civil investigation, recoupment demand, exclusion from Medicaid, professional discipline, or even criminal prosecution. If you have received an audit letter, subpoena, or notice of investigation related to your billing practices, the time to involve an experienced New York healthcare fraud defense attorney is now—before you respond, produce records, or speak with investigators.

Our firm represents physicians, dentists, chiropractors, physical therapists, behavioral health providers, clinics, billing companies, and other healthcare professionals throughout New York City facing upcoding allegations. We understand both the clinical realities of medical coding and the aggressive enforcement environment providers face under New York law.

What Is Upcoding?

Upcoding occurs when a healthcare provider bills a payer—such as Medicaid, Medicare, or a private insurance company—using a billing code that reflects a more complex, more expensive service than the one actually performed or documented. Because reimbursement is tied to Current Procedural Terminology (CPT) codes, Evaluation and Management (E/M) levels, and diagnosis codes, even small coding differences can significantly change payment amounts.

Common upcoding allegations include:

• Inflated E/M levels: Billing a Level 4 or Level 5 office visit when documentation supports only a Level 2 or 3 encounter.
• Billing for more time than provided: Submitting time-based codes for therapy, counseling, or anesthesia that exceed the actual duration of treatment.
• Misrepresenting the provider: Billing services performed by a nurse, technician, or physician assistant as though performed personally by a physician at a higher rate.
• Exaggerated diagnoses: Assigning more severe diagnosis codes to justify higher-level services or increase risk-adjusted payments.
• Unbundling and related schemes: Although technically distinct, unbundling—billing separately for services that should be billed under one comprehensive code—is frequently charged alongside upcoding.

It is critical to understand that not every coding discrepancy is fraud. Coding rules are complex, frequently updated, and often ambiguous. Honest disagreements about documentation, reasonable interpretations of coding guidance, and errors made by third-party billers are not the same as intentional fraud—but prosecutors and auditors do not always see it that way. Building that distinction is the heart of an effective defense.

Who Investigates Upcoding in New York City?

Providers in New York City face scrutiny from multiple overlapping agencies, each with its own powers and procedures:

• The New York State Office of the Medicaid Inspector General (OMIG): OMIG conducts audits and investigations of Medicaid providers, issues recoupment demands, imposes penalties, and can exclude providers from the Medicaid program.
• The New York Attorney General's Medicaid Fraud Control Unit (MFCU): MFCU pursues both civil and criminal cases against providers accused of defrauding Medicaid, often using subpoenas, undercover operations, and data analytics.
• The New York State Department of Health and the Office of Professional Medical Conduct (OPMC): Billing fraud allegations frequently trigger parallel professional discipline proceedings that can result in license suspension or revocation.
• Federal agencies: Where Medicare or other federal programs are involved, the Department of Health and Human Services Office of Inspector General and federal prosecutors may participate.
• Private insurers and Special Investigations Units (SIUs): Commercial payers conduct their own audits, demand repayment, terminate network agreements, and refer matters to law enforcement.

New York Laws Governing Upcoding Allegations

New York Penal Law Article 177 – Health Care Fraud

New York criminalizes health care fraud under Penal Law Article 177. A provider commits health care fraud by knowingly providing materially false information to a health plan in order to receive payment to which the provider is not entitled. The severity of the charge depends on the dollar amount involved:

• Health care fraud in the fifth degree is a Class A misdemeanor.
• Fourth degree (over $3,000 in a one-year period) is a Class E felony.
• Third degree (over $10,000) is a Class D felony.
• Second degree (over $50,000) is a Class C felony.
• First degree (over $1,000,000) is a Class B felony carrying the potential for substantial state prison time.

Because upcoding allegations typically involve patterns of claims aggregated over time, even modest per-claim differences can push a case into serious felony territory.

The New York False Claims Act

Under State Finance Law sections 187 through 194, the New York False Claims Act allows the Attorney General—and private whistleblowers, known as relators—to bring civil actions against providers who knowingly submit false claims to state-funded programs. Liability includes treble damages plus per-claim penalties, which can multiply quickly when hundreds or thousands of claims are at issue. Notably, whistleblower lawsuits are often filed under seal, meaning a provider may be under investigation for months or years before learning of the case.

Social Services Law and Related Provisions

Social Services Law section 145-b prohibits obtaining public assistance funds, including Medicaid payments, by false statements or concealment, and authorizes significant civil penalties. Providers may also face charges such as grand larceny, falsifying business records, and offering a false instrument for filing under the Penal Law, each carrying its own consequences.

Consequences of an Upcoding Allegation

The stakes extend far beyond a repayment demand. Depending on the forum and outcome, providers may face:

• Criminal conviction, fines, restitution, and incarceration
• Treble damages and civil penalties under the New York False Claims Act
• Recoupment of payments, often extrapolated from a small audit sample to an entire universe of claims
• Exclusion from Medicaid and other government programs—frequently a career-ending sanction
• Termination from commercial insurance networks
• Professional discipline, including license suspension or revocation
• Reputational damage that affects referrals, employment, and hospital privileges

How We Defend Upcoding Cases

Every case is different, but effective defense strategies in New York upcoding matters often include:

Challenging Intent

Both criminal health care fraud and False Claims Act liability require knowing conduct. We work to show that billing discrepancies resulted from documentation lapses, ambiguous coding guidance, software defaults, staff error, or reasonable clinical judgment—not deliberate fraud.

Attacking the Audit Methodology

Auditors frequently rely on statistical extrapolation, projecting findings from a small sample across years of claims. We retain independent coding experts and statisticians to challenge flawed sampling, improper extrapolation, and coding determinations that ignore the full medical record.

Demonstrating Medical Necessity and Documentation Support

A claim is not upcoded if the documentation, properly read, supports the level billed. We conduct our own chart reviews to rebut auditor conclusions code by code.

Negotiating Resolution

Where exposure exists, early and strategic engagement with OMIG, MFCU, or prosecutors can resolve matters civilly, reduce repayment amounts, avoid exclusion, and prevent criminal charges from ever being filed.

Protecting Your License in Parallel Proceedings

We coordinate the defense across criminal, civil, administrative, and professional discipline tracks so that statements or settlements in one forum do not create damaging admissions in another.

What to Do If You Are Under Investigation

1. Do not speak with investigators without counsel. Statements made in informal interviews are routinely used against providers later.
2. Preserve all records. Never alter, supplement, or destroy charts or billing records after learning of an audit or investigation—doing so can transform a defensible case into an obstruction or falsification charge.
3. Do not respond to audit findings or repayment demands on your own. Deadlines matter, and an incomplete or poorly framed response can waive defenses.
4. Engage counsel early. The earlier we are involved, the more options exist to shape the outcome.

Speak With a New York City Upcoding Defense Lawyer Today

Upcoding allegations move fast, and the agencies investigating you began preparing long before you received your first letter. Our New York City healthcare fraud defense attorneys bring deep knowledge of New York's billing fraud statutes, the agencies that enforce them, and the coding and documentation issues at the center of these cases. Whether you are facing an OMIG audit, an MFCU subpoena, an insurer's SIU inquiry, or criminal charges, we are prepared to protect your practice, your license, and your liberty.

Contact our office today for a confidential consultation. The sooner you act, the more we can do to defend you.

You can contact us by phone at 212-233-1233 or by email at [email protected].