Adult Day Care Fraud Defense Attorneys

If agents arrive, call counsel and let the search proceed

Agents executing a search warrant will secure the premises, separate staff and take records, computers and phones. Do not obstruct them, do not argue about the scope on the spot and do not hide or move anything. Call counsel and, where you can, have one manager observe and note what is taken. A search warrant means a judge has already found probable cause to believe evidence of a crime is at the premises, so a criminal investigation is under way. If the search has already happened, gather the warrant and inventory the agents left, and write down for your lawyer who came, who was questioned and what was taken, while it is fresh.

Know your rights, and your staff’s, on interviews

Agents often try to interview owners, directors and staff during a search or at their homes in the days that follow. No one is required to answer agents’ questions, and anyone may decline an interview or agree to speak only with a lawyer present. What is said in those first conversations is written up by the agent and can be used against the program and the person speaking. A false statement to a federal agent is itself a crime, even when it is not made under oath.

Do not tell employees not to cooperate, and do not tell anyone what to say. Instead, tell staff that they may choose whether to speak with agents, that they may ask for a lawyer, that anyone who does speak must tell the truth, and that the program has retained counsel.

Preserve every record, and stop routine deletion

Destroying, altering or falsifying a record to impede a federal investigation is a crime under 18 USC § 1519, even before an investigation has begun. Once the program learns of an investigation, suspend routine deletion of email, text messages and electronic records, keep paper sign-in sheets and transportation logs, and make sure no one shreds, alters or takes anything home.

Identify who is investigating, and what kind of matter it is

Social adult day care cases come from several directions at once. Criminal investigations are run by federal agents, such as the FBI, Homeland Security Investigations (HSI) or HHS-OIG, with the U.S. Attorney’s Office, or by the Attorney General’s Medicaid Fraud Control Unit (MFCU). OMIG audits programs and recovers overpayments. MLTC plans run their own special investigation units and can audit, recoup or end a contract. The Department of Health oversees the benefit itself.

Each one has different powers and different deadlines. Before responding to anyone, learn whether the program, its owners or individual staff are being treated as witnesses (people who may have information), subjects (people whose conduct is being examined) or targets (people prosecutors expect to charge).

Do not fix the files after the fact

A participant file missing an assessment or a service plan is a compliance problem. The same file completed after a search, with a backdated signature, will be treated as evidence of a cover-up and can be a separate crime. Do not add, rewrite or re-sign assessments, service plans, sign-in sheets or attendance records once an investigation has started. If something is missing, tell counsel and let counsel decide what can properly be done.

Compare attendance with billing, day by day

The central question in most social adult day care cases is simple: did the member attend on the days the program billed? In a $68 million case that federal prosecutors in Brooklyn (the Eastern District of New York) charged in October 2024, they alleged that most enrolled members did not attend on the dates billed, and that some were outside the United States on those dates.

Before investigators reach their own conclusions, counsel should review the records that already exist for the period under review and match them against the days billed to each MLTC plan.

Check every file against 9 NYCRR 6654.20 and the OMIG certification

Every social adult day care program that contracts with an MLTC plan must meet the standards in 9 NYCRR 6654.20 and complete an OMIG certification form for each location. The form warns that a false statement may lead to criminal prosecution for a misdemeanor or felony. Investigators compare what the program certified with what its files actually show.

Examine marketing, recruiting and anything of value given to members

Kickbacks are among the most common charges in these cases. The Anti-Kickback Statute, 42 USC § 1320a-7b(b), makes it a crime to knowingly and willfully offer, pay, solicit or receive anything of value to induce or reward the referral of an individual for a service that may be paid for by Medicaid or another federal health care program, and New York law prohibits the same conduct. Cash, gift cards or other gifts to members, and payments to marketers or recruiters for each member they enroll, can all become the government’s case.

Collect every agreement and payment record with marketers, recruiters, transportation companies, home care agencies and fiscal intermediaries, and every payment to members. Counsel needs to see the arrangements before investigators examine them.

Expect payment problems, and plan for them

Under 42 CFR 455.23, once the State determines there is a credible allegation of fraud, it must generally suspend Medicaid payments to the provider, and MLTC plans can be required to suspend their payments as well. MLTC plans can also stop referrals, withhold payment or end the contract. A program with no cash flow cannot fund a defense or keep caring for its members, so the payment side of the case has to be managed from the first day.

Exclusion ends all federal payments, and the deadline to challenge it is short. If the Centers for Medicare & Medicaid Services (CMS) or HHS-OIG sends a notice of proposed exclusion, then under 42 CFR 1005.2(c) a written request for a hearing before an administrative law judge must be filed with the HHS Departmental Appeals Board within 60 days after the program receives it. Receipt is presumed to be five days after the date on the notice unless there is a reasonable showing that it arrived on a different date, so it is safest to count from the date on the notice. A late request is dismissed. Without a timely request, the exclusion takes effect when that period ends. A new license or provider number does not undo an exclusion.

See what one looks like: a CMS notice of proposed exclusion sent to a New York social adult day care program in October 2026 (PDF, identifying details redacted).

Control communications, and decide early who needs a lawyer

Route every contact about the investigation, with agents, OMIG, the Attorney General, MLTC plans or the press, through counsel, and keep a log of each one: the date, who took part, what was asked and what was promised. Statements to a plan or a reporter can reach prosecutors.

Members and their families may be witnesses. Do not discuss the investigation, past attendance records or gifts with them, and never suggest what they should say. If they ask, refer them to counsel.

Owners, directors and staff may need separate lawyers if their interests diverge. Raising that question early protects everyone, including the program.