When the Government Comes Knocking

by Poyner Spruill LLP
Contact

This article will provide an outline of some of the most significant points for hospitals to use when confronted with a formal government investigation under the Criminal or Civil False Claims Act. As noted below, you should refer to your compliance program, which should provide more detailed guidance in these situations. Audits or reviews by government health care programs or state Medicaid program contractors require a less immediate response by the hospital. 

Federal and state enforcement agencies include the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Office of Inspector General for the U.S. Department of Health & Human Services (OIG), Department of Defense (Tricare Health Program), United States Postal Inspection Services, Drug Enforcement Administration, State Medicaid Fraud Control Units, and task forces comprised from these agencies.

Government investigators have the authority and tools to gather information relating to an investigation using many methods, including search warrants, subpoenas, electronic surveillance, and interviews. Investigations come from a wide variety of sources. The government may try to avoid alerting a health care organization that it is under investigation, and the provider often becomes aware of the investigation from the investigative tools used by the government. The particular tools used significantly affect how the provider should respond.

As part of an effective compliance program, a hospital should develop a process and written policy to prepare for situations where a government agent presents a search warrant, subpoena, civil investigative demand, authorized investigative demand, or other legal document, or attempts to conduct interviews of hospital management or employees. Outside legal counsel should be notified of the contact at the earliest possible time. The hospital should make every effort to allow counsel the opportunity to review the legal document or request presented to the hospital, to provide advice and assistance, and to be present when the government agent conducts interviews or has other direct contact with hospital personnel.

Search Warrants

  • A search warrant is issued by a court to grant law enforcement agents the right to search a location and seize certain items. A search warrant indicates that the government is pursuing a criminal investigation. There may be allegations that a facility’s records may have been destroyed or altered. It may be used to initiate an investigation or result from extensive investigative activities already conducted. A hospital should follow the process and guidance in its compliance program for how to respond if served with a search warrant. The compliance policy should cover appropriate cooperation with government agents, while protecting the rights of the hospital to the fullest extent possible.
  • The hospital compliance program should designate a point person and response team for the hospital. Request a copy of the search warrant and review it carefully to determine its scope (note that the affidavit may be under seal and not available). Contact the hospital’s attorney immediately and send a copy of the warrant. Request that the government agent wait for the hospital attorney to arrive before searching or until the hospital may consult with its attorney by telephone.
  • Find out the name of each agency and agent participating in the search. Request to see and copy credentials of each agent and ask for business cards.
  • You are not required to assist the agents during their search, but hospital personnel should not obstruct or interfere with a government investigation. Search warrants are for documents and do not authorize interviews. You do not have to tell agents where the documents are located, nor do you have any obligation to answer questions about the content or meaning of the documents they are examining and seizing. However, any statements you make should be true and accurate.
  • A search warrant authorizes seizure of original records. Ask the agents to accept copies of records that are essential to operations. Request permission to make a copy of all documents seized or arrange for a copy to be provided as soon as possible.
  • Object to any demand for noncorporate or personal records unless specifically identified within the scope of the search warrant. Inform the agents of documents which may be subject to attorney/client privilege and insist that appropriate procedures be followed to protect that privilege.
  • Request that a designated representative of the hospital accompany the agent to any location to be searched. Make a detailed list of the areas searched, the documents or types of documents seized, and any questions asked or information provided.
  • Accept a copy of the inventory but decline to sign the inventory unless you are certain it is detailed and accurate. Tell the agent you do not have authority to sign any document until it has been reviewed by your attorney. After the search, conduct interviews with the employees who monitored the agents and document as much information as possible about what occurred during the search.

Subpoenas

  • A subpoena is a court or administrative order that requires a health care provider to testify or produce documents or other items, or both, at a specified time and place.
  • Subpoenas may be issued by a federal or state court or enforcement agency with jurisdiction over the provider.
  • There are many different types of subpoenas that may be used by the government in conducting health care fraud investigations. These include grand jury subpoenas, civil investigative demands, HIPAA subpoenas, and agency administrative subpoenas issued, for example, by HHS or OIG.
  • The hospital should accept service of a subpoena issued seeking documents or testimony by hospital or staff, and immediately provide a copy of the subpoena to its corporate counsel. Documents or interviews should not be provided at the time of service, as the subpoena will always have a future return date for either documents or testimony sought by the government. 
  • Subpoenas cannot require you to create documents to produce, unless there is agreement to do so as part of discussions with government counsel in responding to the subpoena.
  • The HIPAA privacy rules generally prohibit the hospital from disclosing protected health information. HIPAA contains exceptions for responding to subpoenas, but the rules differ depending on the type of subpoena issued. There are also protections for documents considered attorney/client privileged or work product prepared on behalf of your attorney.

Internal Investigations

Government enforcement actions and investigations make it necessary for a hospital to conduct its own internal compliance investigations. In response to receiving notice of a government enforcement action, the hospital’s compliance program should require an immediate internal investigation. The policy should address in detail how to conduct an internal investigation and the steps to be taken when that investigation is completed. Several important points are discussed below.

  • Immediate efforts must be undertaken to gather and preserve materials relevant to the fraud or other allegations that are the subject of the investigation, even if the government has not yet requested materials or documents.
  • Document retention and litigation hold policies should be in place to preserve relevant materials, especially electronically stored information. Failure to preserve relevant documents or electronic information may be viewed as obstruction of the investigation and result in penalties or other sanctions. Employees must be notified immediately when the hospital implements a litigation hold and informed of its scope.
  • Hospital personnel may also have potential individual exposure in the investigation. Appropriate legal representation for these individuals, separate from hospital counsel, should be in place. Government attorneys should be informed that any contact with the hospital or its employees should be made only through counsel for the hospital. Hospital counsel will advise you regarding legal fees for independent legal counsel for employees. The hospital may decide to enter into a joint defense agreement with these attorneys to participate in the internal investigation. A decision should also be made early on as to whether to hire independent consultants to assist hospital counsel.
  • The scope, method, accountability, and reporting between the attorneys directing the investigation, the consultants conducting the investigation, and the hospital authorizing the internal investigation should be clearly understood. The scope of the internal investigation should also define the subject matter and issues to be reviewed, and to whom within the hospital the law firm and investigative team will be accountable.
  • Conducting the internal investigation requires interacting with members of the hospital staff and may result in negative findings concerning the hospital or certain staff members. If the internal investigation confirms the existence of misconduct, improper billing, or noncompliance, corrective action should be taken and documented to stop any improper practices. Employees who engaged in misconduct should be appropriately disciplined. These steps may assist in obtaining a more favorable outcome and/or mitigating potential penalties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Poyner Spruill LLP | Attorney Advertising

Written by:

Poyner Spruill LLP
Contact
more
less

Poyner Spruill LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.