Set Up an Offense for Investigators Who are at Your Door
By Robert A. Pelaia, Esq., CPC
“The best defense is a good offense.”
This cliché is used most in the military or sports world, meaning the best way to defend yourself is to go on the offensive. In other words, you should defeat your opponent before your opponent defeats you. The theory behind the quote can be attributed to many individuals, including German military theorist Carl von Clausewitz, football coaching legend Vince Lombardi, and the Roman poet Ovid, who asked in 8 A.D., “Isn’t the best defense always a good attack?” Regardless of the origins of this phrase, it is good advice in the health care compliance arena, as well.
For a practice to survive in this day and age, providers need to offer high-quality medical care on the front line and work as top notch business managers behind the scenes. Unfortunately, the business side of medicine contains many complex fraud and abuse laws, on both the federal and state level. Billing errors and omissions may result in violations of these laws and prompt government investigations.
The complexities surrounding government subpoenas, interviews, and search warrants are immense, but it’s the lesser-thought-about nuances that potentially can cause compliance problems for health care providers. In this article, we’ll focus on ways you can affectively respond to various government-initiated investigations.
A search warrant is a document issued by the court or a magistrate. It permits government agents to search and seize tangible property described in the search warrant or located in an area specifically identified as covered by the search warrant. A search warrant is to obtain documents only―both hard copies and electronic copies. It is not for testimonial evidence.
The best defense:
- Obtain the card or name and agency of the officer presenting the warrant.
- If a search warrant is being served, contact legal counsel or your compliance officer immediately.
- Preventing an agent from removing medical records or documents subject to the search warrant is difficult: You need to respond appropriately because intentional obstruction could result in other charges.
- In today’s electronic world, search warrants usually contain a provision allowing retrieval of computer records. Have an internal computer expert work with the agents to download the information in a correct manner. If you refuse to cooperate, the agents may decide simply to take your computer equipment out the door with them. We all have seen the news video footage of federal agents removing desktop and laptop computers from a business under investigation. You do not want that to happen to you.
There are two subpoena types: a basic subpoena and a subpoena duces tecum. With either kind, the organization is required to respond only within the scope of the request noted in the subpoena.
A subpoena is a court or administrative order issued by a government agency requiring a person to appear and testify in court or to an agency. Depending on state or federal law, it may be delivered (i.e., served) either in person, by mail, or by leaving the subpoena at a home or place of business.
A subpoena duces tecum directs a person to bring certain documents, such as medical or billing records, to court or to give these documents to a government agency. The subpoena duces tecum also may require the person to accompany the records and testify as a witness.
The best defense:
- Take the subpoena immediately to your legal counsel or compliance officer.
- You are not required to provide the responsive documents right away, even though the agent may ask for them.
- It’s a good idea to wait until the compliance date on the subpoena so you can formulate an appropriate and accurate response.
Responding to Search Warrants and Subpoenas
Advance preparation is the most important thing a practice can do to respond to government investigations. A good offense to an external audit includes putting policies and procedures in place that provide guidance and answer the following questions:
- What might happen?
- Who needs to be contacted?
- Who’s in charge?
When possible, designate one person within the facility to coordinate a response in the event of a subpoena or search warrant. Then, incorporate the following points into your plan of attack.
- Make it known throughout your internal policies and procedures that an employee is not authorized to provide confidential facility documents to anyone, including a law enforcement officer, without a valid subpoena, search warrant, or court order.
- Verify the scope of the subpoena or search warrant. The scope of an agent’s search or seizure is limited to the scope declared in the subpoena or warrant.
- Bring it to the agent’s attention if searched items or areas are not listed specifically in the warrant. An agent is not allowed to access any document or property other than those described in the subpoena or warrant.
- Do not volunteer any document or information that is not specified in the subpoena or search warrant.
- You can and should request to make copies of the medical records (or other documents) being seized to provide continual patient care.
Know Your Rights
Individual employees have the right not to interview, to schedule it for a time when it is more convenient, to start an interview and then cease in the middle whenever they want, and to have a lawyer present.
- Most likely, you will need to assert your rights because the government agent might not do it for you. In fact, the agent might act surprised and offended if you try to assert your rights. Individuals assert these rights all the time and the agent is not surprised, although he or she may act surprised. Do not be frightened by questions like: “Why do you need a lawyer?” or “What do you have to hide?”
- Do not be intimidated into giving an interview for which you aren’t fully prepared. Law enforcement officers are trained in intimidation tactics because they know that the best chance of getting an admission or confession is at their initial encounter. Take the time to review the files to refresh your recollection of events before giving an interview. You can delay until you are prepared to be completely accurate. Unless you are under arrest, the agents cannot detain you.
- There may be someone else at the facility who is more knowledgeable on the issue being investigated. Feel free to direct the agent to someone else who might give a more accurate response.
- Employees should only communicate with agents when required to do so.
- Don’t guess or speculate. A false statement to an agent can be a crime. You need to be absolutely certain that everything you say is truthful, accurate, and correct. Contrary to popular belief, Martha Stewart did not go to jail for insider trading. She was sentenced for obstruction of an agency proceeding and for making false statements to federal investigators. Basically, she went to jail for lying.
- If you are interviewed, prepare written notes of what occurred and what was discussed during the interview. Like your ICD-9-CM coding, prepare your notes with the highest degree of specificity. Agents may get things confused, particularly in the complex area of medical billing. Your notes may be the only accurate record of the conversation two years from now.
Proliferation of federal and state government-initiated investigations has made it essential for health care organizations to create a premeditated response and strategy for handling such investigations. A critical aspect of responding to any external investigation is defining the organization’s expectations and managing those expectations as the investigation continues. This entire process starts when the subpoena or search warrant arrives, so practices need to be prepared. Now is the time to implement policies and procedures that will let employees know what to expect in case the unexpected takes place. Build up your offense for a good defense.